R. v. Michael Anthony Ryan (No. 2) [2012] NSWSC 1034

Supreme Court of NSW|2012-08-31|Before: Campbell J

Introduction 1The accused is standing trial on an indictment which contains two counts. The first count relates to the alleged manslaughter of Connan McLeod by an unlawful and dangerous act. 2The Crown has called Mitchell Moody, who is said to be an eyewitness the unlawful and dangerous act. That act allegedly occurred in a carpark of Fitzgerald Street, Windsor in the early hours of Sunday 1st of May 2011. The carpark is to the east of George Street, Windsor, known as Windsor Mall. The Fitzroy Hotel is on the western side of Windsor Mall. Mr. Moody is an acquaintance of the accused. The witness was ejected from the Windsor Hotel because of his intoxication at around 1 a.m. Soon thereafter he came into the company of the accused's group of friends who had gathered in Windsor Mall, in circumstances, which for present purposes, it is unnecessary to relate. On the evidence there can be no question that at that time Mr. Moody was badly affected by drink.

Mr Moody's evidence 3Mr. Moody gave evidence (408T.25 - 45) that the accused hit the deceased in the face outside the hotel in Windsor Mall. This evidence is inconsistent with the Crown's allegations encapsulated in the second count on the indictment. The allegation is that the man hit outside the pub is Mitchell Poile. Again, for present purposes, nothing turns on this. 4Mr. Moody gave evidence about the incident in the carpark from 409.20T - 411.5T. At 410T.20 - 411.5T the following appears: Q. What did you see happen between the man coming from Fitzgerald Street and Michael Ryan? A. They started to fight. Q. When you say they started to fight who hit who? WATERSTREET: Assuming that your Honour. CROWN PROSECUTOR: I will do it another way your Honour. HIS HONOUR: Thank you. CROWN PROSECUTOR Q. What did you see happen? A. He came towards Michael and Michael had come towards him and they put their fists up like they were going to fight. Q. Did you see either man throw a punch? A. I think Michael threw a jab or Q. Did you see the other man throw a punch? A. No. Q. You think you saw Michael throw a jab? A. Yes. Q. Did you see the jab connect with the other man? A. I can't remember but HIS HONOUR Q. Don't guess. A. I am unsure 5In an electronically recorded interview with the police, late in the evening of the 1st of May 2011, a written transcript of which is Exhibit VD5; he said: Q.386OK. What happens? A.Michael hit him once and he started walkin', the other guy started walkin' backwards. ..... Q.388What do you see Michael Ryan actually do? A.Hit him with his .... I don't even know if it was his left or right. Q.389OK. Was it a punch or was it a ... A.Yeah, he punched him. Q.394All right. Does it connect with the fellow. A.Yeah. Q.395OK. Where does it hit him? A.In the face. Q.396All right. What do you, what do you see then? A.The other guy started walkin' backwards and it sort of moved up .... jumpin' around

Voir dire arising from Mr Moody's evidence 6Initially in the absence of the jury, the Crown sought leave under s.32 Evidence Act 1995 (NSW) ("Evidence Act") for the witness to revive his memory by reference to the record of interview. On the voir dire at 418.4 - 30T the following evidence was given: Q. What did you see happen in relation to the other man? A. Just still standing there trying to fight with his hand up. Q. What happened next? A. They moved back further towards Fitzgerald Street. Q. What did you see, if anything, Mr Ryan do? A. Look like throwing another punch. Q. What happened after that? A. They had gone back further. Q. Yes, what did you see then? A. The man fall and hit his head. 7Although at one point Mr. Moody said he believed the jab thrown by the accused struck the other man, when pressed about whether he actually saw that occur his evidence was very unclear: I am not too sure of what I remember. The more I read that statement, the more I can't remember This was a reference to Ex. VD5. 8The Crown then withdrew its application under s.32 and instead made an application for leave to cross examine under s.38 (419.5 - .25T). HIS HONOUR: I must say that on that evidence it is not clear to me that he has no recollection at this time. It is not clear to me that he had an actual recollection at the time he made the record of interview for the reasons he said. Now as I say, I understand this can be a multilayered process or explanation why we're doing this, but I think, may I say with great respect, we need to establish that clearly from him, if we're doing a s32 application and not a s38. CROWN PROSECUTOR: I think I will move to s38, your Honour. HIS HONOUR: Yes, all right. We should know what application we're entertaining, really. WATERSTREET: We should then get the full account, perhaps uninterrupted. I understand there is a school of thought before the Evidence Act, do it bit by bit, on refreshed memory. HIS HONOUR: We're old enough, gentlemen, to talk about the new Evidence Act. It has been in a long time. Can we make it clear, Mr Crown, are you withdrawing your application for s32 and moving on to s38? CROWN PROSECUTOR: S38, your Honour.

Section 38 Evidence Act 9S.38(1) provides: A party who called a witness may, with the leave of the Court, question of the witness as though the party was cross-examining the witness, about: (a)Evidence given by the witness that is unfavourable to the parties; or .... (c)Whether the witness has, at any time, made a prior inconsistent statement. s..38(6) provides: Without limiting the matters that the Court may take into account in determining whether to give leave ..... under this Section, it is to take into account: (a)Whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b)The matters on which, and the extent to which, the witness has been, or is likely to be questioned, by another party. 10In deciding any question of leave arising under the Evidence Act, s.192 is engaged. By s.192(1) I am entitled to impose terms and s.192(2) sets out matters which are to be taken into account in the exercise of the discretion. S.192(2) is in the following terms: (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

Resolution of s 38 issue 11In my judgment, the evidence given before the jury at 410.45 - 411.5T was not favourable, and indeed unhelpful to the Crown case. The Crown brief contained a record of Mr. Moody's interview with the police. On the basis of it, the Crown prosecutor had a legitimate expectation that Mr. Moody would give an eyewitness account of Mr. Ryan striking the deceased. That evidence would have assisted the prosecution case. On the evidence given, it did not. I appreciate, from the commentary in Uniform Evidence Law 10th Edition 2012 at page 128 - 131 [1.2.3260] there remains a great deal of debate about the meaning of unfavourable. However, the evidence given before the Jury by Mr. Moody was not simply neutral: Klewer v. Walton [2003] NSWCA 308 at [20]; and also Hadgkiss v. CFMEU [2006] FCA 941 at 9 per Graham J. On the other hand, it did not assist the prosecution; indeed it was unhelpful to it: Adam v. The Queen (2001) 207 CLR 96 at [44] per Gaudron J: at [27] per the plurality; R. v. Le [2001] NSWSC 174 at 15 per McClellan J (as the Chief Judge then was). 12It is unnecessary for me to settle this debate as to the meaning of unfavourable to the party now as clearly the transcript of the record of interview constitutes a prior inconsistent statement in as much as Mr. Moody gives a definite account of witnessing the accused strike the deceased in the carpark. The representations contained in the prior inconsistent statement are clearly relevant in the sense that if ... accepted, [they] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s.55(1) Evidence Act) i.e. whether the accused assaulted the deceased, and also whether Mr Moody's evidence should be believed. Whether the evidence is reliable in the sense that the jury will or may accept it, I am neither required nor permitted to consider at this juncture: Adam at 105 [22] per the plurality. From the cross-examination by Mr. Waterstreet of Counsel on the voir dire there are likely to be factors to which the defence may point calling the reliability of the account given in the record of interview into question. 13In considering the matters I am required to take into account, I make the following analysis: (a)In the circumstances of this case, the prosecution has given notice of it's intention to seek leave at the earliest opportunity i.e. when the unfavourable evidence fell from the witness; (b)If I do not allow cross-examination on the record of interview, it is unlikely that the defence will do so. It will not be in the interests of the defence to elicit from Mr. Moody a direct eyewitness account of the accused striking the deceased; (c)An hour or so has been taken up with the voir dire on this point.However permitting the prosecution to cross-examine on the prior inconsistent statement will not affect in any material way the length of the trial, in my judgment; (d)In my judgment, permitting cross-examination will not affect the fairness of the trial. The accused knew what the prosecution expected Mr. Moody to say by reason of prior service of the brief. Defence counsel is forearmed with appropriate matters upon which to base his cross-examination. The defence is well placed to test the evidence. In any event, a fair trial is one which is fair to both the Crown and the Defence. In my judgment, there is no undue prejudice to the Defence in granting leave. The refusal of leave will deprive the prosecution of evidence, which if accepted, has probative significance. (e)It follows from what I have just said that the evidence likely to be elicited by the proposed cross-examination is important in the sense that it has probative significance. It is an eyewitness account going to the heart of the charge. (f)The proceedings are, of course, a criminal trial for a serious offence. I have weighed carefully this consideration. A review of the cases demonstrates that prosecutors are frequently given leave under s.38. This consideration, in my view, adds to strength of the prosecution argument. If the representations contained in the record of interview are elicited in evidence before the jury, it will become an eyewitness account of the events in issue given on the same day. (g)Case management considerations such as those referred to in s.192(2)(e) do not arise in the context of this application during the course of a criminal trial. 14It was for these reasons that I made the following ruling on 30th August 2012 (464T.30 - .45): My ruling, therefore is; under section 38 of the Evidence Act I give leave to the Crown to crossexamine Mr Moody on answers given to questions 363 to 438, recorded in the record of interview carried out on 1 May, 2011, with the exception of question and answer 419. I direct that Mr Moody may be crossexamined on the basis of the audio/visual recording made contemporaneously with that interview, but that the recording, or segments of it shown to the jury, include question and answer 37, appearing on pages 5 to 7 of the transcript. 15In formulating my ruling I have also had regard to the operation and effect of ss.135 and 137 of the Evidence Act. I have limited the scope of the permissible cross-examination to exclude material contained in the record of interview to the extent to which its probative value is outweighed by the danger of unfair prejudice to the accused. However, in permitting a degree of cross-examination under s.38 I have also borne in mind it's proper scope as described by Heydon JA in R. v. Le (2002) 54 NSWLR 474 at 486[67] in the following terms: In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness's credibility on the s 38(1) subjects. 16At the same time I gave an indication that I would provide a direction to the jury in accordance with s.165 of the Evidence Act subject to hearing counsel further on the terms of it (464.T.40 - .45). In the events that have now occurred, I have reconsidered the appropriateness of providing a direction at this time.

Non-disclosure of previous interview 17During the course of the argument about whether the Crown should be granted leave under s.38, Mr. Waterstreet referred to question and answer 18 of Exhibit VD5. From questions and answer 15 to 20, Mr. Waterstreet correctly, with respect, deduced that the record of interview was not the only exchange between police and Mr. Moody on the 1st of May 2011. Mr. Waterstreet correctly submitted that it was apparent that Det. Cosgrove, one of the interviewers, had spoken to Mr. Moody about the events in the carpark, following which a Det. Sgt. Atkins spoke to him in the presence of Det. Cosgrove when further information was elicited before the electronically recorded interview was conducted. At 427T.21 Mr. Waterstreet said: We haven't got what has been said in the initial conversation with Det. Sgt. Atkins and Det. Cosgrove referred to in the earlier part. ... HIS HONOUR: Alright, are you calling for any record made of the conversations referred to there? WATERSTREET: Yes, your Honour. HIS HONOUR: Can inquiries be made about that Crown Prosecutor. CROWN PROSECUTOR: They can your Honour That call, therefore, was taken on notice. 18Mr. Waterstreet examined Mr. Moody on the voir dire and he gave the following evidence: Q. Do you think what you told the police at the time was accurate or not? A. Well I told them as much I knew pretty much and what I thought I had seen. Q. But at the time what you thought you had seen you were well affected by alcohol? A. Yes. Q. And at the time you told the police you were still affected by alcohol? A. Quite hung over. Q. And not feeling well? A. No. ... Q. You were told, were you, by police that you were a suspect in the assault were you? A. Well I was asked questions if I was involved. Q. What did you say? A. No. ..... HIS HONOUR Q. Do you understand you may have been a suspect at that time? A. No. MR. WATERSTREET Q. You were saying that you had a patchy memory because of alcohol? A. Yes. 19At the conclusion of the proceedings on 29th August 2012, I indicated that I would grant the Crown leave under s.38 (439T - 440.10). 20Upon resumption of the trial on 30th August 2012, Mr. Waterstreet again referred to the statements or notes of the earlier conversation (441T.45). At 443T.25 - .30 Counsel said: Now your Honour, that previous material, it would be extraordinary that that conversation about what is described earlier in the record of interview as a serious assault is not in any way recorded, it was not noted, and I have reason to believe that it may have been destroyed deliberately. 21Further argument ensued about the scope of the proposed cross-examination by the Crown Prosecutor and whether it could be achieved by showing selected parts of the audio-visual recording. In the end I accepted that the audio visual recording was the best evidence of any prior inconsistent statement, subject to editing to incorporate some particular concerns of the defence. 22In answer to Mr. Waterstreet's previous call, the Crown Prosecutor said at 450T.20 - .30: HIS HONOUR: What about the issue in relation to the production of these other matters? CROWN PROSECUTOR: My instructing solicitor has spoken to Detectives Cosgrove and Lowe and Detective Ornatowski has spoken to Detective Atkins and no records exist and it is the belief of each of those three that no notes were made at that time. I can't take it any further. HIS HONOUR: In answer to the call you say it is not produced? CROWN PROSECUTOR: Not produced, yes your Honour. .... 23I gave Mr. Waterstreet leave to further cross-examine Mr. Moody on the voir dire in relation to the production issue. He gave the following evidence at 457T.20 - .45: Q. And you went back to Windsor police station with Detectives Lowe and Cosgrove to the Windsor police station? A. Yes. Q. During the course of the record of interview, it appears that just tell us if you disagree - the (sic) gave a version of events that was not accurate initially to police? A. Yes. Q. And you say that that version, I think you said yesterday, was given at Windsor police station? A. Yes. Q. Did the police tell you, after you gave that version did the police appear to be taking a record of it by notes or in any other way? A. I think it was printed on paper. Q. So it was typed out by one of the officers? A. Yes. Q. As you were giving that version? A. Yes. And at 458T.5 to .33: Q. Did the police have a discussion with you about the content of that statement? A. Yes. Q. What did they say? A. They knew I was not telling the whole truth. Q. Did they say anything about trouble or A. Yeah, they said some law, or something like that, and told me I could be looking at gaol time if I stayed with that story. Q. And that was the story that had been recorded in your statement that they had typed for you? A. Yeah. Q. What did you say when they told you about going to gaol? A. Well, they asked if I wanted to change my story. Q. What did you say? A. "Yes." Q. What happened to the typed version? A. I'm not too sure. They said they were going to dispose of it. Q. They said they were going to dispose of it? A. Yes. Q. Did you sign it? A. I think I did. 24Following this evidence, Mr. Waterstreet applied for, what I referred to as a formal response to [the] call. I ruled that he was entitled to have the call answered on oath. 25Counsel took the opportunity to properly particularise the categories of document for which he was calling at 468T.10 to .20: WATERSTREET: ..... Notice to Produce: 1. All and any electronic or other records of interview, statement, transaction, receipt, custody procedure, photograph, forensic procedure, between or involving any police officer with Mitchell Moody on 1 May 2011 at the address of Mitchell Moody at xx xxxxx xxxxxx Windsor, on route to Windsor Police Station, or at Windsor Police Station, or thereafter on that date. 2. This Notice includes the above records created or made by the following officers: Cosgrove, Lowe, Atkins, officers attending at Moody's house, officers concerned in the custody management at Windsor Police Station, and officers on duty at Windsor Police Station on 1 May 2011. 26That afternoon the solicitor for public prosecutions passed on the substance of that Notice to the officer in charge, Det. Ornatowski, and to Det. Sgt. Trent Atkins: (Ex. VD20). On the 31st of August 2012, in response to this second call, the Crown Prosecutor said at 555.50T - 556.10: CROWN PROSECUTOR: Detective Sgt Trent Atkins who has not been here during the week but is here today searched the entire police file in relation to the matter and, contrary to the instructions I was given earlier in the week, in fact there is a record of the conversation that Mr Moody had with the police and in fact that resulted in a signed, five page signed statement by Mr Moody. I provide that to my friend and I also have provided to my friend a copy of Sgt Atkins' diary in which he makes mention of conversations he had with Moody and also a copy of his duty book. I understand my friend will have a lot of colourful things to say about all this but I am suggesting perhaps we might get rid of Ms Monish first then deal with that. 27It should be pointed out straightaway that the statement of Mr. Moody had never previously been disclosed to the Defence, nor was it in the Crown brief. Both Mr. Waterstreet and the Court accept the assurance of the Crown Prosecutor that neither he nor his instructing solicitor had ever been provided with the statement prior to 31st August 2012. Mr. Waterstreet was shown to be both prescient and perspicacious in the matter. 28The material then produced became Exhibits VD9, 10 and 11 respectively. The statement that Mr. Moody gave on the 1st of May 2011, being the first of those. 29On 3rd September 2012 there was informal production of additional documents being the duty books of two police officers, Detectives Cosgrove and Lowe, who were involved in the interview with Mr. Moody, marked MFI 13 and 14 respectively. Evidence was taken from four police officers being, in the order in which they were called, Det. Sgt. Trent Atkins, Det. Snr. Const. John Cosgrove, Det. Sgt. Gary Lowe and Det. Snr. Const. Christopher Ornatowski. Following this evidence and some additional documentary evidence, Mr. Waterstreet applied for me to reopen the s.38 ruling I had previously made as recorded above. Central to that application was his contention that the record of interview recorded on the audio visual disc was improperly obtained within the meaning of s.138 (1) Evidence Act. As I understood the argument, it proceeded on two premises. First, the agreement of Mr. Moody to participate in the recording of another interview was obtained by improper threats or inducements. Secondly, in determining the question of impropriety, I can have regard to the steps that were subsequently taken by the officers involved to suppress or conceal the existence of the first signed statement, Exhibit VD9, which in no way incriminated the accused. 30To address these arguments, it is necessary for me to detail more of the evidence given on the voir dire. There is no evidence suggesting that Mr. Moody was in any way involved as an aggressor in the alleged assault upon Mr. McLeod. But because of drunken behaviour, which occurred inside and outside the Fitzroy Hotel in the hour or so leading up to the assault, the manager of the hotel, Ms Sieders, who was not an eyewitness to what happened in the carpark, had given Mr. Moody's name to the police (307T.35). In fact Mr. Moody had tried to render assistance to Mr. McLeod in the carpark after he received his injuries. Evidence regarding non-disclosure issue 31The police attended Mr. Moody's home on the afternoon of Sunday the 1st of May 2011, asked him for the clothes he was wearing that evening, which he voluntarily provided, and requested that he attend the police station to speak to them about what he knew. Mr. Moody complied with this request. The officers involved at this stage were Detectives Cosgrove and Lowe from the Homicide Squad. 32After Exhibit VD9 was created and signed by Mr. Moody and Det. Snr. Const. Cosgrove, the latter spoke with Det. Sgt. Atkins about Moody's statement. Det. Sgt. Atkins gave the following evidence (583T.25 - 585T.35): To the best of my recollection I entered the interview room where I said to Detective Cosgrove who was seated at the computer and Mr Moody was seated on the opposite side, I said, "Detective where are we at with this enquiry? " The detective said, "Mitchell has indicated to me that he went to the rear of the carpark at Windsor where he saw a man lying on the ground. He doesn't know how he came to be lying on the ground. He went to give him assistance which followed through with ambulance etcetera arriving". I said to Mr Moody, "I don't think that that is a true account of what has occurred." Mr Moody said words to the effect of, "Yes it is". It was at that time I took a photocopy of I believe it to be the offence of concealment of a serious crime in the Crimes Act. I believe I also made a copy of Pervert the Course of Justice. I entered the room and I said, "Mr Moody I want you to be aware of some information". I explained to Mr Moody by saying, "Have a read of this content. I am not here to give you legal advice but I am certainly here to make you aware of that." I saw Mr Moody read the document or appear to read it. I noticed he appeared quite shaken, unsettled. At that point I said, "Mr Moody are you aware of the gravity of this situation?" I can't recall if he responded. I said to him, "There is a woman who may lose her partner. There is a young child that may lose their father. This is not talking about a school yard quarrel because the likelihood that a man will die is prevalent. As you can see what you have just read this is a very serious matter. Have you, Mr Moody, told the truth?" I saw Mr Moody's head lower. I saw him become visibly upset. He said, "Detective I have told you bullshit. I don't want to get into trouble." I believe at that point I said words to the effect of, "Nobody is suggesting you are going to be in trouble. We just want to know the truth, we just want to know what happened." He continued to be upset. He said, "I am scared because I think I will be in trouble". I said, "Why do you think you will be in trouble Mitchell?" He said, "I punched a window while I was at the front of the Fitzroy Hotel." I can distinctly recall having a sigh, a faint laughter, to the best to re enact it and say, "Is that all you are worried about, punching a window?" He said, "I am worried I might get in trouble for that." I said, "Mitchell I am investigating what is likely to be the death of a man. A punch of a window is of little importance to me." He said, "It is hard because Michael is a friend of mine." I said "I respect that." I can remember making the comment, "All people make mistakes. It is about being honest about it is what really counts." He said, "I want to tell you the truth." He took his time. He paused. He said, "I saw Michael," He said, "I saw Michael follow, chase or pursue" I can't recall the words, I know what I've recorded, I don't know if this is an abbreviation of what he said but he said, "I saw Michael, I saw Michael chase the man and he hit him on a number of occasions, on at least two occasions." 33Although no contemporaneous record was made of this conversation by any of the police officers involved, I accept Det. Sgt. Atkins account is substantially accurate given that it tallies in its important aspects with the evidence given by Mr. Moody at 458T. The substantial agreement between the two accounts displaces in my mind the concern I may otherwise have entertained about the ability of a busy police officer with Det. Sgt. Atkins case-load to recall the detail he provided. 34With Mr. Moody's consent, Det. Sgt. Atkins directed Det. Cosgrove to record an interview on a machine. 35Det. Sgt. Atkins said that at the time he had that conversation at Windsor Police Station with Mr. Moody, and indeed up until Friday 31st August 2012, he was unaware that a formal statement had been prepared by Det. Cosgrove and signed by him and Mr. Moody (594T.55 - .50; 599T.30 - .40). This does not sit easily with the reference to Mr. Moody's statement in the Det. Sgt. Atkins' diary (Ex. VD10). At 617T.40 - 618T.35, Mr. Waterstreet questioned Det. Sgt. Atkins about the phrase contained in that exhibit, his statement. He answered some questions of mine about this as follows: HIS HONOUR: What does "a statement" mean? I will ask one. Q. What does "a statement" mean? A. In my view, sorry, your Honour. Q. Yes. A. In my view a statement to me means that he was verbally giving a version of what had taken place. Q. Doesn't a statement normally connote, register, to reduce to writing, in the formal sense? A. Yes. I will return to this topic when I deal with Mr. Waterstreet's second premise. 36I will also deal with Mr. Moody's evidence that the police said they were going to dispose of his original signed statement when I return to Mr. Waterstreet's second premise. 37I infer that the conversation between Det. Sgt. Atkins and Mr. Moody was a considered tactic employed by the policeman to elicit what he believed to be the truth from the witness. Indeed, he agreed with Mr. Waterstreet that it was a deliberate tactic (610T.40). At 612T.10 he gave the following evidence: HIS HONOUR: Q. Well why is it a practice or a deliberate tactic to conduct investigations in this way and not to make any full record of what happens? A. Well in this particular case your Honour they were witnesses for this offence. I had awareness that they were connected with the apparent accused and there was more of an emphasis to ensure that the truth was being given in the statement similar to that with Mr Moody. 38Ms. Monish, another witness, was subjected to the same practice (Ex. VD10; VD11 and 612T. 30 - .40; 610T.15 - .30). I interpolate that Ms. Monish gave evidence in the trial on 31st August 2012 and impressed me, for what its worth, as a palpably honest witness. 39Det. Sgt. Atkins gave the following evidence, explaining the purpose of the procedure at 612.47 - 613.24: HIS HONOUR: Q. Well what possible justification would there in police procedure be in subjecting Ms Monish to that type of process? A. Well as I recently had seen with Mr Moody that he was also providing a version and after I had spoken to him further in the manner which I did and as I indicated what I said and showed him, it was at that point that he altered his version. Q. But don't you think there is a risk that he altered his version because he was scared of the process he had been put through, that is right isn't it? A. Possibly the case. He was scared, I have got no doubt he was scared of the situation he was in and that his friend had allegedly assaulted someone and may have amounted to that person's death, I have no doubt he was scared of that fact. Q. Well I suppose fear can elicit the truth but it can also elicit a response from the witness by way of telling the investigator what the investigator wants to hear so that the threat will go away isn't that so? A. Well I can't agree with that entirely your Honour. 40Det. Snr. Const. Cosgrove confirmed the procedure to which Mr. Moody had been subjected (626T.5 - .35). His recollection is that he had never shown the written statement to Det. Sgt. Atkins. 41Neither Det. Snr. Const. Cosgrove, Det. Sgt. Lowe, nor Det. Snr. Const. Ornatowski added any further evidence about the use or purpose of Det. Sgt. Atkins deliberate tactic. They did give evidence relevant to Mr. Waterstreet's second premise, to which I now turn. 42Although no relevant regulations, directives or instructions regarding police procedures were tendered before me, it was the evidence of each of the police officers, taken together, that what happened to Ex. VD9 - where it went, and how it was dealt with (or not) - involved a number of departures from proper police practice. Mr. Waterstreet argues that the explanation for this is an agreement made with Mr. Moody to dispose of the statement in return for him providing another version of events which suited the purpose of the investigation. This is, of course, a most serious allegation for counsel to make. I am satisfied that Mr. Waterstreet has a proper basis for making it, having regard to the evidence of Mr. Moody, who is not his witness, at 458T. 43Although I have identified these matters as separate premises, they are inter-related. I am conscious that I have detailed the first and not yet the second. But it is worth setting out counsel's argument now before detailing the various ways in which the written statement of Mr. Moody was handled, or in counsel's argument mishandled, after Mr. Moody recanted in the conversation with Det. Sgt. Atkins. 44Counsel put it in this way: .....there was a bargain between Detectives Cosgrove, Atkins and Moody to the effect that should he give a new version of events that implicated Mr Ryan, they would dispose of the earlier statement that he had given, and the essential details of it are in Mr Moody's evidence. Your Honour, that is a bargain, that s138 would not countenance. .... The second submission, what transpired is a breach of police procedure which itself is improperly obtained; that is, there seems to have been a breach in the ordinary course of police procedure and police regulation in a way in which desirability of admitting the evidence is far outweighed by its prejudice and it's impropriety, if I can put it that way. As I have said, counsel relies particularly on s.138, but also made reference to ss.135 and 137 in advancing the argument. 45Mr. Waterstreet argued (664.40) that the officers took advantage of a vulnerability of Mr. Moody. It was argued he was improperly dealt with because the officers pressured him, and subjected him to duress by making threats of gaol to obtain a favourable statement. Counsel argued that Mr. Moody's reliability must be severely up to doubt. He argued that this was impropriety of a high order, given the rank of the officers (665.10 - .20) and: Now, one does not criticise police officers too easily given their responsibilities, but this was a deliberate act by two police officers to undermine the integrity of the system by putting pressure on a witness who was at an intersection of drunkenness, and I won't say despair, but tiredness, and who had committed a version to writing but there is an inference available that that version in writing somehow disappeared. 46There was further elaboration. The conduct of the police officers was referred to as misbehaviour. It was argued that Mr. Moody was suborned, that is, he was subject to undue pressure and the previous evidence was swept away, eventually. To further this purpose, it was argued that the existence of the statement was concealed. 47It is convenient then to return to detail the evidence which underpins the second premise. 48I repeat that the statement of Mr. Moody of the 1st of May 2011 signed by him and Det. Snr. Const. Cosgrove was not disclosed, as it should have been, to either the Director of Public Prosecutors or to the accused in compliance with, at least, s.137 Criminal Procedure Act 1986 ("Criminal Procedure Act"). When Mr. Waterstreet's persistence caused the police to look for it, its trail was followed, at least on the evidence before me, by evidence which was not entirely logical or coherent and to that extent, inconsistent. Det. Snr. Const. Cosgrove took the statement, prepared it, had Mr. Moody sign it and witnessed it. Part of the process took place in the presence of Det. Sgt. Lowe, but before it was complete he was called away to attend to other matters and did not return until just before the electronic interview. On his evidence, he did not know whether or not the statement was completed and signed, and was entirely unaware of Det. Sgt. Atkins part in the process of interviewing Mr. Moody. The statement is not referred to, except obliquely in the electronic interview, Ex. VD5. 49I have already recounted Det. Sgt. Atkins evidence, that he was ignorant of the existence of the statement at all times up until he searched for relevant documents to answer the accused's Notice to Produce on 31st August 2012. 50Det. Snr. Const. Cosgrove gave evidence that he left the signed statement in an in-tray in the detective's office at Windsor Police Station before leaving, having completed his part in the investigation on the morning of the 2nd of May 2011. 51Det. Snr. Const. Ornatowski, whose evidence, as I have said, I accept, said he had never seen the statement before giving evidence before me on the 3rd of September 2012 (656T.10). As I have stated, officially he was the officer in charge of the investigation. It was his responsibility to prepare the brief of evidence and as he had not seen it, it did not form part of that brief and was not part of the evidence forwarded to the Director of Public Prosecutions. He was not previously aware that there was such a document. (656T.25). 52Det. Sgt. Atkins said that he attended Court on the 31st of August 2012 to review the material in the police file, which was by then located in an office at Darlinghurst Courthouse, looking for documents that may answer the Notice to Produce. He discovered the statement going through the file. He said at 587T.30: I had never seen that statement but I had a belief that something was recorded on the computer by Detective Cosgrove but I had never seen that document until that morning. That morning is the 31st of August 2012. 53In cross-examination, he said he found the statement in a black folder amongst photocopies of other statements. The black folder actually had the words "(?) something extortion" on its cover (601T.5). 54Naturally, all of the police officers accepted that the failure of police to disclose the statement to the DPP and to the accused was a breach of police obligations and contrary to police practice. Det. Snr. Const. Ornatowski said the following about the normal procedure for passing on a statement between investigating officers at 658.35: Normal procedure would be for the officer who is giving another officer a particular, for example this statement would be emailed, an original would be sent via internal mail with a seal on it addressed to a particular person. Det. Snr. Const. Ornatowski said there would be no COPS entry that a statement had been taken, but that fact would be the subject of an investigator's note onto Eagle-i. At 658T.50 - 659T.5 the following evidence appears: Q. Have you checked whether that was done? A. No there is no investigator's note or any reference to a statement taken by Detective Cosgrove from Mitchell Moody. Q. That is a serious breach of procedure isn't it? A. Yes it is. 55Mr. Waterstreet also made reference to other evidence which failed to mention the fact of a signed statement, when one might suppose it's existence would have been included in the narrative: (a)Ex. VD8 - a statement of Det. Snr. Const. Cosgrove dated 7th May 2011, witnessed by Det. Sgt. Lowe. Paragraph 6 refers to Mr. Moody providing an account before it was decided that an electronically recorded witness statement would be taken. It fails to mention that the account was reduced to a signed statement. (b)A statement of Det. Sgt. Trent Atkins of 18th July 2012. At paragraph 7 he refers to a conversation he had in company with Det. Snr. Const. Cosgrove with a person named Stuart Miller. He gave evidence before me that the reference to Miller in this context was a reference to Mr. Moody. Following this conversation [Moody] participated in an interview ... which was electronically recorded. Of course, Det. Sgt. Atkins says that he was unaware of the existence of the statement. (c) Ex. VD16, a statement of Det. Sgt. Lowe dated 19th of May 2011. Paragraph 14 refers to the electronic interview. No mention is made of the statement. Det. Sgt. Lowe says he was unaware of it. (d)It should be noted that Ex. VD18, Det. Sgt. Atkins duty book contains the following entry: Speak with [Mitchell Moody] and assist Det. Cosgrove obtain statement from same. During interview advised Michael Ryan had contacted the station wishing to supply a statement. Then speak D/S/C Ornatowski. Out with same to Bligh Park area. This entry confirms that the Det. Sgt. Lowe was called away whilst he and Det. Snr. Const. Cosgrove were in the process of interviewing Mr. Moody. 56Curiously, Det. Snr. Const. Cosgrove's duty book (Ex. VD17) contains the following entry: Returns to Windsor P.S. speak with Moody re. verbal version - conduct electronically recorded with statement (RO183710). 57The statement referred to seems to be the statement adopting the transcript of the interview which is part of Exhibit VD5. Strictly the reference no. R0183710 is the electronic recording. 58Mr. Waterstreet put to Det. Sgt. Atkins and Det. Snr. Const. Cosgrove, consistently with the evidence of Mr. Moody, that the statement had been disposed of as part of a corrupt bargain with Mr. Moody to dispose of the statement: as to Atkins see 596T.5 - .10 and 606T.50. As to Det. Snr. Const. Cosgrove 642T.40 - .50, 644T.35; 645T.30 - .45. 59The learned Crown Prosecutor recapitulated his argument as follows: The Crown would say in simple point form your Honour would not be persuaded there was anything improper in the police officer simply bringing to notice what the legal consequences was of someone who was not prepared to give police relevant information. The Crown would say if you leave to one side the question of any non disclosure because the same argument would apply if that document had been disclosed when the original brief was being served, the Crown would say your Honour would maintain the same view you had last week. HIS HONOUR: You say there was no concealment, it was really CROWN PROSECUTOR: To use your Honour words a moment ago a "stuff up" misfiled in the wrong folder on Ornatowski quite innocently went about compiling a police brief in ignorance of this other document.

Section 138 Evidence Act 60It is necessary to put the matter in its legal context to resolve the issue. The present issue is a question which depends upon the Court finding that a particular fact exists for the purpose of s.189 Evidence Act. The importance of the question to each party is demonstrated by the fact that the voir dire was conducted at such length. The central question is one arising under s.138 of the Evidence Act. I will set out the terms of s. 138(1) in full: (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. 61The preliminary question here is whether the account contained in Mr. Moody's electronic interview is evidence that was obtained improperly ... or in consequence of an impropriety. It has not been put to me that there has been any breach of any legislation or regulation other than the breach of s.137 Criminal Procedure Act, and s.15A Director of Prosecutions Act 1986. But those breaches do not relate to the obtaining of the evidence. 62It is settled law that the onus lies on the accused to establish an impropriety, and once established, the onus is on the Crown to persuade the Court that the evidence should be admitted nonetheless because the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained improperly or in consequence of an impropriety: R. v. Coulstock (1998) 99 A Crim. R 143 at 147; Robinson v. Woolworths Limited (2005) 64 NSWLR 612 at 621 [33] per Basten JA (Barr J agreeing at 627[82] and at 632[106] per Hall J). 63Section142(1) Evidence Act prescribes the civil standard of proof for the determination of the preliminary question. 64The language of s.142(2) invokes the approach mandated by Briginshaw v. Briginshaw (1938) 60 CLR 336 15 361-362 per Dixon J; Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ. 65As the preliminary question involves the resolution of an allegation of police impropriety, there is no doubt that the provisions of s.142(2) need to be applied in the resolution of the problem by reference to the ideas expressed in Briginshaw: New South Wales v. Hathaway [2010] NSWCA 184 at [262], [263] and [272] per the Court; R (Cth) v. Petroulias (No. 8) [2007] NSWSC 82 at [14] - [18]; R (Cth) v. Petroulias (No. 9) [2007] NSWSC 84 at [14] - [18]; 66The cases concerning s.138 Evidence Act have pointed out that there is no definition of improper or impropriety in the Act. In Robinson at 618[22] - [24] Basten JA made the following remarks: [22] ... On the other hand, because the Act does not define the concept of impropriety, it is difficult to perceive any necessary intention on the part of the legislature to vary the principles collected in [Ridgeway v The Queen (1995) 184 CLR 19], derived from earlier Australian authority. Accordingly, those principles should be applied. [23] It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases the joint judgment in Ridgeway (at 39) referred to offences being procured or induced. [24] On the other hand, the clear intention of s 138 is to replace the general law discretion to exclude such evidence; the two cannot sensibly coexist together: cf, for example, Papakosmas v The Queen (1999) 196 CLR 297 at 302 [10], per Gleeson CJ and Hayne J). 67In a ruling made by Sully J in R. (Cth) v. Petroulias on 29th March 2005, his Honour referred to the judgment of Stephen and Aickin JJ in Bunning v. Cross (1978) 141 CLR 54 at 75: There is no initial presumption that the State by it's law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called into question in such cases, but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. This statement gives content to the idea of the minimum standard which a society such as ours should expect and require of those entrusted with powers or law enforcement picked up by Basten JA from the joint judgment in Ridgeway.

Resolution of s 138 issue 68Perhaps first among the many law enforcement functions of the police is the detection and solution of crime for the purpose of bringing perpetrators to justice. In this process, detectives will commonly be confronted by uncooperative or recalcitrant witnesses. The refusal of witnesses to co-operate with police in the investigation of crime, due to some misconceived code of honour, or otherwise, is itself a social evil. Every member of the community will be familiar with the concept of even serious crime going unpunished because witnesses refuse to tell the police what they know. It is unnecessary for me to decide whether that happened here, because the question is whether the police did anything wrong in eliciting further information from Mr. Moody after his original account. 69In my opinion, the police are not bound to accept a witness at his or her word; the police are not powerless to press an unwilling, uncooperative or recalcitrant witness to disclose what they know. The pressure that was applied to Mr. Moody has not been shown to be unlawful in the sense that it contravened any Act, Regulation, instruction or direction by which the officers were bound. Nor was it obviously contrary to common law. He was not tortured or beaten to disclose what he knew. 70The officers simply articulated their suspicion that he was not telling the truth. They reminded him of his legal obligations in that regard, and of the gravity of the case, in both legal and human terms. On one view of the facts (this is purely for the jury to decide) when confronted with these factors, Mr. Moody told the truth. Whilst this is a jury question, for present purposes I am not satisfied on the civil standard, informed by the Briginshaw considerations, that such threat of prosecution or inducement by way of overlooking any charge that may arise out of providing a false statement, was improper or the conduct of the police officers constituted an impropriety. 71In making these observations, I have borne in mind that prosecuting authorities, on behalf of the executive government, not infrequently make "deals" with suspected offenders to facilitate the detection of greater crime, or the prosecution of more dangerous offenders. In some circumstances, the courts facilitate this process by providing discounts on the sentence that would otherwise be appropriate; indeed, the judicial branch of government has no power to prosecute an offender who has been granted an indemnity. Although the evidence provided by these persons must be treated cautiously and will often be subject to a jury warning, it is not suggested that the law enforcement agencies involved have acted improperly generally by adopting such tactics. How it occurs in a given case may involve impropriety: Ridgeway. 72I am not persuaded that there was any agreement to dispose of the signed statement. Although I think on these matters Mr. Moody was an honest witness, and in any event, as I have said, the substance of his evidence was borne out by the evidence of Det. Sgt. Atkins, it does not follow that I should accept literally everything Mr. Moody said. I accept that some assurance was given that there would be no adverse consequence flowing to Mr. Moody because he provided the police with a "false version". On Det. Sgt. Atkins account, Mr. Moody said: I am scared because I think I will be in trouble. 73Expressly Det. Sgt. Atkins assured him that he wouldn't be in trouble for attempting to punch the window at the Fitzroy Hotel. I find that it was implicit in their conversation that similar assurance would extend to the provision of the first account. It may have been that words were spoken to that effect, as Mr. Moody's evidence indicated. There was no "bargain" to literally dispose of the statement. The statement was not disposed of. Had any police officer wished to do so, doubtless it could have readily been destroyed. Instead, when the defence pressed for it, it was located in the police file amongst other photocopied statements. Whilst the tone of Mr. Waterstreet's cross-examination about the discovery of the statement may have been appropriately sceptical, it was not directly put to Det. Sgt. Atkins that his evidence about searching for and finding the statement in the police file was untrue. 74Dealing with the history of the statement subsequent to the 1st of May 2011, as a separate issue, I am not satisfied that an impropriety has been established. Whilst, I accept that "burying" the statement would have been capable of being a form of disposing of it, I am not satisfied that this possibility explains what happened. Nor am I satisfied that the evidence contained in MFI 21, the electronic recording, is evidence obtained in consequence of that matter. 75I have already expressed the view that the explanation given by the various police witnesses, taken as a whole, is neither coherent nor logical. To that extent, it is unsatisfactory and the departures from police practice I have documented are matters for real concern. 76My finding is that the statement was misplaced through carelessness, which carelessness is explained by the consideration that the subsequent electronically recorded interview had overtaken earlier events. The interview became the record of what evidence Mr. Moody was likely to give. 77Had I come to the conclusion that the evidence had been deliberately suppressed, my finding about the impropriety issue may have been different, given the obligations of investigating police officers imposed by s.15A, Director of Public Prosecutions Act 1986. A contumelious breach of that section, being egregiously unlawful, would have been quite inconsistent with or clearly inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. 78Had that been my finding, I may have concluded that the evidence contained in MFI 21 was obtained either improperly or in consequence of an impropriety. For deliberately suppressing the existence of the first account corruptly to obtain the second could be seen, as Mr. Waterstreet argued, as an attempt to enhance the reliability of the second by improperly bolstering the credit of it's maker by hiding a prior inconsistent statement, a commonly potent tool in cross-examination by the defence. 79In those circumstances, the prosecution would have borne the onus of establishing that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in a way in which the evidence was obtained by dint of s.142(1). 80Considering the mandatory considerations set out in s.138(3), I would have come to the following conclusions: (a)The evidence has significant probative value given that it was an eyewitness account of what happened in the carpark. True enough, especially assuming a corrupt bargain to suppress the evidence, the striking of the bargain as well as the fact of the existence of a prior inconsistent statement would have called Mr. Moody's reliability into significant question: R. v. Ladocki [2004] NSWCCA 336 at [68]. As reliability is essentially a matter for the jury, the latter consideration does not, in my judgment, diminish the probative value of the evidence at this threshold level. (b)The evidence is important in the proceedings. Mr. Moody is one of only three possible eyewitnesses; the others are Mr. Stuart Miller and Ms. Brooke Edgecombe. Mr. Miller's evidence was weak and the Crown was given leave to cross-examine him under s.38 on a prior inconsistent statement. He is a good friend of the accused. Ms. Edgecombe is yet to give evidence. This factor favours admission of the evidence. (c)The nature of the relevant offence favours the admission of the evidence. Mr. Ryan, as I have said, stands charged with the alleged manslaughter of Mr. McLeod. This is a serious offence and there is a significant public interest in him standing trial. This favours admission. (d)On the assumption I am making for this contingent exercise of discretion, I have already said that a deliberate and contumelious decision to "bury" the first account involves an egregious breach of s.15A Director of Public Prosecutions Act. This factor favours exclusion. (e)On my assumed basis, the impropriety is deliberate. This is a strong factor against the exercise of the discretion to admit the evidence: Parker v. Comptroller-General of Customs (2007) 243 ALR 574 at [65] per Basten JA. Clearly this factor favours, significantly, exclusion. (f)The International Covenant on Civil and Political Rights was not prayed in aid of the argument on behalf of the accused here. (g)Bearing in mind that I have found, in fact, no impropriety, it is impossible to assess the likelihood of disciplinary action or the like being taken had there in fact been impropriety. There is no material before me from which I can draw any inference about that matter. Had the hypothetical facts been established in this Court they would undoubtedly have come to the attention of the authorities responsible for police discipline. Appropriate action can be assumed therefore. This factor also favours admitting the evidence. (h)In my opinion, as the fact as I have found them show, the relevant evidence, i.e. MFI 21, could easily have been obtained without the relevant impropriety. 81I appreciate that the factors identified in s.138(3) are not exhaustive of the relevant considerations a court may take into account in exercising the s.138(1) discretion. However, in the present case no other matters were called to my attention in argument. I appreciate it is highly artificial to engage in a contingent exercise of this discretion. But had I been satisfied that there was impropriety in the case, in my judgment, the s.138(3) factors, especially (a), (b), and (c), would have narrowly favoured admitting MFI 21 notwithstanding the importance of the obligations of full and fair police disclosure in the accusatorial and adversarial criminal justice system.

Application under s 165 Evidence Act 82Mr. Waterstreet argued that if I resolved the s.138 question in favour of the prosecution, I should nonetheless hold that the evidence of Mr. Moody was evidence of a kind that may be unreliable within the meaning of s.165 of the Evidence Act. In my opinion the evidence does not fall into the specific, non-exhaustive, or inclusive, examples of unreliable evidence contained in subsection (1) of s.165. I firmly bear in mind that if the evidence is of a kind that may be unreliable the accused on the application of his counsel has a right to have the jury warned unless I consider there are good reasons for not doing so. 83Two reasons were advanced to establish that the evidence was of a kind which may be unreliable: first, Mr. Moody's high level of intoxication at the time he witnessed the events in the carpark; and secondly, the fact that he had made inconsistent statements. 84I should interpolate that Mr. Waterstreet did argue, I thought, faintly, that the evidence was identification evidence within the meaning of s.165(1)(b) in as much as Mr. Moody identifies the victim wrongly, as someone who must be Mr. Poile, rather than Mr. McLeod. But identification evidence is a phrase defined in Part 1 of the dictionary. The phrase refers to evidence identifying an accused person: R. v. Stewart (2001) 52 NSWLR 301 at [104]. 85The Court of Criminal Appeal discussed s.165 in R. v. Stewart. Howie J (with whose reasons Hulme J was in substantial agreement) made the following observations: (a)His Honour referred to, and applied R. v. Baartman [2000] NSWCCA 298 where Kirby J observed: The need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of Courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence. (b)At [98] Howie J said: Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not "of a kind that may be unreliable" and the section does not apply. (c)At [99] Howie J said: In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone "evidence of a kind that may be unreliable". (d)After referring to Beazley JA's judgment in R. v. Lewis, (unreported 8th September 1998) at [17], his Honour said at [105]: If this passage of the judgment is to be read as requiring that a warning under the section be given when requested in every case of a witness who is affected by bias or was at the time of the event intoxicated, I, with respect, do not believe that it should be followed. It is inconsistent with the view of the section taken in R v Baartman and, in my view, the purpose of the section. 86In my judgment, the jury are well equipped by their own experience of life to assess the effect that intoxication may have on the reliability of an account given by eyewitnesses as drunk as Mr. Moody apparently was in the early hours of 1st of May 2011. Likewise, their own experience of life well equips them to assess the effect of inconsistent statements on the reliability of a witness's testimony. These matters do not depend upon the accumulated or collective experience of the courts and do not put Mr. Moody's evidence into a class which may be unreliable, calling for a s.165 warning. 87Mr. Waterstreet also referred me to Ho v. Director of Public Prosecutions (Cth) (1998) 102 A Crim. R. 37. I have already found that there was no agreement to dispose of Mr. Moody's statement. Moreover, I am not satisfied that there was any true agreement not to charge Mr. Moody in relation to punching the window of the Fitzroy Hotel, or giving a false account in respect of the signed statement. In my judgment Ho has no application either in the context of s.138 or in the context of s.165. 88I am satisfied that s.165(3) is engaged.

Rulings 89It's for these reasons I make the following rulings: 1.I reject the defence application to exclude under s.138 Evidence Act 1995 evidence of the prior inconsistent statement made by Mr. Moody on 1st of May 2011 as set out in Exhibit VD5; 2.I allow the defence application that I re-open and reconsider my ruling under s.38 of the Evidence Act made on 30th August 2012; 3.I confirm my previous ruling in the following terms: Under s.38 of the Act I give leave to the Crown to cross-examine Mr. Moody on answers given to questions 363 to 438 recorded in the record of interview made on 1st May 2011, with the exception of question and answer 419. I direct that Mr. Moody may be cross-examined on the basis of the audio/visual recording made contemporaneously with that interview, but the recording of segments of it shown the jury are to include question and answer 37, appearing on pages 5 to 7 of the transcript. 4.I revoke the condition previously expressed of that grant of leave that I provide a direction to the jury in accordance with s.165 of the Evidence Act.

Amendments 27 September 2012 - word "relay" changed to relate Amended paragraphs: Paragraph 2 27 September 2012 - Word "member" changed to "memory" Amended paragraphs: Paragraph 6 27 September 2012 - Citation changed to "Ho v. Director of Public Prosecutions (Cth) (1998) 102 A Crim R 37" Amended paragraphs: Paragraph 87 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2012

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