R v Krivosic

Rulings on Objections

1. On 18 November 2021, the Court announced its rulings as follows (T228-229): "As indicated yesterday, I propose to announce my rulings on the two evidentiary issues. I will be giving more detailed reasons in due course, but it is appropriate that the parties are aware of the rulings for the purpose of the continuation of the trial. Firstly, with respect to the tender by the Crown of two text messages contained in MFI 6, as discussed in submissions contained in the transcript at pages 40 to 44, the Court will admit those text messages in evidence in the trial, with the text message sent to the accused at 5pm and 28 seconds on 22 July 2018, to be in the amended or sanitised form as contained in MFI 6. In the event that the accused gives evidence and is asked questions concerning this text message, the expectation of the Court would be that the accused could explain why he responded to this text message as an important or significant course which he was to attend, without reference being made to the subject matter of the course. The Court expects that the Crown would not seek to further explore such an explanation or address such an explanation in a manner which may lead to revelation of the subject matter of the course, which is prejudicial to the accused. The text messages in MFI 6 will be admitted and I will give further reasons for that ruling in due course. With respect to the tender by the Crown of the transcript of evidence of the accused at the first trial given on 5 May 2021, as contained in annexure A to MFI 3, with this tender and objection being the subject of submissions contained at pages 22 to 36 of the transcript, the Court will admit the transcript in evidence in this trial. The Court overrules the objection under s 90 Evidence Act 1995 concerning the tender of the transcript. The parties will have an opportunity to be heard as to any objection to additional parts of the transcript, which is annexure A to MFI 3, as well as the procedure to be utilised in placing this transcript before the jury and the explanation to be given to the jury at that time concerning this evidence. They are topics which will be discussed with counsel before that evidence is led in the trial. I will give more detailed reasons for this ruling as well as the earlier ruling in due course. What I have said in summary will be sufficient for present purposes to allow the parties to understand the Court's rulings."
2. This judgment contains the Court's detailed reasons for those rulings.

Crown Case Against the Accused

1. It is the Crown case that, at about 17:11:00 on Sunday, 22 July 2018, the Accused, together with another person, entered the apartment of an acquaintance (SJ) in an apartment block at Warwick Farm. The Accused was holding a Browning .22 calibre pistol. The pistol discharged with Mr Nassif being shot once in the back and wounded fatally. Mr Nassif was present in the apartment together with a number of other persons.
2. The Crown has adduced evidence of a grievance between Mr Nassif and Andre Marques arising from a short sexual relationship in early 2018 between Mr Marques and Taylah Papadellis, the partner of Mr Nassif. Arising from this grievance, Mr Nassif demanded money from Mr Marques and, at one point, detained Mr Marques and subjected him to mistreatment as part of a demand for money from him.
3. On the afternoon of 22 July 2018, Mr Marques and others attended the Warwick Farm apartment at a time when Mr Nassif was present. There is evidence that Mr Nassif physically attacked Mr Marques in the corridor outside the apartment as part of the ongoing grievance between the two men.
4. While this was happening, Alana Delforce made contact with the Accused by SMS messages and a telephone call. Ms Delforce was an acquaintance of the Accused, who was a friend of Mr Marques. As will be seen, in those messages Ms Delforce requested that the Accused come to the apartment. Ms Delforce was asking the Accused to attend the Warwick Farm apartment because of the physical altercation taking place between Mr Nassif and Mr Marques. It is appropriate to set out several of these communications to place in context the Crown tender of the additional SMS messages (Exhibit B, page 13): 1. at 16:49:52-16:50:43 on 22 July 2018, Ms Delforce sent a text message to the Accused saying "Oi wanna help me get all these gronks out of [SJ's]." and "If your not busy."; 2. after a 12 second telephone call at 16:53:53 from Ms Delforce to the Accused (in which Ms Delforce said more about the physical altercation), she sent a SMS message at 16:55:04 saying "Please hurry"; 3. after some other short SMS messages, Ms Delforce sent a SMS message to the Accused at 16:57:27 saying "I don't know I heard yelling and your mate on the ground with gorge [sic] kicking him. I yelled out atop [sic] and they did"; 4. at 16:57:38, Ms Delforce sent a message saying "I don't know what's going on but yeah".
5. As it happens, Mr Marques and his companions left the Warwick Farm apartment block by 17:03:00 after Mr Marques gave $100.00 to a companion to be given to Mr Nassif. The altercation between Mr Nassif and Mr Marques had ended and Mr Marques had left the apartment block.
6. Ms Delforce had also departed the apartment block and driven away in her motor vehicle by 17:04:00.
7. Mr Nassif remained inside the apartment together with SJ, Ms Papadellis and Mark Salama.
8. At 17:11:00, the Accused and his companion entered the apartment block. They were each wearing hoodies and face coverings. The two men were visible on CCTV footage placing latex gloves on their hands as they moved through the building. The Accused had in his clothing a loaded Browning .22 calibre pistol which he had collected from his premises before setting out for the apartment at Warwick Farm.
9. At 17:13:00, the two men entered the lift to travel to SJ's apartment. Between that time and 17:16:00, the Accused entered the apartment and Mr Nassif was shot. The Accused and his companion then caught the lift to the ground floor before exiting the building by 17:17:00.
10. The Accused met with his girlfriend, Nina Gulic, and they left Sydney. Between 22 July and 6 August 2018, the Accused and Ms Gulic travelled by road to a variety of locations including Newcastle, Melbourne, Port Augusta, Coober Pedy and Perth. The Accused was arrested by police in Perth on 6 August 2018.
11. The issues in the first trial (which remain the same in the second trial) were summarised by Harrison J in R v Krivosic [2021] NSWSC 506 at [2]-[3]: "2 Mr Krivosic has responded to the Crown case by saying that the gun he was holding discharged accidentally. He has given evidence that he did not deliberately fire the gun and that he had neither an intention to kill nor to cause serious injury to Mr Nassif. Mr Krivosic has also maintained in the alternative that he went to the apartment in response to a telephone call that he received from Alana Delforce indicating that Mr Krivosic's friend Andre Marques had been assaulted in the foyer of the apartment by several men including Mr Nassif. Mr Krivosic claims that he rushed there in order to prevent or terminate what he understood was the unlawful deprivation of Mr Marques' liberty. The Crown has in those circumstances been actively required to disprove that the killing occurred in circumstances that gave Mr Krivosic a lawful excuse. Manslaughter upon the basis of excessive self-defence has therefore arisen as a live issue for the jury to consider. 3 I indicated, and the parties accepted, that the jury should be directed as well with respect to the alternative verdict of manslaughter upon the basis of the commission by Mr Krivosic of an unlawful and dangerous act. Counsel for Mr Krivosic submitted in addition that I should direct the jury upon the availability of an alternative verdict of manslaughter based upon gross criminal negligence. The Crown opposed that course. I declined to direct the jury on that alternative verdict ..."
12. This narrative is sufficient to provide a context for the present rulings.

Crown Tender of SMS Messages of 22 July 2018

1. The Crown has tendered, without objection, a document identifying SMS messages and phone calls made between the Accused and other persons between 16:49:00 and 17:25:00 on 22 July 2018 (Exhibit B, pages 13, 22, 24, 27 and 30).
2. The Crown seeks to tender as well (MFI6): 1. an SMS message at 17:00:28 on 22 July 2018 to the Accused which, if allowed, would state (in redacted form) "Hi Marko, this is a reminder to attend the course starting on Monday 23.07.2018 from 6? 8 pm. It is held at Liverpool"; 2. an SMS message from the Accused in response at 17:00:35 on 22 July 2018 stating "K" (said to be short for "OK").
3. The second SMS message (the response from the Accused) formed part of Exhibit O at the first trial of the Accused before Harrison J and a jury, having been admitted without objection.
4. The first SMS message was not tendered by the Crown at that trial. Accordingly, no ruling was given by Harrison J, so that s.130A Criminal Procedure Act 1986 has no application to this tender.
5. The 17:00:28 SMS message, in its complete form, reveals that the Accused was being informed of the expectation that he attend a course as a requirement of his parole. The actual text message states "Hi Marko, this is a reminder to attend the EQUIPS Foundation course starting on Monday 23.07.2018 from 6? 8 pm. It is held at Liverpool Community Corrections and is a requirement of parole".
6. Because of the prejudicial nature of the actual message, the Crown proposes that a redacted version of the message be admitted in the form identified earlier (see 21 above). Submissions
7. The Crown submitted that the two text messages now tendered form part of a series of communications which bear upon the account of the Accused as to his state of mind in the late afternoon of 22 July 2018 when he was making his way to SJ's apartment at Warwick Farm in response to communications from Ms Delforce.
8. The Crown submitted that these communications bear upon the improbability of the Accused's account as given in evidence at the first trial. The Accused asserted that he was scared and panicked when he received Ms Delforce's messages. In particular, the Accused maintained that he had not received the SMS message from Ms Delforce sent at 16:57:27 in which she "yelled out atop [stop] and they did" so that he did not know that the altercation had ceased.
9. The Crown argued that the Accused had the presence of mind to respond to the message about the course to take place the next day and that this was quite inconsistent with the Accused's account that he was in a scared and panicky state.
10. The Crown submitted that the prejudicial content of the SMS message could be overcome by the proposed redaction which comprised a neutral form of message. It was submitted that the material is relevant and probative and should be allowed in the form proposed in MFI6.
11. Mr Steel, counsel for the Accused, objected to the tender and submitted that it is prejudicial in content. He acknowledged that the proposed redaction would reduce any prejudicial effect. It was submitted, nevertheless, that the message should not be admitted as it had no real probative value in the context of this case. He submitted as well that there would be prejudice to the Accused, given that he would not be able to explain in evidence why he responded to the SMS message promptly, as it related to a condition of his parole, with such a revelation being clearly prejudicial to the Accused. Decision
12. The communications made to the Accused and from the Accused in the period between 16:49:00 and 17:20:00 on 22 July 2018 are clearly relevant to issues in the trial so as to satisfy the requirement in ss.55 and 56 Evidence Act 1995 (NSW). The fact that the Accused appears to have absorbed a text message sent to him at 17:00:28 on that day, and responded to it promptly, bears upon the jury's consideration of the state of mind of the Accused at that time and the question whether he was scared and in a panicky state or was thinking sufficiently clearly to respond to the message concerning attendance at a course.
13. The response from the Accused (at 21 above) was admitted at the first trial, but is of reduced relevance when viewed in isolation without evidence of the message to which the Accused was responding.
14. I am satisfied that the SMS messages are relevant to facts in issue in the trial so that they are prima facie admissible. They are capable of bearing directly upon the state of mind of the Accused at about 17:00:00 on 22 July 2018, an issue of importance in the trial.
15. To the extent that the content of the message to the Accused would be prejudicial to him, I am satisfied that the redacted version proposed by the Crown overcomes the potential prejudice to him. The proposed redacted version does not materially alter or distort the terms of the message sent to the Accused. Rather, it removes the prejudicial features.
16. I have considered the risk of prejudice to the Accused in the event that he gives evidence and is asked about this exchange of messages. In my view, the risk of prejudice may be guarded against by the Accused describing the SMS message as being "significant" or " important" on the basis that the Crown would not seek to go beyond this in cross-examination or closing address. In this way, the risk of prejudice is effectively removed, whilst the probative value of this evidence remains available to the Crown.
17. In these circumstances, I am satisfied that the admission of these SMS messages will not operate unfairly to the Accused so that they ought not be excluded under s.137 Evidence Act 1995 (NSW).
18. I propose to admit the SMS messages contained in MFI6.

Crown Tender of Evidence of Accused at the First Trial

1. The Accused gave evidence at the first trial on 5 May 2021 (T445-516). The Crown seeks to tender the transcript of the evidence of the Accused subject to certain redactions made to remove irrelevant material (Annexure A to MFI3). Submissions
2. The Crown submitted that the evidence of the Accused is relevant in that it contains admissions by the Accused falling within the definition of "admission" contained in the Dictionary to the Evidence Act 1995 (NSW). It was submitted that the admissions made by the Accused are relevant so as to satisfy the requirements of ss.55 and 56 Evidence Act 1995 (NSW).
3. The Crown relied upon Stewart v The King (1921) 29 CLR 234 at 240-241; [1921] HCA 17, Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [86], [88], and R v Mills (1986) VR 617 at 619 in support of the tender of the evidence of the Accused at the first trial.
4. Accepting the Crown's obligation of fairness in the conduct of the trial, and in compliance with Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23 at [22], [27], [36]-[38], the Crown proposed to tender the entirety of the evidence of the Accused in evidence-in-chief, cross-examination and re-examination, subject to deletions made of irrelevant material as a matter of fairness.
5. The Crown submitted that the evidence of the Accused at the first trial is admissible, and there is no appropriate basis for excluding it on discretionary grounds in the context of this trial.
6. The Court was taken to parts of the evidence of the Accused at the first trial to illustrate the way in which the evidence was said to contain admissions (T25-31). It was submitted that the structure of the evidence of the Accused in cross-examination, by reference to particular questions and answers, fortified the capacity of the evidence to operate as admissions against interest made by the Accused. If the evidence was not before the jury in that form in this trial by way of tender, the Crown submitted that the effect of the admissions would not be before the jury in this trial.
7. If the evidence was not admitted and the Crown was confined to cross-examination of the Accused in this trial by reference to what he said at the earlier trial, this would not allow the present jury to hear the answers of the Accused to many questions asked at the first trial in the form and order in which they were given.
8. The Crown submitted that there would be prejudice to the Crown if the tender of the admissions made by the Accused at the first trial was not allowed. If that occurred, the Accused would have an opportunity to give his evidence in this trial in a manner which suited him and in an effort to overcome what may be perceived by him to be damaging aspects of his first trial evidence.
9. It was submitted, in effect, that the Crown would be prejudiced and the Accused would be advantaged in this way, and that this prejudice to the Crown would not be overcome satisfactorily by the Crown being permitted to cross-examine the Accused in this trial by reference to the evidence which he gave in the first trial.
10. The Crown submitted that there was no basis to exclude the evidence under s.90 Evidence Act 1995 (NSW).
11. Mr Steel acknowledged that the evidence of the Accused at the first trial was voluntary and contained admissions, but he submitted that it ought be excluded pursuant to the s.90 discretion.
12. Reliance was placed upon R v Sonnet (No. 2) (2011) 220 A Crim R 199; [2011] VSC 551 and R v Eastman (No. 15) [2017] ACTSC 143. It was submitted that the tender of the evidence of the Accused from the first trial would give the Crown a significant forensic advantage in the present trial and would constitute a significant forensic disadvantage to the Accused. It was submitted that this would enable the Crown to present the Accused's case for the jury to assess before the Accused had an opportunity to do so himself.
13. Further, it was submitted that it would only be the transcript of the evidence being tendered as no video or audio recording of the evidence of the Accused was made.
14. Because of these considerations, it was submitted that an appropriate foundation existed to refuse to admit the evidence pursuant to the s.90 discretion.
15. Counsel for the Accused informed the Court that it was proposed to call the Accused to give evidence in the present trial. If the Accused changed his instructions to that effect, it was indicated that the Crown would be informed before the close of the Crown case, so that the Crown could then tender the evidence of the Accused from the first trial, with no objection being taken to that tender in the event that it occurred.
16. However, Mr Steel submitted that the Accused would otherwise be subjected to the forensic disadvantage of having his evidence from the first trial read to the jury in the Crown case before the defence case commenced in the present trial. If the evidence of the Accused differed from what he said in evidence at the first trial, it was submitted that the Crown could cross-examine the Accused in the present trial, so that the Crown would not be prejudiced if this approach was adopted.
17. Mr Steel submitted that the Crown should not be permitted to gain a forensic advantage because a previous trial was inconclusive through no fault of either party. He argued that maintenance of the status quo and the fairness to both parties necessary in an adversarial system called for the exercise of discretion under s.90 to exclude the material in the Crown case. Decision
18. Section 55(1) Evidence Act 1995 (NSW) provides that relevant evidence is evidence that, if it were accepted, "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding".
19. The Dictionary to the Evidence Act 1995 (NSW) defines an "admission" as a previous representation that is: 1. made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and 2. adverse to the person's interest in the outcome of the proceedings.
20. The definitions of "representation" and "previous representation" in the Dictionary to the Evidence Act 1995 (NSW) do not operate against the tender of "admissions" said to have been made by an accused person at an earlier criminal trial for the same charge.
21. The definition of "admission" is wide enough to include any form of representation (including both inculpatory and exculpatory statements) so long as it is "adverse to the [maker's] interest in the outcome of the proceedings". That expression is sufficiently wide to encompass both inculpatory and exculpatory statements that may turn out to be harmful to the Accused: R v Horton (1998) 45 NSWLR 426 at 434, 437-438; Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [21].
22. By s.81(1) Evidence Act 1995 (NSW), the hearsay rule and the opinion rule do not apply to evidence of an admission. By s.81(2), this exception is extended to evidence of a previous representation that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and to which it is reasonably necessary to refer in order to understand the admission. Where there are mixed statements of inculpatory and exculpatory material, it is a matter for the jury to consider what use is to be made of the mixed statements: Nguyen v The Queen at [22].
23. Applying these principles, I accept the Crown submission that an answer to a question (and the question to which the answer is given) is relevant if it is an admission or is capable of being regarded as an admission of guilt or of a fact relevant to the proof of guilt. Any representation that is adduced by the prosecution, and is capable of rationally affecting the assessment of the probability of the existence of facts asserted by a prosecution witness in relation to an alleged offence, would constitute an admission: R v JGW [1999] NSWCCA 116 at [39]-[41].
24. It is well established that, absent a particular basis for exclusion, the transcript of evidence (or, when they existed, a dock statement) of an accused person at an earlier trial may be tendered by the Crown in a subsequent trial.
25. In Stewart v The King, the Court (Knox CJ, Gavan Duffy, Rich and Starke JJ) said at 240-241: "We do not doubt that the voluntary statements of a prisoner on a trial for an offence, which has been inconclusive, may be used on a second trial for the same offence. The fact that the statements were made under cross-examination does not destroy their voluntary character."
26. This statement has been applied frequently by Courts in different Australian jurisdictions: R v Lang (1965) NSWR 1313 at 1319; R v Mills at 619; R v Kostaras (No. 2) (2003) 86 SASR 541; [2003] SASC 323 at [100]; R v Eastman (No. 15) at [11]; R v Sparos [2018] NSWSC 740 at [10].
27. In R v Mills, Southwell J said at 619-620: "I did not apprehend that Mr. Dane specifically based any submission on the question of the exercise of discretion, but, of course, in ruling on admissibility, it must be borne steadily in mind that there is always a discretion to reject evidence if it is thought that its admission would act unfairly. In that regard, I would refer to R v McGregor (1967) 51 Cr App R 338, at p. 340, where the Lord Chief Justice speaking for the Court of Criminal Appeal said, where it was considering a question similar to that now arising, but was there dealing with evidence given on oath by the prisoner at the first trial where the jury disagreed and where it was sought to tender parts of that evidence at the second trial: 'in principle, as it seems to this court, there is no ground whatever in such a case why the Prosecution should not give that evidence. Secondly, it is said that it was unfair. As the court understands it, Mr. Dovener says it was unfair because it no doubt did cut the ground from under his feet and prevented him from making a statement of no case to answer. It is also said to be unfair in that really if this appellant stood any chance, he would have to give evidence. In fact, he gave no evidence at all. Unfair in that sense it may have been, but unfair in the general circumstances of the administration of justice it was certainly not.' The term 'unfair and prejudicial' in these discussions, as it seems to me, is often misused as if it means some evidence which tends to lessen the prisoner's chances of escaping conviction. I do not believe that it is unfair or prejudicial, giving those words the meaning I think they should be given in such a discussion, for the Crown to lead evidence of the previous statement. That statement contains, amongst other things, what the jury might regard as an admission that it was her act which caused the fatal wound to the neck of the deceased. That is an admission of importance, because in other statements it is alleged that she had denied any involvement in that act and had indeed said she was not even present when the wound was inflicted. In those circumstances, I am of the opinion that there is no reason shown to reject what I regard as admissible evidence."
28. In Cornwell v The Queen, Gleeson CJ, Gummow, Heydon and Crennan JJ said at [88]: "A retrial returns the parties to the position they were in at the start of the first trial. The parties are at liberty to re-tender the evidence already tendered. They are also at liberty to tender other evidence. Among that other evidence which traditionally the parties have been at liberty to tender is evidence of admissions made at the first trial."
29. In R v Rich (Ruling No. 26) [2009] VSC 159, Lasry J said at [22]: "The Crown also relied on R v Mills, where Southwell J ruled that on a re-trial of the accused the Crown could lead the unsworn statement of the accused as part of the Crown case and gained some comfort from the observations of Lord Edmund-Davies in Wong Kam-Ming. However, it seems to me the situation is quite different. In such a circumstance an accused makes a choice to give evidence (or make an unsworn statement as in that case) and must surely realise that once in the witness box the evidence given can be used for or against the accused without qualification. It is a logical extension of that position that such evidence given after the making of such a choice would be available to the Crown in a re-trial."
30. Evidence given by an accused person at an earlier trial has, on occasions, not been admitted as evidence in the Crown case. In R v Sparos, Harrison J concluded that the evidence from the earlier trial did not contain admissions, as there were not answers which tended to implicate the accused person. In R v Rich (Ruling No. 26), Lasry J determined that the principle in R v Mills did not necessarily extend to evidence given by the accused person on a voir dire in the earlier trial.
31. In R v Sonnet (No. 2), Lasry J refused to admit the evidence of the accused person in the earlier trial. The verdict at that trial had been quashed on appeal upon the basis that a miscarriage of justice had occurred. Lasry J observed (at [2]) that the prosecutor sought "to lead a record of the evidence given by the accused at his first trial as part of the prosecution case on this trial" and that "such an issue would ordinarily be straightforward".
32. However, in the circumstances of that case, Lasry J excluded the evidence under s.90 Evidence Act 2008 (Vic) upon the basis that it would be unfair to the accused person, in the conduct of the trial, "for the Crown to gain a forensic advantage as a result of a trial which the Court has ruled was productive of a miscarriage of justice": R v Sonnet (No. 2) at [38].
33. This reasoning was followed by Kellam AJ in R v Eastman (No. 15) (at [57]-[58]) where a retrial was to take place after an appeal where the conviction was quashed following a finding of miscarriage of justice, and the evidence was excluded under s.90 Evidence Act 2011 (ACT).
34. Mr Steel submitted that the transcript of evidence of the Accused at the earlier trial should be excluded under s.90 Evidence Act 1995 (NSW).
35. Section 90 provides: "90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if - (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
36. It has been said that the language of s.90 expresses the concept of unfairness in the widest possible form: Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [50], [177].
37. Section 90 confers a discretion to exclude evidence if the requirements of the provision are made out: R v Ye Zhang [2000] NSWSC 1099 at [66]. The burden of demonstrating that it would be unfair to use the evidence rests on the Accused: Em v The Queen at [63].
38. It may be taken that the evidence of the Accused was given voluntarily at his earlier trial and after receiving legal advice as to his options.
39. In R v Sparos, Harrison J rejected the Crown tender of the evidence of the accused person at an earlier trial upon the basis that it did not fall within the definition of "admission" as it was not adverse to the interests of the person. However, his Honour said (at [17]) concerning an objection under s.90 to the tender of evidence: "In my opinion, this provision has no present relevance. The evidence in question said by the Crown to contain the so-called admissions was adduced in the course of evidence voluntarily given by Mr Sparos. There can in those circumstances be no suggestion of any unfairness to him."
40. It is common ground on this application that the evidence of the Accused at the first trial contained answers which were capable of being treated as admissions within the terms of the Evidence Act 1995 (NSW).
41. During the course of submissions, the Crown took the Court to many answers of the Accused which involved responses made to a series of questions posed in cross-examination. These answers were capable of constituting admissions in that they were adverse to the interest of the Accused in the outcome of the proceedings against him.
42. I am satisfied that many answers of the Accused in evidence at the first trial, although intended to be exculpatory, had a capacity to inculpate the Accused, both in the content of the answers and the way in which they emerged progressively in his cross-examination (see [58] above). This aspect supports the tender of the entirety of the Accused's evidence in the first trial subject to the omission of particular parts which are irrelevant or, for some particular reason, unfair.
43. The Court should keep in mind that the Accused gave evidence at the first trial in circumstances where he was represented by highly experienced counsel. Although there is no video and/or audio recording of the evidence of the Accused which can be tendered, there is a transcript of the evidence which is accepted as being accurate in its contents.
44. The circumstances of this case are distinguishable from those in R v Sonnet (No. 2) and R v Eastman (No. 15), where exclusion of the earlier evidence resulted by application of the equivalent of s.90 in the Victorian and ACT statutes. Critical to the rulings in those cases was the finding by the trial Judge that it would be unfair to admit the evidence in the earlier trial where the conviction in that trial had been set aside as a consequence of a finding on appeal that a miscarriage of justice had occurred at the first trial.
45. In the present case, however, a second trial is taking place because the jury was not able to agree upon a verdict at the first trial.
46. It is necessary to keep in mind that s.90 permits a court to refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if the evidence is adduced by the prosecution and, having regard to the circumstances in which the admission was made, it would be unfair to the accused person to use the evidence.
47. The circumstances in which the admissions were made here involved the Accused giving evidence voluntarily at a trial where a contemporaneous record was made of his evidence. That record was accepted by the parties as being accurate. It is true that there is no video or audio recording of the evidence being given. However, I do not think that aspect gives rise to any significant argument that unfairness would flow to the Accused if the transcript is tendered by the Crown in this trial.
48. This is not a case where s.90 ought be applied to exclude evidence because of circumstances surrounding the making of the admissions.
49. I have kept in mind that a criminal trial is conducted as adversarial litigation where an accusatorial process is involved in which the prosecutor bears the onus of providing the elements of the crime charged: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138].
50. The tender by the Crown of the evidence of the Accused at the first trial does assist the Crown in the context of the present trial. This is so because admissions contained in the transcript are probative of matters which bear directly upon the facts in issue in the trial. The Accused elected to give evidence in the earlier trial, which itself was conducted as adversarial litigation involving an accusatorial process.
51. It remains open to the Accused to give evidence in the present trial if he wishes to do so. The admission of his evidence at the earlier trial does not operate to preclude or restrict the capacity of the Accused to give evidence before the jury in this trial.
52. It is true that the Accused may be limited in his capacity to depart from his evidence at the first trial if it is tendered by the Crown in this trial. However, that does not give rise to relevant unfairness.
53. Although determining to exclude the evidence from the earlier trial in R v Eastman (No. 15), Kellam AJ (at [59]-[60]) adverted to the potential for unfairness to the Crown if the accused person was in a position to alter his case at the new trial: "[59] However, notwithstanding the above ruling, it is appropriate to say that I am conscious of, and to a degree share, the concerns expressed by the prosecution that if the accused's evidence from the first trial is not admitted, the defence could run a case completely inconsistent with previous admissions made by the accused. As the prosecution submits, this would be an unfair tactical advantage and would be misleading to the jury. Section 90(b) of the Evidence Act requires consideration by the Court of the issue of unfairness to the accused. It also requires consideration of only 'the circumstances in which the admission was made' and not the whole circumstances of the consequences of the exclusion of the admission. [60] The concerns of the prosecution as to possible unfairness flowing from my ruling are not, in my view, without substance."
54. Whilst noting the comments of Kellam AJ in this respect, the critical question here is whether the Accused has demonstrated unfairness so as to call for the exercise of the s.90 discretion to exclude the evidence.
55. There will be no impediment to the Accused giving evidence in the present trial if he wishes to do so. That will occur only after the Crown has closed its case, which itself will include a reading to the jury of the transcript of his evidence given at the first trial.
56. I am not persuaded that the admission of the evidence of the Accused in the first trial would be unfair to him having regard to the circumstances in which the admissions were made at the first trial. Accordingly, I am not satisfied that the evidence ought be excluded under s.90 Evidence Act 1995 (NSW).
57. I agree with the Crown approach that, it is appropriate in accordance with the principles in Nguyen v The Queen, to tender the entire transcript of the evidence of the Accused at the first trial, which will include both inculpatory and exculpatory content (see [41] above).
58. Subject to any further submissions concerning particular parts of the transcript, the evidence of the Accused given at the first trial on 5 May 2021 will be admitted and read to the jury in the Crown case at the present trial.

Conclusion

1. It is for these reasons that I made the rulings on 18 November 2021 set out earlier in this judgment (at [6]).

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