On 27 September 2013, at the conclusion of the evidence in the accused's committal proceedings, the presiding Magistrate expressed a conclusion that a reasonable jury, properly instructed, could find that the accused had committed the indictable offence of murder as well as the offence of intimidation. The Magistrate proceeded to address the accused in the following terms:
"Mr Medich, before you say anything in answer to the charge, you should know you do not have to say anything unless you want to. However, if you do say something it may be recorded and used against you at your trial. You should understand that if a promise of favourable treatment has been made to you if you make admissions as to your guilt, that promise cannot be relied upon. Similarly, you have nothing to fear from any threat that may have been made to you to persuade you to make any admission as to your guilt. However, even if you have received such threat or promise, anything you say now may still be used against you at your trial. Mr Medich, do you want to say anything in answer to the charge today?"
At the conclusion of those remarks the accused is recorded as stating, amongst other things:
"I'd like to make a statement."
The accused then made a lengthy statement from the body of the court. Because of the issues which have arisen in relation to the admissibility of that statement, it is necessary for me to set it out in full. It was in the following terms:
"Thank you, your Honour. I would like to say something at last, despite all my court appearances I can say a few words of my own. I am not guilty of these offences. I have always said so and that's all along the way from the beginning. I would like to make a brief statement in response to what I've heard in this committal.
I am not a violent person. I've never been a violent or physically aggressive man and I did not authorise and have not authorised anyone ever or urged or encouraged or ordered anyone, let alone Gattellari, to harm or hurt or threaten anyone connected with this case. What happened to Mr McGurk and his family is a terrible and unwarranted thing and as I have family, like everyone, I have a great sympathy for the McGurk family and what has happened to them. I was, as your Honour knows, in financial dispute with Mr McGurk but that never persuaded me to do anything violent towards him.
I wish very much that I had listened more carefully to the encouragement and guidance of my brother, Roy, and my ex-wife, Odetta, who warned me about Gattellari. I should have taken their advice and ceased to have anything to do with him. I had a nervous breakdown some years ago which is well-known to close friends, family and business associates. I should've taken conservative advice at making decisions but I did not think things completely through and in hindsight I have made some stupid financial decisions. Roy, however, picked up the slack and made an enormous contribution to our businesses and Roy would regularly say, "Have nothing to do with Gattellari."
I have never really had many friends, nor been particularly good with my relationships. Whether that's a result of some scepticism in others because they appreciate my wealth more than myself, I don't know. But I have never been told I am not a particularly - but I have been told I'm not a particularly good judge of character. I understand the public perception that is out there. Why on earth was someone like me hanging around someone like Gattellari. With hindsight I should've avoided him like the plague. I understand those people. If they knew the truth about Gattellari, wouldn't want to hang around with him but back then he posed that he was a close supporter of me and a friend of mine. I have since found out that none of that was true.
The truth and extent about Gattellari's stealing from me has only been revealed recently through the evidence and the documents my solicitors have located and produced. Gattellari's evidence at the ICAC about land dealings with Aboriginal Councils has been contradicted here by sworn testimony. He is obviously a man who is extremely dishonest and people are afraid of him. I can't understand for the life of me how I trusted him but he is a very, very cunning person. I propose to take whatever action I can to recover the stolen moneys, despite Gattellari's criminal attempts to hide those moneys.
Gattellari's allegations I would ever want to rob my brother to teach him a lesson over some disagreement we apparently had in 2008 is so preposterous that I hope this Court sees the lie for which it truly is. Gattellari threatened my brother on a number of occasions, including outside Tuscany restaurant. My brother's dislike of Gattellari has been ongoing for many years. That is the reason Gattellari hated my brother.
Just on the point of Gattellari's methods of debt collecting, I have always used legal and proper means to shield my debts, owed to me or the companies connected with me. I've always sought to recover my debts through legitimate means. Gattellari's hangers-on can say what they like. His suggestion that I acquired a team of full-time standover men to collect my debts is simply laughable. Gattellari's evidence in these proceedings has highlighted how he misappropriated my funds for his own personal benefit. These lies are an example of Gattellari's criminal behaviour which he's now trying to attribute to me.
The same applies for the much greater lie that I had anything to do with the murder of Mr McGurk. There is no believable motive for me to want to have Mr McGurk killed or Mrs McGurk threatened. It is now apparent that Gattellari is the one with the motive and he's seeking to put me in, even though I'm innocent, to get his sentence reduced because on the evidence he's the one who organised the murder.
All payments, cash or otherwise, that have been spoken of here in court that were apparently handed to Mr Kaminic or Gattellari were legitimate payments involving company business and had absolutely no connection with Mr McGurk's death and you, your Honour, have heard totally different stories about such payments here in court. Gattellari plainly had fears that Mr McGurk was going to prove to me that Gattellari was a crook who was stealing from me big time and my ex-wife. Also wanted Gattellari out of our lives so there was complete dishonesty. I should have listened to both of them.
I have never asked Gattellari to have my ex-wife watched or followed at any time. Gattellari hated Odetta because she was too smart for him and told me that he was dishonest but at the time that had not registered with me. What I have heard, he confirms what I've read in many, many documents that have been subpoenaed and when he does not get his own way he tries to intimidate that person, tries to get something on them and finally resorts to violent threats and in the end just violence and gives himself an alibi in getting others to do his dirty work whilst he's out of the way or even out of the country.
I've had many legal disputes in my business history. It's par of the course and some of those disputes have been all over the media. I have never, in those circumstances, felt a shred of physical aggression towards anyone with whom I have dealt.
I now realise that Gattellari has told me and others so many lies, both in my personal life and business life. I've never met a man capable of telling so many lies and it is disturbing that I exposed him to my family, my daughter, my son, my brother and my ex-wife. The tragic consequences of being exposed to the McGurk family is something so dreadful to me to come to terms with. Gattellari told the police that he's a friend of mine. He was not my friend, he has stolen from me and my family, has exposed my family to great harm and I have to now realise he has manipulated many vulnerable people for his own ends. I am not the only one in this case who has been deceived by him. I now realise that Gattellari's entire world was propped up by my company's money. He dealt with much of these moneys without my knowledge, something that he has admitted in these proceedings. Gattellari has deceived so many people, good people, and his perception's difficult to unravel but it will be.
One thing that I do know is without question I'm not guilty of these charges and I will be vindicated. I will be vindicated no matter how long it takes, of that I'm certain. Thank you very much for letting me speak."
At that point the transcript reflects that the Magistrate posed a number of further questions to the accused. She asked him, in particular, whether he wished to give any evidence, to which he replied "no". She also asked him whether he wished to call any witnesses on his behalf. He again replied "no". The accused was then committed to stand trial.
Senior Counsel for the accused has submitted, in effect, that it is incumbent upon the Crown to tender the evidence of that statement in the Crown case. The Crown has indicated that it does not propose to do so. In that event Senior Counsel for the accused has indicated that he wishes to tender the evidence in his case. The Crown has objected to that tender. The competing positions of the parties give rise to a series of issues which I am required to address.
Before going any further, it is appropriate to make some general observations regarding the nature of the statement that was made by the accused.
Firstly, it was clearly a prepared statement. So much was confirmed by senior counsel for the accused who referred in the course of submissions to notes which had been prepared by (or for) the accused to assist him in making it. It is properly viewed as a statement was clearly planned and prepared well in advance.
Secondly, it will be evident the statement is generally, if not entirely, self-serving.
Thirdly, at least some of what the accused said in it, and perhaps even the majority of what he said, could not possibly be the subject of admissible sworn evidence.
Fourthly, in some respects the content of the statement touched upon matters which were specific to the committal. For example, there was a reference to evidence given by the witness Gattellari to the Independent Commission Against Corruption. I do not recall any similar reference in the evidence given in this trial. The statement also includes in quite specific terms, references to the evidence heard by the Magistrate in the committal proceedings. In light of these various matters senior counsel for the accused conceded, as I understood it, that if I were to conclude that the statement could be admitted, there would necessarily have to be at least some portions of it which were removed.
The principal submission of senior counsel for the accused was that the evidence was admissible having regard to s. 158 of the Criminal Procedure Act 1986 (NSW) ("the CPA"). That provision is in the following terms:
158 Transcript of statement in committal proceedings
A transcript of a record of a statement made by an accused person may, unless the court otherwise orders, be given in evidence at the trial of the accused person if it is proved on oath that the record is a true record of the statement made by the accused person and that the transcript is a correct transcript of the record.
That submission carried with it the suggestion that the Evidence Act 1995 (NSW) ("the Act") did not apply. That gave rise to the following exchange (commencing at T1608 L5):
"HIS HONOUR: The admissibility of this has to be determined, does it not, according to relevant provisions of the Evidence Act?
TERRACINI: Again, with respect, I wish I could help your Honour with that. I'm not entirely certain.
HIS HONOUR: The answer to that must be 'yes'.
TERRACINI: I'm not so sure, your Honour. Superficially one would think that your Honour is quite right but I can't find - and I have been involved in many cases involving these sorts of statements over many, many years and many, many times, and the absence of authority on precisely what the Court should or should not do, there are some members of your Honour's Bench who think that even a comment that wasn't on oath or subject to cross-examination should be given to juries and yet there doesn't appear to be any authority for that either."
At T1609 L8, Senior Counsel confirmed that it was his position that the statement was admissible, irrespective of any provision in the Act. I queried that position (at T1610 L14) and observed that it would be perverse to conclude that this was evidence, the admissibility of which was not subject to provisions of the Act. Senior counsel responded (in part):
"Well, your Honour, it is what it is and the provision is there. It hasn't been changed, it hasn't been updated or watered down and, most importantly, and we would submit this is a fairly compelling point, literally every day in that State somebody is committed for trial and it happens on every occasion and every accused is told exactly what this man was told. Now, if it was the intention of the legislator to change that, it can be changed at a whim in Parliament."
I observed at that point that it was perhaps not a matter of "changing" anything, but rather a matter of concluding that the provisions of the Act applied to this evidence, as they do to all other evidence in a criminal trial. Senior counsel responded by saying:
"Well, your Honour, what is said to the accused is that if he said something it will be used against or may be used against him in this trial. Now, that can't be any plainer."
At T1611 L4, and in an effort to have the accused's position made clear on this issue, the following exchange took place:
"HIS HONOUR: So you say, just so that I can understand your position, that the Criminal Procedure Act facilitates its admission and you say that its admissibility should be determined exclusive of any provision in the Evidence Act?
TERRACINI: I think that's right."
However, in submissions in reply, senior counsel appeared to step away from his earlier submission that the Act had no application. In particular, senior counsel said at T1624 L16:
"We accept that it must apply. What I can't put to your Honour is precisely how this fits into the legislative regime."
The rationale underpinning the proposition that the Act does not apply is to be found in submissions of senior counsel for the accused at T1609. When I pointed out at T1609 L33, that I perceived a difficulty with what was being put, senior counsel responded by saying:
"Well, it is not in the Evidence Act. It is as simple as that."
The reference by senior counsel to "it not (being) in the Evidence Act" was presumably meant to refer to the absence, in the Act, of a particular provision directed specifically to the admissibility of the accused's statement. There is no such provision but its absence is hardly surprising. The admissibility of evidence is not governed by reference to generically expressed classifications of evidence, such as "a statement made by an accused at the conclusion of his committal proceedings". The admissibility of evidence is governed by determining:
1. whether the evidence is relevant;
2. if so, whether any exclusionary rule(s) apply;
3. if so, whether the evidence falls within any exception to such rule(s);
4. if so, whether the evidence should nonetheless be excluded, either because the Act mandates it in particular circumstances (such as in s. 137), or permits its exclusion in the exercise of the Court's discretion (such as under s. 135).
In my view, the conclusion that the Act applies to the question of the admission of this evidence is incontrovertible. So much is clear from s. 4(1) of the Act which is in the following terms:
4 Courts and proceedings to which Act applies
(1) This Act applies to all proceedings in a NSW court, including proceedings that:
(a) relate to bail, subject to Division 4 of Part 3 of the Bail Act 2013 , or
(b) are interlocutory proceedings or proceedings of a similar kind, or
(c) are heard in chambers, or
(d) subject to subsection (2), relate to sentencing.
(2) …
(3) …
(4) …
Senior counsel submitted that if I came to the conclusion that the Act did apply, the evidence was admissible, subject to the Court's residual discretion to exclude it under s. 135. As its admissibility, and accepting that the evidence was of a hearsay nature, senior counsel submitted that it fell within s. 60 of the Act, which creates an exception to the hearsay rule in respect of evidence which is led for a non-hearsay purpose.
Senior counsel submitted that the nature and character of the statement made by the accused at the conclusion of his committal was, for all intents and purposes, no different to a statement made by an accused in immediate response to an allegation of the commission of a criminal offence being put to him by a police officer. Senior counsel submitted that there was no material difference between those two circumstances because in each of them an accused person is warned of the fact that he or she is not obliged to say anything unless they wish to do so.
In these respects senior counsel referred me to the decision of Grove J (with whom Barr and Latham JJ agreed) in R v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84. I will return to a consideration of that judgment in a moment but, in short, it was the position of senior counsel for the accused that it supported the admission of the evidence. Senior Counsel also submitted that this specific issue had been addressed in the course of a trial by Barr J some years ago, and that his Honour (absent the delivery of a formal judgment) had admitted such evidence.
Senior counsel further submitted that it was not open to draw any comparison between the statement made by the accused at the conclusion of his committal proceedings, and an unsworn (or "dock") statement of the kind abolished by the Parliament some years ago. He submitted that any attempt to draw an analogy between the two was inapposite, and stressed that the legislative provisions regarding a statement made by an accused at the conclusion of committal proceedings had been left largely untouched by the Parliament over a considerable period of time.
The Crown submitted that senior counsel's reliance on s. 158 of the CPA was misplaced and that the section did not of itself render the evidence admissible. The Crown submitted that s. 158 was facilitatory in nature, and that it could not possibly be the case that the section was intended to operate in a way which would render admissible, evidence which was otherwise wholly inadmissible. The Crown drew attention to the fact that the Parliament had seen fit to abolish unsworn statements a long time ago, and that there was no discernible difference between such a statement and the statement made by the accused at the conclusion of his committal. It was submitted in these circumstances that to conclude that the evidence was admissible simply by virtue of the operation of s. 158 would be to ignore what had been the expressed intention of the Parliament.
The Crown further submitted that, properly analysed and understood, the accused's statement was hearsay and did not fall within any of the exceptions to the hearsay rule. The Crown's ultimate position was that if I were to conclude that the evidence was admissible, I should nevertheless exclude it under s. 135(a) of the Act. In that regard, the Crown submitted that the admission of the evidence created significant unfair prejudice to the Crown due to the inability to test the assertions which were made in the course of it.
It will be apparent from what I have said that there are a number of legislative provisions which potentially bear upon the question of whether this evidence should be admitted. The statement of the accused came about as a consequence of the operation of s. 63 of the Criminal Procedure Act and regulation 3.3 of the Local Court Rules 2009 (NSW).
Section 63 is in the following terms:
63 Where prosecution evidence sufficient to satisfy jury
(1) If in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence, the Magistrate must give the accused person an opportunity to answer the charge and a warning in the form prescribed by the rules.
(2) The Magistrate must proceed to take any statement by or any evidence adduced by the accused person in accordance with Division 4.
(3) If the accused person is not present, the Magistrate may make a decision under section 64 without complying with subsection (2).
(4) If the accused person is a corporation and the corporation appears by a representative, the representative may answer the charge on behalf of the corporation.
Regulation 3.3 is in the following terms:
3.3 Warning where prosecution evidence sufficient to satisfy jury
For the purposes of section 63 (1) of the 1986 Act, the warning given by a Magistrate is to be in the following form:
"Before you say anything in answer to the charge, you should know that you do not have to say anything unless you want to. However, if you do say something, it may be recorded and used against you at your trial.
You should understand that, if a promise of favourable treatment has been made to you if you make admissions as to your guilt, that promise cannot be relied on. Similarly, you have nothing to fear from any threat that may have been made to you to persuade you to make any admission as to your guilt. However, even if you have received any such threat or promise, anything you say now may still be used against you at your trial.
Do you want to say anything in answer to the charge? Do you want to give any evidence in relation to the charge? Do you want to call any witnesses on your behalf?"
Section 158 is, as the Crown submitted, clearly a facilitative provision. It does not of itself operate to allow, much less mandate, the admission of the evidence. Indeed, the use of the word "may", as appears in the section, makes it clear that, at the very least, its admission is subject to the Court's discretion.
Accepting that the evidence is relevant, it is clearly of a hearsay nature. The fact that it is so is evident from the terms of the hearsay rule which appear in s. 59 of the Act as follows:
59 The hearsay rule - exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
Accepting that the accused's statement is hearsay, the next determination is whether it falls within an exception to the hearsay rule. In this regard senior counsel for the accused relied on s. 60 of the Act which is in the following terms:
60 Exception: evidence relevant for a non-hearsay purpose
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).
Note : Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen(1998) 195 CLR 594 .
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.
There is some prima facie support for the proposition that an exculpatory statement made by an accused, which is otherwise of a hearsay nature, falls within the ambit of section 60 of the Act: Rymer at [60] and [64] per Grove J. However in my view, the present circumstances are, factually speaking, fundamentally different to those considered by Grove J. In Rymer, what was at issue was whether exculpatory statements in the form of the accused's immediate denial of an allegation put to him by police, should be admitted into evidence. The trial judge had concluded that such evidence was only admissible in the event that the accused himself gave evidence and adopted the statement he had made. Grove J (with whom the other members of the Court agreed) concluded that in taking that position the trial judge had erred. Importantly, for present purposes, his Honour considered a number of authorities which have some bearing upon the determination that I have to make. Commencing at [36] his Honour said:
[36] The present case deals with statements which can be classified as wholly exculpatory. Such relevant doctrine as can be discerned can be traced to origins in the divorce proceedings of Queen Caroline (The Queen's Case 1820 2 Brod & Bing 286) where the advice of the House of Lords was that a statement of mixed matters, some self serving and some against interest, must be placed in whole before the tribunal of fact.
[37] The Crown Prosecutor accepted this rule in the case of "mixed" material but contended that, while admissions as statements against interest are admissible at common law (and s 81) based upon the rationale that such are generally truthful, the converse does not apply to self serving statements.
[38] That contention should be viewed in the light of the opinion of Kirby P in R v Astill (1992) 63 A Crim R 148 at 156 who, after citing Lord Wilberforce in Ratten v The Queen [1972] AC 378, when his Lordship referred to the distinction between the fact of words spoken and the question of hearsay arising, if such a fact is to be used testimonially, said:
'There is a further basis on which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving'.
This feature may then permit the reception of the evidence even over objection."
His Honour went on to make reference to the observations of Lord Wilberforce in Ratten where his Lordship said (at 389):
"The possibility of concoction or fabrication where it exists is, on the other hand, an entirely valid reason for exclusion and is probably the real test which judges in fact apply. In their Lordships' opinion, this should be recognised and applied directly as the relevant test: the test should not be the uncertain one, whether the making of the statement was in some sense part of the event or transaction… As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded."
His Honour also made reference to the judgment in Middleton v R (1998) 100 A Crim R 244, in which Ipp J (as his Honour then was) observed:
"There is a line of English authority to the effect that a self-serving statement is admissible to show the reaction of the accused at the time he made it: R v Pearce (1979) 69 Cr App R 365; R v McCarthy (1980) 71 Cr App R 142; R v Tooke (1990) 90 Cr App R 417."
In Pearce the Court formulated a number of principles governing the admissibility of evidence of this kind. The third of those principles was enunciated by the Lord Chief Justice in the following terms (at 370):
"Although in practice most statements are given in evidence, even when they are largely self-serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police with a view to it being made part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible."
Grove J's analysis of these (and other) authorities led his Honour to express the view (at [59]) that absent some particular reason not to do so, exculpatory evidence of the kind under consideration should be put before the Court by the prosecution. However, it is noteworthy that at [58], immediately before expressing that conclusion, his Honour said:
"A danger which would need to be guarded against would be that contemplated in Pearce, that an accused may bring forward a contrived hearsay case."
His Honour then continued (at [61]):
"It was submitted on behalf of the Crown that the appellant's argument involved restoration by a back door of the abolished entitlement of an accused to make an unsworn statement to the jury. That is not the case. The evidence would only be available to persons who responded to confrontation by denial. As I have just observed, there is a mechanism for rejection of contrived denial."
The term "contrived" is defined in the Concise Oxford Dictionary, amongst other things, as "planned, artificial and forced".
The statement made by the present accused at the conclusion of his committal hearing, unlike that of the accused in Rymer, was not in the nature of a spontaneous denial in made in response to being initially confronted with an allegation of murder. Rather, it was a prepared statement, in the nature of a contrived denial of the kind to which Grove J referred. The differing circumstances between Rymer and the present case are such that, in my view, there is no warrant to require the Crown to put the accused's statement before the jury.
At [22] above, I noted the reference by senior counsel for the accused to a decision by Barr J which, it was said, supported the admission of the evidence. Contrary to what was indicated, Barr J did publish a judgment: R v Wood [2008] NSWSC 30 October 2008, Barr J unreported. Moreover, that judgment does not support the admission of the evidence. At [13] and following, his Honour made reference to the decision of Grove J in Rymer. It is evident from what his Honour said at [14] that he did not have the benefit of a copy of the judgment before him when he gave his reasons for excluding the evidence. His Honour was clearly not made aware at the time that he was in fact one of the judges who had expressly agreed with Grove J.
In any event, and more significantly, having made reference to the evidence in Rymer his Honour said (at [15]):
"It is put by Mr Terracini that this is really a document of that kind. I do not think that it is. Mr Terracini is correct to submit that the document was not contrived, as the document would have been in the hypothetical state of affairs I had mentioned. Nevertheless, this is not a case in which it would be unfair to the accused for the jury not to know what the accused said to the magistrate. It would lead to no unfairness, in my view, not to put this material before the magistrate. The jury would not speculate if it did not hear the evidence. This was not part of any official investigation of the charge. None of the circumstances mentioned in Rymer applies in this case, to my mind. The conclusion I have reached is that what the accused said to the magistrate was no more than a self-serving exculpatory statement. Accordingly, I do not think that the evidence is admissible. I think that I was wrong to say that it was, and I do not propose to admit it."
His Honour's reasons as expressed in that paragraph fortify my view that the nature of the accused's statement in the present case is markedly different to the nature of the evidence in Rymer.
It is evident that his Honour's judgment was an ex tempore judgment delivered, I infer, with some haste in the course of an important trial. That is not meant in any way to be a criticism of his Honour. I am left to infer from the absence of any reference to the Act, that his Honour was not asked to consider the admissibility of the statement by reference to any statutory provision at all. Accordingly, the judgment does not assist in terms of the applicability of any of the provisions to which I have referred. However, it does support the fundamental distinction between evidence of the kind considered in Rymer and that which I am asked to consider (which was of a similar kind to that considered by his Honour in Wood). It might also be noted that following the sentence imposed by his Honour, the accused in Wood successfully appealed to the Court of Criminal Appeal: Wood v R [2012] NSWCCA 21. His Honour's decision to reject the admission of the accused's statement in that case does not appear to have been the subject of any ground of appeal.
Accepting the various distinctions between the present case and Rymer, and bearing in mind the stated position of senior counsel for the accused in the event that the Crown did not lead evidence of the statement, the provisions of s. 135 of the Act become relevant. Section 135 is in the following terms:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
As I have noted, senior counsel for the accused made it clear that in the event that I were to find that the Act applied, and that the statement was otherwise hearsay, he relied upon s. 60 to constitute an exception to the hearsay rule. Section 60 renders admissible hearsay evidence when it is led for a non-hearsay purpose. I am left to conclude that the non-hearsay purpose for which the evidence is sought to be led is to establish the fact that these things were said by the accused to the Magistrate, as distinct from the truth of anything which was said. Bearing that in mind, the probative value of the evidence is limited, particularly in light of the circumstances in which the statement was made, and its generally contrived nature.
There would, however, be a significant danger of unfair prejudice to the Crown if the evidence were admitted. Quite apart from any other consideration, the Crown would be precluded from testing any of the assertions made by the accused by cross-examination. The argumentative terms in which some of the statement was phrased would simply exacerbate that danger.
In all of those circumstances, the statement should be excluded under s. 135(a) of the Act.
[2]
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Decision last updated: 24 April 2018