R v MR, JB and CS

The MR CCTV evidence

After MR stabbed the deceased, he and JB ran into the bush area opposite TK's home and exited on the other side of the bushes moving in a path that took them to 2 Bishop Court, Ropes Crossing.
CCTV at those residential premises recorded both video and audio of MR and JB.
MR is recorded on that CCTV device to say, "Told ya cuz, I told ya I was gonna stab him. I got him good".
Although the Crown's initial position was that words were uttered by JB in response which could be heard and deciphered, that submission is no longer maintained. The Crown contends that MR's representation is nevertheless admissible against JB because the Crown relies upon MR's words, "I told ya cuz. I told ya I was gonna stab him", as to their truth, that is, for a hearsay purpose. It submits MR's words are relevant to its case against JB because they are capable of proving (or assisting to prove) that JB knew the nature of the enterprise to which it is alleged he was a party and that the actions he took in relation to the deceased were with that state of mind and in furtherance of that enterprise.
Section 59 of the Evidence Act 1995 (NSW) relevantly provides that evidence of a previous representation made by a person (here a statement made by MR) is not admissible (here against JB) to prove the existence of a fact it can reasonably be supposed that MR intended to assert (namely, that he told JB before he stabbed the deceased that he was going to stab the deceased, albeit likely only very shortly beforehand).
One exception to the hearsay rule is provided by s 65 of the Evidence Act. It permits hearsay evidence to be admitted in criminal proceedings where the maker of a previous representation is not available to give evidence.
It is agreed that MR is "not available" to give evidence as a witness called by the prosecution because he is an accused person in the joint trial. By virtue of s 17(2) of the Evidence Act, he is not competent to give evidence for the Crown and is therefore "unavailable" to give evidence.
Although in its notice the Crown expressed reliance upon the exceptions provided by subss (2)(b), (c) and/or (d) of s 65, its primary position is that MR's representation is admissible hearsay evidence against JB pursuant to subs (2)(b). It relevantly provides: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation - … (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication […]
In R v Singh (No 4) [2021] NSWSC 75 (and in particular at [22] to [45]), N Adams J set out the principles regarding the approach to be taken when considering the admissibility of a hearsay representation made by an unavailable witness in criminal proceedings pursuant to s 65. I do not intend to repeat all that her Honour clearly and comprehensively set out within those paragraphs. It can be relevantly summarised as follows: 1. It is no light thing to admit a hearsay statement inculpating an accused person because where s 65 is successfully invoked by the Crown, the accused will have no opportunity to cross-examine the maker of the representation with a view to undermining any inculpatory assertion. 2. As a threshold issue, the asserted fact sought to be proved through the hearsay statement must be relevant to an issue in the case. 3. If there are multiple representations, each representation must be identified with precision by the party making the application and the admissibility of each representation must be considered separately and not in a compendious way. [1] 4. The objective circumstances in which the representation was made must be considered in order to determine whether the conditions of admissibility prescribed by s 65(2) are met. In assessing those circumstances, the court can have regard to events and circumstances beyond those in which the representation was made if such matters bear upon and/or shed light upon the making of the representation (Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [70] although noting that in Sio, s 65(2)(d) was relied upon as the basis for admissibility which does require that regard be had to reliability of the representation which is not so for subs (2)(b)).
What thus falls to be determined is whether MR's representation is admissible hearsay evidence against JB pursuant to s 65 and if it is, whether it should be excluded pursuant to s 137.
In R v Tarantino [2019] NSWSC 939 Beech-Jones J (as his Honour then was) considered the requirement in s 65(2)(b) of the Evidence Act that the representation be made "shortly after" the occurrence of the asserted fact. In relation to the temporal requirement, his Honour said, "typically passages of time of seconds or hours have been held to satisfy the test of 'shortly after'" (at [26]).
MR's representation was made within minutes of the occurrence of the asserted fact. I am satisfied the necessary temporal requirement has been met.
The Crown submits the Court would be satisfied MR's representation was made in circumstances that make it unlikely it was a fabrication. It was spontaneous and unrehearsed and made while MR and JB were fleeing the very location where the deceased was lying on the ground having been stabbed by MR and kicked by at least JB and/or CS. It was, the Crown submits, very much a representation made under the "proximate pressure" of the prevailing situation. Furthermore, the representation was made to the very person to whom the representation relates - that is, the "ya" to whom MR represents he "told" is the same person MR was with while travelling past 2 Bishop Court (that person being, it is agreed, JB).
Ms Talbert submits the Court would not be satisfied MR's representation was made in circumstances as to make it unlikely it was a fabrication. MR and JB had just fled from TK's house where they had attended a gathering and where alcohol had been consumed. They were moving quickly and one or both of them were audibly exerted. The representation contains no detail regarding when or in what circumstances MR purportedly told JB he was "gonna stab him" and there is no audible reply by JB to the representation. Ms Talbert contends that there is nothing to suggest MR's representation was a considered statement or anything more than mere bravado or simply an "off the cuff" statement. Furthermore, she points to the fact there was very little opportunity for MR to have in fact told JB that he was "gonna" stab the deceased.
I am satisfied MR's representation was made in circumstances that make it unlikely it was a fabrication. It was uttered by MR while the pressure of what had just occurred was immediate and palpable and in circumstances where MR would neither have considered nor expected recording equipment to have captured what he was saying and there is no obvious or apparent reason for him to be exaggerating or embellishing. Importantly, the representation, "I told ya I was gonna stab him", was said at the very same time MR made an assertion that was against his own interests, "I got him good". Although alcohol was consumed by persons at the gathering, including it appears by MR, there is no evidence that his consumption was particularly excessive.
Section 137 of the Evidence Act requires the court to refuse to admit evidence sought to be adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice. It requires the court to weigh the probative value of the evidence against the danger of unfair prejudice to an accused person.
The probative value of the evidence depends on the nature of the facts in issue to which it is relevant and the capacity the evidence has to bear upon such facts. The evidence must be taken at its highest without regard to considerations of reliability, credibility and the likelihood the evidence would be accepted by the jury and if so, what weight it would afford to the evidence in determining the facts in issue.
The Crown submits the evidence has the capacity to affect the assessment of the probability of the existence of a significant fact in issue in its case against JB. If the jury accepts that MR told JB that he (MR) was going to stab the deceased before stabbing him and that JB heard MR say that, that has a significant bearing on the true nature of JB's state of mind thereafter and whether the Crown can prove his participation in the joint criminal enterprise alleged.
Ms Talbert submits that the probative value of the evidence is limited given the absence of detail regarding the circumstances in which JB was purportedly told by MR that he (MR) intended to stab the deceased; for example, when it was said, where it was said, whether JB heard it being said, what JB's reaction was to it being said and whether there was any further conversation between MR and JB that may or may not support the existence of an agreement between them. Furthermore, Ms Talbert submits the probative value of the evidence is reduced because any further communication between MR and JB after MR's representation was recorded is not audible and thus not decipherable.
When regard is had to what is sought to be proved by the evidence against JB, I am satisfied the probative value of the evidence is high. It is evidence capable of proving JB's state of mind which is a critical matter the Crown must prove.
I turn then to the danger of unfair prejudice to JB if the evidence is admitted. Here the concern is with prejudice that is unfair because it is additional to the adverse or damaging effect evidence might have to an accused person by virtue of its probative value. Unfair prejudice directs attention to the risk (or danger) the jury might misuse the evidence in some unfair way. This may arise by provoking an irrational, illogical or emotional response to the evidence, or affording the evidence undue weight or using the evidence in a way logically unconnected to the facts in issue (Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37).
In carrying out the balancing exercise required by s 137, a court must take into account any warnings or directions that may be given in relation to the evidence which may serve to reduce or remove the danger of unfair prejudice (R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112).
Ms Talbert submits that a high degree of unfair prejudice would be occasioned to JB if MR's representation was admitted against JB. It would likely mean JB would be unable to test the evidence because he would be unable to cross-examine MR. Further, in the absence of direct evidence as to the circumstances in which MR purportedly told JB he was going to stab the deceased, JB's right to silence would be abrogated because he would be forced to give evidence regarding what MR purportedly did or did not say prior to the stabbing, whether he heard it and if so, what he understood it to mean otherwise the jury would be left to impermissibly speculate about such matters. Ms Talbert further submits that because the portion of the CCTV evidence after MR's representation is inaudible, it is unknown whether JB said anything in response to MR's representation that might bear upon whether he was in fact "told" by MR that MR was going to stab the deceased.
Evidence called by the prosecution in a criminal trial will typically require an accused person to consider whether he or she wishes to give evidence, particularly in relation to evidence that is adverse to him or her and where he or she elected to exercise the right to silence. In addition, where the source of part of the evidence in the Crown's case comes from an unavailable witness, an accused person is necessarily deprived of the opportunity to cross-examine that witness. That is a prejudice recognised and contemplated by s 65 of the Evidence Act which permits the admission of the evidence of an unavailable witness in certain circumstances (subject to other provisions). Whether that will occasion an unfair prejudice will depend upon the circumstances.
In the present circumstances admission of the evidence against JB will require that the jury be directed that the one piece of evidence, namely MR's representation, is admissible and available to be used by them in different ways when determining whether the Crown has proved its separate case against MR and its separate case against JB.
A direction would at least be required that the evidence is admissible against MR on the basis MR made an admission that he stabbed the deceased and "got him good" and that before he stabbed him, he told JB he was "gonna" do that. It will then be for the jury to determine what probative value that evidence has in determining whether the Crown has negatived self-defence.
In relation to JB, a direction would at least be required that the evidence is admissible against JB on a different basis. Namely, if the jury accepts the evidence and accepts that JB heard MR say what he was "gonna" do to the deceased, the evidence is capable of proving JB's understanding of the nature of the enterprise to which it is alleged he joined (in particular that he believed MR was going to stab and thereby wound the deceased) but that it is not evidence of any admission by JB and must not be used in that way. I do not consider this to be a direction that is difficult or illogical or one that cannot be comprehended by the jury.
Insofar as it may be the case that JB will be unable to cross-examine MR, I am not of the opinion that would be unfairly prejudicial to JB. Should that eventuate, it can be the subject of submissions by Ms Talbert and of directions.
Insofar as it is submitted the evidence would infringe upon JB's right to silence, as I observed earlier, evidence led in a prosecution case often places an accused person in a position where he or she has to decide whether to become a witness in the trial. This is not a matter that gives rise to a danger of unfair prejudice.
I am not of the view the probative value of the evidence in the Crown's case against JB is outweighed by the danger of unfair prejudice to JB such that the Court must refuse to admit the evidence. The MR CCTV evidence is admissible (against JB).
I have dealt with the admissibility of MR's representation against JB for a hearsay purpose finding it to be admissible hearsay evidence pursuant to s 65(2)(b) of the Evidence Act. If I am wrong in that regard, it seems to me the evidence would nevertheless be admissible against JB for a non-hearsay purpose. That is, it would be open to the Crown to lead MR's representation against JB on the basis the evidence establishes that MR said that he was "gonna" stab the deceased and that irrespective of whether those words were intended by MR to be a truthful statement as to his own intention, the fact MR said those words is evidence capable of proving JB's own state of mind at the time it is alleged he participated in the joint criminal enterprise. In this way, the evidence would be relevant and admissible against JB without the need to establish an exception to the hearsay rule. I do not propose to say anything more about this as it has not been the subject of submissions by the parties.
Before completing the issue of the admissibility of the MR CCTV evidence against JB, I note the submissions made by Ms Talbert in relation to ss 83 and 90 of the Evidence Act. Unlike in its case against MR, the Crown is not relying upon the CCTV evidence as being an admission by JB. Accordingly, neither of those provisions apply.

The BS/MR evidence

The Crown relies on the BS/MR evidence - in particular that BS told MR that he cannot tell the police the story he told her and had to change his story and tell police the deceased hit him first and it was self-defence and to say that he did not take the knife to the party and only got the knife from TK's house and what BS said to MR in Product 1065 regarding what to tell his lawyer - to negate MR's anticipated case that he was acting in self-defence when he stabbed the deceased. The Crown argues that this evidence in combination with other evidence to be led against MR is capable of providing the basis for an inference that MR is raising self-defence not as a result of his own experience of the circumstances in which he stabbed the deceased but from what his mother told him to say. In this way, the Crown relies upon the evidence to assist in proving the true nature of MR's state of mind at the time he stabbed the deceased, namely that he did not believe it was necessary to stab the deceased in order to defend himself.
The admissibility of the BS/MR evidence is opposed by Mr Evers whose arguments can be encapsulated as follows. The evidence should be excluded because the Crown is in fact relying upon it for a hearsay purpose. Namely, an implied representation by BS that MR had previously provided an account (or accounts) about the circumstances in which he stabbed the deceased which was not consistent with self-defence. Furthermore, Mr Evers contends that the evidence is inadmissible opinion evidence because BS is expressing her opinion as to the legal effect of MR's previous account (or accounts) and whether such account (or accounts) was or was not consistent with the legal concept of self-defence.
The Crown argues the hearsay exclusionary provisions are not engaged because the Crown is not seeking to rely upon any representation (express or implied) on the part of BS for a hearsay purpose. Rather, the Crown relies upon the evidence for a non-hearsay purpose that being to establish that whatever be the nature of any account provided by MR at any earlier point in time whether to BS or any other person, the words uttered by BS demonstrate that she told MR he could not tell police the account (or accounts) he told her previously (whatever that may have been) and had to change that account (or accounts) and tell police the deceased hit him first and it was self-defence and that he did not take a knife to the gathering and got the knife he used to stab the deceased from TK's house. The Crown contends that Product 1065 demonstrates that BS reinforced those instructions including by telling MR, "You know what to say, everything we said before".
The Crown argues that the opinion rule in s 76 of the Evidence Act does not render the evidence inadmissible because evidence of any belief purportedly held by BS regarding the involvement of her son in the stabbing is not led to prove the existence of any fact about which such opinion is expressed. However, because the evidence is led for another purpose (as evidence with a capacity to bear upon MR's anticipated case that he acted in self-defence), the Crown contends that s 77 of the Evidence Act applies.
I do not accept the submission of Mr Evers that the Crown is using the evidence for a hearsay purpose. The Crown is relying upon the evidence to establish that irrespective of whatever MR told his mother previously, she told him he was not to tell police that "story" and was to change his "story" and raise a claim of self-defence. That is significant evidence in circumstances where the Crown is on notice that MR will assert he was acting with a lawful excuse of self-defence such that the onus will be on the Crown to prove beyond reasonable doubt that at the time MR stabbed the deceased he was not acting in the defence of himself.
Insofar as Mr Evers submitted that R v Rose [2002] NSWCCA 455 lends support for his argument, the circumstances in that case were quite different to those before this court. Mr Rose was convicted of the murder of his wife and appealed on a number of grounds including that the trial judge erred in admitting evidence from a police officer regarding silence by 300 university students who had been asked whether they had seen the deceased with a person in a vehicle of the kind Mr Rose claimed to have last seen his wife in when she purportedly left his flat and disappeared. The Crown argued that the evidence of the response, or lack of response, to the inquiry was led only to prove that no student came forward in answer to the inquiry. In a joint judgment of Wood CJ at CL and Howie J (to which Smart AJ agreed), it was held that the fact no student came forward was not relevant unless the evidence was led to establish that the failure of any student to respond to the question was in fact because the deceased did not enter such a vehicle. Their Honours concluded that the evidence gave rise to an implied representation that the deceased did not get into such a vehicle and that was hearsay evidence however observed that if the evidence of the response (or lack thereof) was relevant for some other purpose it was admissible. The present circumstances are very different. The Crown is relying on the verbal acts of BS to MR that he had to change his "story" and what he was to say and not say about the circumstances of the stabbing. The Crown will invite the jury to consider whether that evidence in combination with other evidence including what MR said at 2 Bishop Court and his conduct after the offence, has any bearing on whether the Crown has negatived self-defence. That is not a matter that involves speculation of the sort referred to Rose.
If I am wrong in that regard and the evidence is properly characterised as inadmissible hearsay, the evidence would likely be admissible as an implied admission. An inference would plainly be available that whatever "story" MR told his mother previously, it did not include that the deceased hit him first and that he acted in self-defence and did include that he took a knife with him to the gathering. Such evidence would arguably be admissible hearsay evidence because it would be capable of being used as an admission on the part of MR. I do not propose to say anything more about this as it has not been the subject of submissions by the parties.
Insofar as Mr Evers contends the evidence is inadmissible opinion evidence because it is relevant for another purpose, s 77 of the Evidence Act applies. It will be prudent however for the parties to consider whether an order should be made pursuant to s 136 of the Act limiting the use to which the evidence can be put to prevent it being used for the purpose described in s 76.
Mr Evers contends that if the Court rejects his characterisation of the evidence as inadmissible hearsay and/or opinion evidence, additional considerations militate against its admission. As I understand his submissions, those considerations are as follows. The Crown does not know what MR in fact said to his mother on any prior occasion and therefore there is no way the jury can assess whether BS' response was reasonable or responsive to what MR had previously told her in a context in which BS is not a witness intended to be called by the Crown.
In this regard, leaving aside the possible consequences of the application of s 18 of the Evidence Act, the Crown confirmed that BS is not a witness the Crown intends calling in its case against MR. While the Crown asserted a willingness to have BS made available if requested by Mr Evers, the Crown raised a concern arising from the fact BS has been charged with an offence pursuant to s 315 of the Crimes Act 1900 (NSW) and as I understand it, has pleaded or will plead guilty to that offence with agreed facts including, inter alia, that she instructed MR as to what to say (and/or not say) to police. Mr Crown observed that BS' legal position complicates her being called at all.
Mr Evers submits that there is inherent unfairness in the Crown being permitted to adduce the evidence relating to BS in circumstances where she is not being called. Furthermore, Mr Evers submits that because AE did not hear the full exchange between MR and his mother, the probative value of the evidence is low. He also contends that the relationship of mother and child is a relevant consideration coupled with the fact MR was only 17 years of age at the relevant time and apparently suffers impaired cognitive ability and a severe language disorder. Accordingly, he argues that the inference is available that BS was simply reminding her son to make sure he communicates his defence to the charge to the police and/or his legal representatives. I pause to observe that no evidence was tendered before me on the application to exclude the evidence regarding MR's cognitive capacity and/or language capacity.
Mr Evers accordingly submits that the BS/MR evidence should be rejected pursuant to s 137 of the Evidence Act because its probative value is "so limited" yet there is a very high risk the jury will misuse the evidence which cannot be cured by any direction resulting in a danger of unfair prejudice to MR.
After careful consideration, I am not of the opinion it would be unfairly prejudicial to allow the Crown to rely upon the BS/MR evidence in its case against MR. The circumstances alluded to by Mr Evers, including the fact BS will not be called as a witness and the fact there might be an available inference the jury might ultimately prefer (namely, a mother reminding her son as to his defence), can be the subject of submissions and appropriate directions. Insofar as there is a danger that the jury might misuse the evidence in some way, for example for an impermissible hearsay or opinion purpose, directions can be given to the jury explaining how the evidence can be used and must not be used. I do not consider this would lead to directions that would be difficult or illogical or incomprehensible.
I am not of the view the probative value of the evidence in the Crown's case against MR is outweighed by the danger of unfair prejudice such that I must refuse to admit the evidence. The BS/MR evidence is admissible (against MR).

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (3)

Cases Cited (11)