R v TAI, Alatini

Beazley P (Garling J and Hidden AJ agreeing): The decision to exclude evidence pursuant to s 135(a) is a discretionary decision, such that it is necessary on an appeal to demonstrate error in accordance with the principles in House v The King. [32] House v The King (1936) 55 CLR 449; [1936] HCA 40 The Evidence Act 1995 (NSW), s 135(a) is concerned not with evidence which merely tends to establish the Crown case, but rather with evidence that gives rise to "unfair prejudice" in the sense that there is a real risk the evidence will be misused by the jury in some unfair way. [32] Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 In appropriate circumstances, and having regard to the evidence and witnesses available, the unavailability for cross-examination of the maker of prior representations admissible pursuant to the Evidence Act 1995 (NSW), s 65(2) may give rise to unfair prejudice substantially outweighing the probative value of those representations. [33]-[46]

Judgment

1. BEAZLEY P: This is an appeal brought by the Director of Public Prosecutions pursuant to the Criminal Appeal Act 1912 (NSW), s 5F(3A) against an interlocutory decision of Hanley SC DCJ in which his Honour determined that the probative value of certain hearsay evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondent, Alatini Tai. His Honour's ruling was made pursuant to the Evidence Act 1995 (NSW), s 135(a).
2. The respondent's application for the hearsay evidence to be excluded was made in response to the Crown's application pursuant to the Evidence Act, s 65 to adduce in evidence representations contained in two statements made to police on 21 August 2014, by William Ninnes, the victim of the alleged robbery with which the respondent is charged and who had since died.
3. The first of Mr Ninnes' statements was made to Senior Constable Clarke at approximately 2.30am on 21 August 2014 some three hours after the alleged robbery. Constable Clarke had attended in response to a triple-0 call made by Mr Ninnes' neighbour, Mrs McAndrews. The representations made by Mr Ninnes on that occasion were reduced to writing by Constable Clarke on 29 August 2014. This is the first of the two statements to which reference is made above. The second statement was made by way of an ERISP interview conducted by Detective Senior Constable Tillott commencing at about 4.30pm on 21 August 2014.
4. His Honour held that the representations were admissible pursuant to s 65(2), but in the exercise of his discretion excluded them pursuant to s 135(a).
5. There was no dispute that his Honour's ruling had the effect of substantially weakening the prosecution case, as required by the Criminal Appeal Act, s 5F(3A). Nor was it in dispute that the Crown was required to demonstrate that his Honour had erred in the exercise of his discretion in accordance with the principles of House v The King (1936) 55 CLR 449 at 504-505; [1936] HCA 40.

Brief overview of facts

1. The respondent was arraigned to stand trial in the District Court on 22 February 2016 on a charge of robbery pursuant to the Crimes Act 1900 (NSW), s 94. The victim of the alleged robbery was Mr Ninnes, aged 84 at the relevant time.
2. The Crown case against the respondent is that on the evening of 20 August 2014, Mr Ninnes had been playing poker machines at the Vegas Hotel at Mt Druitt and had won a substantial sum of money. There were other patrons at the hotel at the time, including the respondent and Chantelle Weribone.
3. Mr Ninnes left the hotel shortly after midnight to walk home. On the way, he stopped at a 7-Eleven store and purchased a can of drink and a packet of cigarettes. Once outside the store, a young woman, subsequently identified as Ms Weribone, approached Mr Ninnes and asked him for money. Mr Ninnes gave her $5. The respondent then walked up to Mr Ninnes, putting his hand on Mr Ninnes' shoulder and appeared to attempt to start a conversation with him. Mr Ninnes moved away from him, crossing over the railway footbridge into Beames Avenue, where Mr Ninnes lived, and commenced walking in the direction of his unit block.
4. The representations made by Mr Ninnes upon which the Crown intended to rely were contained in: 1. The statement taken by Senior Constable Clark at about 2.30 am on 21 August 2014, when, in company with Constable Grace, he attended at the unit block in response to a triple-0 call made by Mr Ninnes' neighbour, Ms McAndrew. Mr Ninnes had gone to Ms McAndrew's unit following the alleged robbery. 2. The ERISP statement taken by Detective Senior Constable Middleton, commencing at 4:37 pm on 21 August 2014. It appears the Crown will also seek to tender the statement in Constable Grace's notebook recorded whilst at Mrs McAndrew's unit.
5. The Crown case, based on those representations, is that the respondent followed Mr Ninnes along Beames Avenue, pushed him against a fence, and said "where's your money", and "give it to me or I'll kill you". When Mr Ninnes indicated that there was cash in his top pocket, the respondent took the money and left the scene on a pushbike. The respondent went back across the railway footbridge, where he and Ms Weribone left the area in a taxi.
6. The other evidence upon which the Crown proposes to rely at trial is as follows:

• A statement of Ms Weribone that she had been with the respondent on the night of 20/21 August 2014 at the Vegas Hotel and that after leaving the hotel, she had asked an elderly man for money and he had given her about $5 in change for a taxi. She said that, after she had been given the money, the respondent said "wait there". She said the respondent rode away on a bicycle and returned soon afterwards. She and the respondent then caught a taxi. The respondent paid the taxi fare.
• A statement from the manager of the Vegas Hotel, Jose Iglesias, who confirmed that Mr Ninnes had won a substantial sum that evening on the poker machines. Mr Iglesias said that the following week, he saw Mr Ninnes, who told him he had been robbed the previous week after leaving the hotel, "by two young males [and] that they had took all his winnings".
• The location of a grey coloured hoodie at the respondent's premises, as described by Mr Ninnes and having the same appearance as that depicted on CCTV footage of the respondent.
• Extensive CCTV footage from cameras located, respectively: 1. Inside the Vegas Hotel: showing the respondent in close proximity to Mr Ninnes on two occasions whilst he was sitting at a poker machine. In one frame, the respondent appears to shake Mr Ninnes' hand. 2. Outside the Vegas Hotel: showing the respondent smoking, and with a bicycle. The respondent is seen to leave the area at 12:17:14. 3. In Dawson Mall (in the vicinity of the 7-Eleven store): relevantly showing: 1. Mr Ninnes walking into the 7-Eleven store; 2. The respondent coming into view from the left of the screen with a bike and then going down a laneway next to the 7-Eleven store. 3. Mr Ninnes exiting the 7-Eleven store and Ms Weribone engaging with him. 4. The respondent (without a bike) approaching Mr Ninnes, and placing his hand on his shoulder. 5. The respondent going back to the lane. 6. The respondent and Ms Weribone heading towards the railway station. 1. Above the 7-Eleven store: relevantly showing, in addition to that shown in the footage from the camera located in Dawson Mall, Mr Ninnes appearing to give money to Ms Weribone. 2. A total of 11 cameras at the railway station: showing, in summary: 1. Mr Ninnes walking up the stairs of the railway station onto the footbridge past the ticket box, exiting onto, and walking along, Beames Avenue. 2. The respondent travelling the same route as Mr Ninnes, at different times either carrying or riding a bike, returning back along Beames Avenue in the direction of the railway station and getting into a taxi. 3. Ms Weribone walking up the stairs of the railway station, across the footbridge and returning in the opposite direction. 1. Camera 31 located on the railway platform: showing Mr Ninnes walking along Beames Avenue at 12:31:32 and the appearance of "indistinct shapes next to a fence" at 12:31:45. The footage is said to record that Mr Ninnes "does not continue walking along fence". The footage is then said to record that, at 12:32:30, the figure of Mr Ninnes "resumes walking".

1. In addition to the statements of Mr Ninnes, the Crown proposed to rely upon the transcript of the triple-0 call made by Mrs McAndrew in the early hours of 21 August 2014, when Mr Ninnes went to her unit shortly after the alleged robbery.
2. As a consequence of Mr Ninnes' death prior to the trial, it was necessary for the Crown to seek to adduce the representations made in the two statements in evidence pursuant to the Evidence Act, s 65 which permits the admission of hearsay evidence in criminal proceedings where the person who made the previous representation is not available to give evidence. Relevantly, it is a condition of admissibility under that section that the relevant representation "was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication": s 65(2)(b), or "was made in circumstances that make it highly probable that the representation is reliable": s 65(2)(c).

The course of the hearing of the s 65(2) and s 135 applications

1. The appellant was arraigned on 22 February 2016 to stand trial on the charge of robbery. The Crown served, in accordance with the Evidence Act, s 67, notice of its intention to rely upon the hearsay evidence contained in Mr Ninnes' statements. The respondent, in response to that application, sought an order that, even if his Honour was satisfied that the evidence was admissible pursuant to s 65, the evidence be excluded under s 135 or s 137.
2. The matter was listed on 22 and 23 February and 21 March 2016. On 22 February 2016, a voir dire examination was conducted of Detective Senior Constable Middleton who was in charge of the police investigation of the robbery. It was conceded during the course of the voir dire hearing that the person depicted on and with the bicycle in the CCTV footage was the respondent.
3. The matter was adjourned to the next day, 23 February 2016, with the prospect of the trial proceeding on that day if court time became available. When the matter was called on 23 February, the respondent's counsel informed the court that the Crown had, that morning, served a further statement of Mr Iglesias, the manager of the Vegas Hotel on the night of the robbery. Whilst Mr Iglesias' statement confirmed that Mr Ninnes had won money on the poker machines on the night in question, it also contained a different account, given by Mr Ninnes to Mr Iglesias, as to where the alleged robbery had taken place. His Honour adjourned the matter and the trial was subsequently set down for hearing on 21 March 2016.
4. In the intervening period, the NSW Police subpoenaed the records of the Department of Human Services. Information produced in response to that subpoena revealed that Mr Ninnes had been granted emergency funding of $1,192.80, which had been deposited into his Westpac bank account on 20 August 2014. Subsequent to this information, the respondent subpoenaed the bank records of Mr Ninnes, which revealed that as at 20 August 2014, the funds had not been received into Mr Ninnes' account.
5. On the morning of the resumed hearing on 21 March 2016, the transcript of the triple-0 call made by Mrs McAndrew in the early hours of 21 August 2014, and the transcript of a further triple-0 call, made by Mr Ninnes on 22 August 2014, were provided to the respondent's legal representatives. The transcripts had only been received by the Crown from the police the previous Friday. The Crown indicated that it only proposed to tender the transcript of the call made by Mrs McAndrew on 21 August 2014 and not the transcript of the triple-0 call made by Mr Ninnes on 22 August 2014. A short adjournment of about an hour was granted to the respondent to enable him to confer with his legal advisers about the newly provided material.
6. The content of the triple-0 call made by Mr Ninnes on 22 August 2014 took on some significance in his Honour's reasons, as is discussed below.

Submissions made to the trial judge

1. As recorded by his Honour, the respondent submitted that there was no independent verification or corroboration of the offence so that Mr Ninnes' version could not be tested in cross-examination. The respondent contended therefore that there was a risk of unfair prejudice because a jury would more readily accept Mr Ninnes' version and place improper weight upon it.
2. It was central to the respondent's argument that there were significant inconsistencies in Mr Ninnes' various accounts of what had occurred on the night of the alleged robbery. In particular, there were four significant variations regarding the precise location of the robbery. The respondent also drew his Honour's attention to Mr Ninnes' claim that he had been robbed two weeks previously, as a result of which Mr Ninnes had been granted emergency funding from the Department of Home Services, but in respect of which he had made no report to the police.
3. Another significant inconsistency upon which the respondent relied in his submissions to the primary judge was Mr Ninnes' contention that on the night of the alleged robbery he was carrying $1,000 of the monies paid to him by the Department of Human Services. However, that money had not reached his bank account as at 20 August 2015.
4. The respondent's submissions to his Honour also focussed upon the inadequacy of the police investigation. The respondent contended that as a consequence he was unfairly prejudiced within the meaning of s 135(a). In particular, the respondent pointed to the absence of a statement from Mrs McAndrews, who had made the initial triple-0 call to the police. Mr Ninnes in the second triple-0 call to the police stated that Mrs McAndrews was able to identify the robber. This was important on the respondent's submission to his Honour, because, had she been interviewed, Mrs McAndrews may have provided an alternative and thus exculpatory description of the robber that could be placed before the jury.
5. The respondent also complained of the failure of the police to do a "door knock investigation" to find any witnesses who heard Mr Ninnes "screaming" as he was being robbed, as he had claimed. If no such screams were heard, the respondent contended this would have provided further material to place before the jury to undermine Mr Ninnes' version of what happened to him.
6. Further complaint was made as to the failure to obtain a statement from the ticket seller on duty at the railway station. It was argued this was relevant in circumstances where Mr Ninnes was recorded on the CCTV footage as apparently waving to the ticket seller. It was submitted that the ticket seller may have provided information which might have assisted the respondent.
7. His Honour summarised the respondent's complaints relating to the inadequate investigation by the police as creating a danger that the evidence might be unfairly prejudicial within the meaning of s 135(a), as follows: "… the cross-examination of the officer-in-charge indicated the multitude of investigative avenues that should have been followed up, were not. The defence asked rhetorically how can the defence deal with issues for the cross-examination of other witnesses that could undermine the CCTV when the police have failed to investigate them and had the opportunity to do so."
8. The Crown acknowledged before his Honour that there were inconsistencies in Mr Ninnes' evidence, but submitted that there were other witnesses, such as the police and Mr Iglesias, who could be cross-examined so as to test the veracity and reliability of Mr Ninnes' statements.

Trial judge's reasons on the s 135(a) application

1. The trial judge determined that the statements made by Mr Ninnes were reliable and unlikely to be fabricated and hence admissible pursuant to the Evidence Act, s 65(2). However, his Honour determined that the statements ought to be excluded pursuant to s 135(a). That section provides: "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 …"
2. His Honour accepted that the evidence had significant probative value. However, his Honour considered that Mr Ninnes' version of the robbery was the only evidence of the robbery and was, therefore, "also very prejudicial to the accused".
3. His Honour was of the view that the inability to cross-examine Mr Ninnes denied to the jury the opportunity of assessing him as a witness and, in particular, to evaluate him in relation to any allegation that he had fabricated the claim of being robbed to assist in obtaining funds from the Department of Human Services. His Honour considered that whilst, if the case went to trial, it would be an appropriate case in which to give the jury a "Murray direction", the impact of any such direction would be "lost without the jury having the capacity to scrutinise this important witness giving evidence".
4. His Honour determined, therefore, to exclude the evidence pursuant to s 135(a). His reasons were as follows: "Here the cross-examination of the officer-in-charge indicated the multitude of investigative avenues that should have been followed up, were not. The defence asked rhetorically how can the defence deal with issues for the cross-examination of other witnesses that could undermine the CCTV when the police have failed to investigate them and had the opportunity to do so. … Prior to the evidence today, I can indicate I had come to the view that I thought the trial should be able to proceed on the basis that any prejudice to the accused could be dealt with by way of cross-examination. However, in the course of events that unfolded today, the fact that statements are still being taken and evidence still being produced as late as Friday and served on the accused this morning, and the fact that statements from witnesses that should have been taken were not taken, has placed the defendant in a position where he suffers a prejudice that is a real one. I am not satisfied that most matters concerning the complainant's unreliability or credibility could be explored by the defence at trial through other evidence. The opportunity available to the defence to test the reliability of the complainant's evidence with the evidence of other witnesses has been thwarted by the inadequacy of the police investigation. Accordingly, I am satisfied there is a real risk the jury will place greater weight on the untested evidence of the complainant, Mr Ninnes, and misuse the evidence that is unfair to the accused. In doing so, I have taken into account the evidence of Mr Ninnes, which must not be looked at in isolation. I have considered his evidence in the context of the whole of the Crown case and the material available to the defence that should have been available to assist them in arguing to a jury that they should have a reasonable doubt about the reliability and veracity of the allegation. I have considered the 'particular facts, the character of the evidence in issue and the nature and strength of the potential prejudice' (Fletcher v R unreported VIC VC 201505064; see also Webb v R [2012] NSWCCA 216). Despite the fact that the jury would have the benefit of directions, I am not satisfied this could overcome the actual, as opposed to potential prejudice, to the accused. This could possibly have been avoided if a basic investigation had been carried out. As it is, there was material still being obtained, as I have indicated, on the night of the first day that was the last time the case was before me, and even up to the provision of the triple-0 calls last Friday. Accordingly, I am satisfied the probative value of the evidence is substantially outweighed by the danger the evidence might be unfairly prejudicial to the accused and I will not allow the evidence of Mr Ninnes as contained in his statements to be adduced at the trial of the accused."

Consideration

1. As stated above, the decision to exclude evidence pursuant to s 135(a) is a discretionary decision, such that it is necessary for the Crown to demonstrate error in accordance with the principles in House v The King. The relevant legal test to be applied in exercising the discretion conferred by s 135 was explained in Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37 at [91]: "Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out: 'The prejudice to which each of [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.'" (footnote omitted)
2. The trial judge correctly stated the test to be applied in exercising the discretion under s 135(a), and the Crown did not contend otherwise. The real question for determination, as it emerged in the course of oral argument on the appeal, was whether his Honour took into account an irrelevant consideration in his determination, namely, that there had been an inadequate police investigation. The relevant portion of his Honour's reasons is set out above at [31]. It is necessary to analyse those reasons to ascertain whether his Honour, in fact, took into account an irrelevant consideration in the exercise of the discretion, or, rather, whether his reference to the matter said to be irrelevant was simply a means of explaining the circumstances that underlay the reason why there was a danger of unfair prejudice. The reference to those underlying circumstances did not involve his Honour taking into account an irrelevant consideration, as I next explain.
3. His Honour, in the passage reproduced above at [31], stated that on the evidence that he had heard prior to the adjourned hearing date of 21 March 2016, he had "thought the trial should be able to proceed on the basis that any prejudice to the accused could be dealt with by way of cross-examination".
4. The Crown placed some emphasis on this at the hearing of the s 5F(3A) application, contending that, in effect, his Honour had come to a final view on both the s 65(2) and s 135 issues, only to subsequently take into account irrelevant material. However, as his Honour stated, and as a review of the transcripts of 22 and 23 February and 21 March 2016 indicates, there had been a significant change in the evidence that was to be adduced from what had been presented as at 22 February 2016.
5. The additional evidence comprised Mr Iglesias' statement, the information from the Department of Human Services, Mr Ninnes' bank account records, and the transcripts of the triple-0 calls. His Honour's remark relating to statements still being taken is likely a reference to Mr Iglesias' statement and the reference to evidence still being produced as late as the morning of 21 March 2016 was clearly directed at the service of the transcripts of the triple-0 calls.
6. His Honour also referred to the fact that statements had not been taken "that should have been taken" and which had placed the respondent in a position where he suffered real prejudice. It was in that context that his Honour determined that he was not satisfied that the reliability or credibility of Mr Ninnes could be explored by the respondent through other evidence, that opportunity "[having] been thwarted by the inadequacy of the police investigation".
7. His Honour's reference to the inadequacy of the police investigation was, presumably, a reference to there being no statement from Mrs McAndrews, who was interviewed by the police and who, according to Mr Ninnes in the second triple-0 call, knew where "the robber lived but was scared to tell him"; no statement obtained from the neighbour, Yvonne, whom Mr Ninnes alleged, in the second triple-0 call, had also been robbed, in his belief, by the same person; and no statements from persons living in Beames Avenue in the vicinity of the alleged robbery.
8. The Crown submitted that his Honour's reference to the late service of material was an erroneous approach to the exercise of the s 135 discretion, as any prejudice could have been cured by an adjournment which the respondent had never sought. The respondent, for his part, submitted that his Honour's remark was an observation as to the manner in which matters had unfolded, particularly in respect of the late service of material. It was an integral aspect of this submission that the late service of material was not the basis upon which his Honour had found that there was a real risk that the jury would place greater weight on the untested evidence of Mr Ninnes and misuse that evidence in a way that might be unfair to the respondent.
9. His Honour's reasons, which were delivered ex tempore, are comprehensive. His Honour candidly set out what his thought process had been up until 21 March 2016, namely, that as the evidence stood before the hearing on that day, he had considered that any prejudice to the respondent could be dealt with by way of cross-examination of the available witnesses. His Honour then stated that there should have been material available to the defence to assist in arguing to the jury that they should have a reasonable doubt as to Mr Ninnes' reliability and credibility, and that any prejudice to the respondent could have been overcome had that material been available. His Honour again made reference to material still being obtained on the night before the hearing when it first commenced before him and the late provision of the transcripts of the two triple-0 calls.
10. His Honour's reasons must, of course, be read as a whole. Notwithstanding the Crown's focus on his Honour's reference to the late service of material, the real question for determination on this application is whether his Honour's references to the inadequacy of the police investigation and, in particular, the failure to obtain statements that his Honour considered should have been obtained, were no more than an explanation as to why, given the inconsistencies in Mr Ninnes' statements, cross-examination of the witnesses who were to be called would not be sufficient to cure any unfair prejudice to the respondent.
11. Although I was initially attracted to the view that his Honour had taken into account an irrelevant consideration, I have concluded that is not so. Rather, it seems to me that, read fairly, the real purport of his Honour's reasoning was this. On the case initially presented by the Crown, the only apparent inconsistency of note related to where the robbery occurred. Senior Police Constable Clarke, in the statement taken about three hours after the robbery but committed to writing a week later, recorded that the robbery occurred "near the 7-11 store" whereas in the subsequent ERISP, Mr Ninnes stated that it occurred on Beames Avenue, some distance from the railway station.
12. However, following the service of the statement of Mr Iglesias on the morning of 23 February 2016, and the service of the transcripts of the two triple-0 calls, the proposed evidence, taken as a whole, raised a real question as to Mr Ninnes' reliability and credibility which could not be tested in circumstances where the only witnesses available for cross-examination were the police officers and Mr Iglesias.
13. It is true that the unavailability of other witnesses, in particular, Mrs McAndrews, and perhaps also the neighbour Yvonne, appears to have been because of the manner in which the police had conducted the investigation. However, I consider that it was the fact that cross-examination of the witnesses who were available would not enable the respondent to adequately challenge Mr Ninnes' reliability or credibility that formed the basis of his Honour's reasoning. Without people such as Mrs McAndrews being available, it was open to his Honour to conclude that the probative value of the evidence to be presented by the Crown was substantially outweighed by the danger that the evidence of Mr Ninnes' statements would be unfairly prejudicial to the respondent.
14. Put another way, I consider that his Honour was, in effect, testing whether there was a danger of unfair prejudice to the respondent by reference to the witnesses available to be cross-examined, in circumstances where there could have been other witnesses made available, having regard to the information emerging from the additional material that had become available by the morning of 21 March 2016.
15. I am satisfied that his Honour's decision to exclude Mr Ninnes' statements was not because the investigation was inadequate per se, but because it was apparent from the material before his Honour that cross-examination of the available witnesses would not allow the respondent to properly investigate Mr Ninnes' reliability and credibility.
16. Accordingly, I would dismiss the Crown appeal.
17. GARLING J: The President has persuasively demonstrated in her reasons for judgment, with which I entirely agree, that the Crown has not demonstrated any error in the exercise by Hanley SC DCJ of his discretion to exclude evidence under s 135 of the Evidence Act 1995.
18. I would wish to add that I am satisfied that the decision made by Hanley SC DCJ was the correct one. The course of the trial proposed by the Crown was one which gave the respondent very limited opportunities to test the Crown's case against him. In light of that proposed course, the tender of the victim's version of events through other witnesses, in circumstances where the victim could not be cross-examined, was demonstrably unfairly prejudicial to the respondent.
19. I agree that the Crown's appeal ought to be dismissed.
20. HIDDEN AJ: I also agree with the President.

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: 28 September 2016