R v Lardner (No 4)

The Crown wish to re-call Ms Vale to give evidence in accordance with her second statement which supplements the first. Mr Stewart objects to that course by invoking the exclusionary rule established by s 137 of the Evidence Act 1995 (NSW) (“the Evidence Act”). The matter of potential probative value of the second statement relates in part to certain hearsay recounted by Ms Vale and the Crown have provided me with written submissions arguing that the hearsay representations contained in the statement are admissible as exceptions to the hearsay rule. The exceptions invoked by the Crown are found in ss 65(2)(b) and 66A of the Evidence Act.

It is not necessary for me to further analyse that argument because Mr Stewart made it clear to me in oral argument yesterday that he accepted the accuracy of the Crown's argument in relation to the admissibility of the hearsay. As all trials are adversarial proceedings, I need not, as it were, audit Mr Crown's argument. As I have said the objection is founded upon s 137 of the Evidence Act, that the probative value of the evidence that Ms Vale would give (in accordance with the second statement) if recalled is outweighed by the danger of unfair prejudice to the defendant.

There are, as Mr Crown concedes, a number of hearsay statements contained in paras 4, 5, 7, 9 and 11 of the second statement of Ms Vale. However, I do not propose to summarise those matters because as I understood the argument before me, it principally related to a phone call Ms Vale overheard the Deceased making to a person she identified as the Accused. The phone call was made on the speakerphone function on the phone that he was using. That phone was the phone of Harry Vale and is described by Ms Vale as “an old Nokia”. The phone number is recorded in the statement.

It is enough to say that the content of the phone call overheard by Ms Vale was a demand for the repayment of money that the Deceased asserted the Accused owed him. Initially the demand was left on the voicemail function of a phone that I am asked to infer was used by the Accused, but later in the statement, there is a longer verbatim account of an exchange between Mr Vale and Mr Lardner (at para 9) when a second call was answered by the Accused.

An issue of primary fact in the case relates to the question of whether the Deceased had, on 1 March 2023, a grievance toward the Accused. In particular, the grievance (which has been put in various ways in other material and the opening of Mr Stewart for the Accused) seems to have originated out of the supply of drugs to the Deceased for his personal use by the Accused. Suffice it to say, the Deceased is said to have been concerned about the quality of the drugs supplied, and the dispute so generated was aggravated by the consideration that he was short of cash at the time. It seems that he was short of cash because his father Harry was pressing him for rent money he owed. There is evidence which suggests that he went to an RSL club to try and improve his fortune by playing the poker machines but seems to have blown his money in that process.

The pressure to pay the rent, the fact that he had blown his money gambling, and his belief that the Accused owed him money for poor quality drugs are all said to have contributed to what I will describe as an angry frame of mind which animated him when he attended the premises at 74 M Street on the evening of 1 March 2023.

The principal issue in the trial is one of self‑defence and whether the Crown can negative both that when the Accused stabbed the Deceased he did so because he believed that conduct was necessary to protect or defend himself, and his conduct was reasonable according to community standards in the circumstances as the Accused perceived them to be.

The grievance part of the case is central to the "defence", if I can put it that way. It is not for me to say, but the content of Ms April Vale's second statement seems to advance the grievance argument to some extent even if it is not identical to the way the case has been opened for the Accused by Mr Stewart. To some extent it may dilute that case given that the verbatim account of the second call given by Ms Vale suggests that the Accused had assured the Deceased that he would repay the money or would be in a position to do so later that evening when certain persons returned to Kempsey.

The case was opened by reference to a multifactorial or mosaic-type approach given the number of different matters weighing on the mind of the Accused at least on the case theory, if I can use that expression, advanced by the Accused.

I have gone into this at some length to provide context for the s 137 issue. It is not said that the admission of the evidence would be misused by me as the tribunal of fact on some irrational path of reasoning to a verdict in the case. The danger of unfair prejudice to the defendant relates more to the forensic aspects of running the case given that this matter arose without notice mid-trial, a s 67 notice of short duration was given during the trial, it is hearsay, which is inherently difficult to challenge or contest, and that the Accused has been denied the opportunity of making independent investigations to check the reliability including the veracity of the proposed evidence.

In that latter regard Mr Stewart has argued, given the consideration in particular that this account has only been forthcoming from Ms Vale three years and four months after the fatal events, that I should view it with a great deal of circumspection and that at the point of tender I should regard it as at best of suspect reliability entitled to very little weight. However, for the purpose of the balance that has to be weighed under s 137 I am obliged to take the evidence at its highest on the basis that as the tribunal of fact I may accept it in due course when I am considering it, having regard to its place in the whole of the evidence in the trial.

In that regard I accept the Crown's argument based upon the High Court's decision in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [46]-[47]. Taking that approach, I am persuaded that the evidence in conjunction with other evidence about Mr Vale's state of mind and whether there was a disputation between him and Mr Lardner on the day is entitled to measurable probative value (if I find it to be reliable, accept it, and afford it weight).

The prejudice in relation to the matters raised by Mr Stewart, it seems to me, are inherent in the consideration that the matter is hearsay, but of course evidence covered by exceptions to the hearsay rule is often admitted in criminal trials. The legislation provides for that. To the extent to which there is an inherent risk in relation to hearsay because it cannot be accurately tested, I remind myself that it will be necessary for me sitting as the tribunal of fact to give myself a warning under s 165 of the Evidence Act that the evidence has to be scrutinised with care before it can be accepted. So far as the reliability of Ms Vale herself is concerned, that can be tested in cross-examination.

Mr Stewart also referred to the consideration that it may have been possible for subpoenas to be issued to obtain relevant telephone records. I would certainly give leave for that to happen now. The phone number that the Deceased used is recorded in the statement. Mr Lardner ought to be able to instruct his solicitor and counsel as to the telephone or telephones he was using as of March 2023 and who the telecom provider was. Indeed, in that regard the Crown have offered to make the services of the police available, who have statutory powers to obtain information from telecom providers in criminal investigations in an efficient and timely manner.

It is not said, as I understand it, that the question about disclosure which may engage with the provisions of s 146 of the Criminal Procedure Act 1986 (NSW) is involved in this application and I will put that to one side.

I am of the view that the prejudicial effect of the evidence does not outweigh the probative value. I am making this as an advanced ruling under the provisions of s 192A of the Evidence Act, and in doing so I have borne in mind that s 137 does not involve discretionary considerations but rather an evaluation of the competing factors and the balance between them. That is my ruling in regard to that matter.