EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - previous representation made by an unavailable person to give evidence - Need for Crown to put its case in examination-in-chief - accused not competent to give evidence as a witness for the prosecution - evidence admissible but cannot be put in cross-examination not having been adduced in Crown case

Evidence Act 2011 (ACT), ss 9, 12, 17(2), 26, 29, 36, 65, 65(2), 65(2)(a), 65(2)(d), 65(3), 65(4), 65(5), 81, 85, 86, Dictionary

Road Transport (General) Act 1999 (ACT), ss 58, 60

R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308

R v O'Meally [1952] VicLawRp 65; [1952] VLR 499

R v Parkes [2003] NSWCCA 12; 147 A Crim R 450

R v Soma [2003] HCA 13; 212 CLR 299

The Honorable J.D. Heydon, Cross on Evidence (Butterworth LexisNexis, 1996) Looseleaf, (Service 195) Vol 1

1. On 28 January 2014, the accused, Darin Keir, entered a house in Latham, ACT, with two other people, Paul Palmer and one other male. Mr Palmer wielded an axe handle while in the house and then the three males left. Mr Palmer drove away in a car of one of the occupants of the house.

2. As a result of these events, Mr Keir has been charged with aggravated burglary of the premises, the circumstances of aggravation being that he was in company with Mr Palmer and the other male. He has also been charged with robbery in company and, in the alternative, with dishonestly take someone else's motor vehicle without their consent. The aggravated robbery is alleged to have been committed as a joint criminal enterprise with Mr Palmer and the third male and the other offences as a joint criminal enterprise with Mr Palmer.

3. The Crown case is that one of the occupants of the Latham premises, Brent Dopson, owed Mr Keir money for drugs that had been purchased but not delivered and Mr Keir, Mr Palmer and the other male had gone to the house to collect that money. Mr Palmer pleaded guilty to the burglary of the Latham premises and had, at the time of Mr Keir's trial, been sentenced for that offence.

4. Mr Keir was earlier tried before a jury but the jury was discharged before they could return a verdict. The second trial of Mr Keir commenced on 11 April 2016. The next day the Crown closed its case.

5. Mr Keir was then called in his own case and proceeded with his evidenceinchief. In his evidence, Mr Keir said that the journey that he, Mr Palmer, and third male had made to Latham was as follows:

And after you dropped the car to your mum's house where did you go then? --- That's when we went to Brent's house.

Okay, Mr Dopson's house? --- Yeah.

So you've dropped off the car at your mum's house. You then drive to the Dopson's house. Now, when you get to the Dopson's house what happens? --- We just hopped out of the car. I thought - Paul had told me that he had spoken to them and the money was there to get picked up. So we went - I presume we just - we got out of the car and went to - it was open, the screen door, got to the door and the dad answered the door.

6. In crossexamination, the Crown sought to put to Mr Keir statements that he had made when he gave evidence at his earlier trial. In particular, the Crown Prosecutor proposed to put to Mr Keir that he had said:

I didn't want to go there. The only reason I went there was to make sure he [Mr Palmer] didn't do something stupid to those people [the occupants of the Latham house] who had done, really, nothing wrong.

7. Mr J Lawton, counsel for Mr Keir, objected to the question. He submitted that the evidence of what Mr Keir had said at the earlier trial had not been led in the Crown case and that to attempt to have it now admitted in crossexamination of Mr Keir was impermissible.

8. I ruled that the question in crossexamination should not be put. These are my reasons.

9. In R v Soma [2003] HCA 13; 212 CLR 299 at 308-9; [28]- [31], Gleeson CJ, Gummow, Kirby and Hayne JJ addressed the requirements on the Crown to adduce its evidenceinchief. In that case the accused was charged with rape. He gave evidence about events immediately preceding the alleged rape. In cross-examination he was asked if certain acts alleged had then occurred and, when he described them, he was asked about whether he had made a statement to the police in which he had admitted that the events occurred. He subsequently denied that. The prosecutor played part of the taperecording of the interview he gave to police. The Court ruled that the tape was inadmissible in the crossexamination of the accused as it had not been led in the Crown case.

[28] That the prosecution must offer all its proof before an accused is called upon to make his or her defence is a general principle of long standing.

[29] ... what is now clear is that it is for the prosecution to decide what witnesses will be called and "determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused". That power is not unconfined. In particular, if an accused objects to the course which the prosecution takes in presenting its case, the objection must be resolved by applying principles which include the general rule that the prosecution must offer all its proof before the accused is called on to make his or her defence.

[30] In the present case, the prosecution had available to it evidence of statements made by the respondent to police. The Prosecution called the interviewing police officer. In this Court it was accepted that the statements which the respondent made to police were adverse to his interests; they were not merely and exclusively self-serving denials. If there were doubts about the admissibility of the record of interview, those doubts could have been resolved on a voir dire. If necessary, the record of interviews could have been edited to exclude any objectionable parts. None of these steps was taken.

[31] If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him. To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent's trial, was bound to put them in evidence before the respondent was called upon to decide the course he would follow at his trial. To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury...

(footnotes omitted)

11. Thus, Mr Lawton submitted, the statement made by Mr Keir at his first trial was not admissible in crossexamination unless it had been earlier admitted in the Crown case.

12. Mr M Reardon, the Crown prosecutor, did not challenge that submission but submitted that it was irrelevant for the statement on which he wished to rely would have been inadmissible in the Crown case as it was exculpatory.

13. Mr Lawton submitted, however, that it was admissible under s 65 of the Evidence Act 2011 (ACT). That section is relevantly in the following terms:

Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard, or otherwise perceived the representation being made, if the representation -

• (a) was made under a duty to make that representation or to make representations of that kind; or
• (b) was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication; or
• (c) was made in circumstances, that make it highly probably that the representation is reliable; or
• (d) was -
  1. against the interests of the person who made it at the time it was made; and
  2. made in circumstances that make it likely that the representation is reliable.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in the proceeding to which this section is being applied -

• (a) cross-examined the person who made the representation about it; or
• (b) had a reasonable opportunity to cross-examine the person who made the representation about it

(4) If there is more than 1 defendant in the criminal proceeding, evidence of a previous representation that -

• (a) is given in and Australian or overseas proceeding; and
• (b) is admitted into evidence in the criminal proceeding because of subsection (3);

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.

(5) For subsection (3) and subsection (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but -

• (a) could reasonably have been present at the time; and
• (b) if present could have cross-examined the person.

(6) Evidence of the making of a representation to which subsection (3) applies may be presented by producing a transcript, or a recording, of the representation that is authenticated by -

• (a) the person to whom, or the court or other body to which, the representation was made; or
• (b) if applicable, the registrar or other proper office of the Court or other body to which the representation was made; or

(c) the entity responsible for producing the transcript or recording.

14. Mr Lawton submitted that the statements made at the earlier trial would be admissible as Mr Keir was, so far as the Crown was concerned, not available under s 65(2)(a) and (d) of the Evidence Act, which would have permitted their admission.

15. Mr Reardon submitted that s 65(2)(a) did not apply to such statements as they were not representations that Mr Keir had a duty to make and that s 65(2)(a) did not apply as the statement on which he relied was exculpatory.

16. I ruled that the question could not be put in crossexamination.

17. I accept that the R v Soma is clear authority for the proposition that, if the statements made by Mr Keir at his earlier trial were admissible in this trial, then the Crown was obliged to adduce the evidence before it could put that material to Mr Keir in crossexamination. As I noted above at [12], the Crown did not challenge this proposition. The real issue, then, is whether the evidence given by Mr Keir at the earlier trial was inadmissible, which revolved around whether it was admissible under the Evidence Act and, in particular, as the argument had it, s 65 of that Act.

18. I accept for the purposes of that section that, so far as the Crown was concerned, Mr Keir was unavailable. Section 17(2) of the Evidence Act provides that an accused person is not competent to give evidence as a witness for the prosecution. Part 2, paragraph 4 of the Dictionary of that Act provides that:

(1) For the purposes of this Act, a person is taken to not be available to give evidence about a fact if:

(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give evidence [about the fact].

19. Accordingly, as Ipp JA held in R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 at 459; [48]:

Thus, a defendant in criminal proceedings is not competent (and hence not "available") to give evidence as part of the prosecution case, but is competent (and "available") to give evidence as part of his or her own case.

20. I am, therefore, prepared to find that, in the Crown case, an accused is unavailable to give evidence and that then brings into operation, inter alia, s 65 of the Evidence Act.

21. As is clear from that section, set out above (at [13]), there are specific circumstances where a previous representation of a person who is unavailable may be admitted in criminal proceedings to prove the existence of a fact, which circumstances are relevantly set out in sub-ss 65(2)-(5) of the Evidence Act.

22. I turn first to s 65(2) of the Evidence Act and note the two provisions relied on by Mr Lawton - s 65(2)(a), (which I will call the duty provision), and s 65(2)(d), (which I will call the interest provision).

23. There has been, so far as I can find in the short time available to me, little discussion, in the authorities of the duty provision. While it has some relationship to the common law, it does not seem to be bound by the common law conditions of eligibility for statements made under a duty, as was said by the Honorable J.D. Heydon in Cross on Evidence (Butterworth LexisNexis, 1996) Looseleaf, (Service 195) Vol 1 at 35,183; [35-490]:

The origins of section 65(2)(a) lie partly in the Australian equivalent to the Evidence Act 1938 (Eng) and partly in the requirements for duty in various common law exceptions, but 65(2)(a) goes well beyond these origins. Unlike the former model, it operates in criminal cases. Unlike the latter model, the duty is very general and the representor need not be dead.

(footnotes omitted)

24. The form of the duty provision does not limit such representations to written statements (see R v O'Meally [1952] VicLawRp 65; [1952] VLR 499 at 500), nor is it clear that the duty must be one to record or report the declarant's acts. The term "duty" is unconfined in the duty provision.

25. While the common law is retained, except as otherwise expressly or by necessarily intendment excluded (s 9 of the Evidence Act), it does not seem to me that the duty provision should be limited by what was required at the common law so far as the duty is concerned. The extension of the provision and the terms of the duty provision do not suggest that this should be so.

26. For example, it seems to me that the duty of a person to provide information to police under provisions such as ss 58 and 60 of the Road Transport (General) Act 1999 (ACT) would be a duty that would permit the answer to such police questions to be admissible under the duty provision.

27. Nevertheless, as with other provisions in the Evidence Act, for example tendency evidence (R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at 322; [60]), the common law can "guide" the application of the statutory provisions. I see nothing in the common law, however, that would require me to construe the duty provision so as to exclude evidence given in court proceedings such as in this case.

28. The Crown submitted that the duty of a witness in court proceedings flows from the oath or affirmation taken by the witness, namely to tell the truth. Thus, it was submitted, the Court would have to determine whether the witness had told the truth before the representation constituted by his or her evidence could be admitted. I do not accept that submission.

29. The duty of a person who enters the witness box is to give evidence. That is, the person must answer the questions put to him or her. That is clear, but if authority is needed it seems to me to flow from ss 12, 26, 29, and 36 of the Evidence Act.

30. Thus, it seems to me that, in its terms, the duty provision applies to evidence given in court proceedings.

31. I was initially troubled by the fact that sub-ss 65(3)-(5) of the Evidence Act make express provision for evidence in court proceedings. The Crown argued that this would lead, on a consideration of the duty provision, to suggest that the duty provision should not be construed as the duty to answer questions as in court proceedings.

32. Having given some thought to these provisions, however, it seems to me that they provide a protection to an accused person and limit what would otherwise be a general admissibility of such evidence under the duty provision.

33. That those provisions are not preceded by a formula such as "despite subsection 65(2)(a)", does not, in my view, necessarily mean that the duty provision does not apply to evidence given in proceedings.

34. None of the other provisions could apply to the evidence of an accused because the accused cannot crossexamine himself or herself. Having thus been excluded from these provisions, the only avenue for such evidence to be admitted is under the duty provision or the interest provision.

35. That such evidence from court proceedings is admissible strengthens my view that the duty provisions is apt to include such evidence.

36. Accordingly, I was satisfied that the evidence was admissible under the duty provisions.

37. If I am wrong, it seems to me that it would also be admissible under the interest provision.

38. While, as the Crown submits, the precise passage is exculpatory, it must be put into the context of the whole of the evidence given by Mr Keir in the earlier proceedings, as is clear from what was said in R v Soma, to which I have referred above (at [9]-[10], [17]). In the evidence Mr Keir clearly made an admission that he went to the Latham premises with Mr Palmer. These representations must amount to a representation against Mr Keir's interest, for it puts him at the scene of the offences and with Mr Palmer, who has pleaded guilty to burglary on the premises.

39. That Mr Keir made some exculpatory remarks at the same time is simply answered by the comment in R v Soma at [31] that "if the prosecution...wished to rely on [the evidence] at all, [it] was bound to take the good with the bad..."

40. I note that the interest provision requires the evidence to be made in circumstances "that make it unlikely that the representation is reliant". This is to be contrasted with s 65(2), both (b) and (c), which respectively requires such circumstances to "make it unlikely that the representation is a fabrication" and to "make it highly probable that the representation is reliable".

41. The lower test in the interest provision does seem to me to be met by the circumstances that the evidence was given in court proceedings under oath; no suggestion to the contrary was made.

42. In any event, given that the admissions made by Mr Keir, namely that he went to the Latham house and he was in the company of Mr Palmer, it seems to me that the evidence would be admissible under s 81 of the Evidence Act, and not excluded by ss 85 and 86.

43. Accordingly, I rule that the evidence was admissible in the Crown case and, as a result, cannot now be put to Mr Keir in cross-examination, it not having been adduced in the Crown case.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for the Judgment of his Honour Justice Refshauge.