R v Warwick

Supreme Court of NSW|2018-08-09|Before: Garling J

EX TEMPORE Judgment (T.1421)

The witness, Mark Christopher Gore, is presently giving evidence. Objection has been taken to an answer he has given and to further questions dealing with a similar subject matter. The Crown presses the evidence and the subject matter.

Background

Mr Gore was a member of C Platoon at the Liverpool Fire Station in 1985 at a time when the Accused was also stationed at the Liverpool Fire Station and was part of the same platoon.
The evidence is that the members of each platoon would be on duty at the fire station at the same time. It is the evidence of Mr Gore that from time to time, in the course of his work with the Accused, he would regularly see the Accused at the fire station and have discussions with him.
The oral evidence to date is that, at a time prior to July 1985, when a bomb exploded at the Kingdom Hall at Casula, Mr Gore noticed a change in the Accused and his attitude to him. His evidence is that he noticed that the Accused was becoming more antagonistic towards him and to his beliefs. Mr Gore was, at the time of the Kingdom Hall bombing, studying to become a member of the Jehovah's Witness faith, but had not yet been baptised into that faith.
The specific question and answer to which objection was taken is as follows: "Q. And what happened, or what did you observe that you say was a 'change'? A. Well, I would be talking to other firemen in the watch room or in the mess room and I would get a violent response from Len, as he walked in on us talking and he'd be critical of me, of my religion, when we weren't talking nothing about religion either, but he'd be straight into it and abuse me and the other party would end up walking out because he couldn't take the attitude and the violent abusive nature of Lenny as he came in."

Crown Submissions

The Crown accepts that if this answer is the entirety of the evidence which Mr Gore gives in respect to his contact with the Accused, then, by reason of its form, it would not be admissible. However, the Crown submits that, given that it was the first question and answer in a series of questions and answers, which questions were designed to elicit a more specific response from the witness in admissible form, then this answer ought be allowed to stand.
The Crown, when asked about what was anticipated to be the nature of the evidence that would be given, drew attention to paragraphs 20 and 21 of the statement of Mr Gore of 21 November 2014, in which, at a time relevant to the Kingdom Hall bombing, it was said that the Accused said things that were disparaging about members of the Jehovah's Witness faith. On one occasion, in the course of a discussion in the weeks or months before the Kingdom Hall bombing, the Accused according to Mr Gore's statement is said to have spoken to Mr Gore using words to the following effect, "your mob should be blown up" or "your mob needs a bomb put under them". Mr Gore, in his statement, records that he did not take this comment to be a threat and thought that the Accused was trying to get a reaction out of him.

Submissions of the Accused

Mr Gore has given an earlier statement, to which the solicitor for the Accused has drawn attention, being a Record of Interview dated 11 August 1985. It is submitted, on behalf of the Accused, that the specific words to which I have just referred, or words to that effect, were not mentioned in 1985 and represent an embellishment by the witness of the evidence which he can give.
Further, it is submitted, by reference to a Police running sheet, which records an interview between five members of staff at the Liverpool Fire Station, who were members of C Platoon, that their interpretation of the interactions between Mr Gore and the Accused was that they were, in effect, nothing more than discussions between workmates in which, somewhat convivially, workmates would attempt to "stir" each other up.
The submission is put that the content of the exchanges which either have been given or which are likely to be given, and the context in which those exchanges occurred, are such as would indicate that they are irrelevant to any issue in the proceedings, or else are of so little weight as would not merit their admission.

Discernment

It seems to me that the appropriate approach to this evidence is to first ask the question, having regard to its timing and the content of the conversations between Mr Gore and the Accused, whether that content may be relevant to the issues in the proceedings. This is the threshold question for all evidence: IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [38] (French CJ, Kiefel, Bell and Keane JJ).
The Crown submits that, having regard to the timing of the remark, the content of what was said is relevant as it discloses an attitude of the Accused to members of the Jehovah's Witness faith in circumstances where the bombing took place within a few weeks or perhaps a few months after these remarks.
In my view, an attitude by an accused to members of a group which is targeted or who become the victims of a crime, can be relevant to the issue of whether an accused committed a particular crime. It is not necessarily of itself sufficient, but it is one fact to which the Court could have regard. Equally, an expression by an accused to the opposite effect of that which is intended to be led by the Crown would be relevant as an exculpatory fact.
I commence then with the proposition that the evidence is relevant, and is therefore prima facie admissible: Evidence Act 1995, s 56.
The next submission of the Accused, that the context of the discussions was one of conviviality and "stirring" between workmates, is a matter which, if established, would go to the weight to be attributed to the evidence.
On the one hand, if it was said that the context was a serious one and the voice and demeanour of the person speaking the words was observed to be one of seriousness, then greater weight could be attributed to the words than if the evidence suggested that it was an obvious attempt by the speaker of the words, here alleged to be the Accused, to stir up a work mate and was made with an obvious tongue in cheek approach. The determination of the weight to be accorded to these facts is, however, a matter which would need to await further evidence, whether in chief, or by cross‑examination or otherwise.
I am not persuaded that these statements are without any weight, or else, putting it differently, are not capable of carrying any weight. In that circumstance, it seems to me that the evidence is admissible and capable of carrying weight. The ultimate determination will need to depend upon a range of other evidence.
Another objection which was taken to the answer which I have quoted earlier was that it went further than the contents of the Record of Interview and statement to which I have referred. It can be said that, in one respect, the use of the words "violent" and "abusive" in the answer are not words that are used in either of the earlier documents to which reference has been made. On the other hand, there is an available argument that those words are no more than descriptive of the interchanges of which this witness, so far as the Crown understands it, is intending to give evidence.
I do not think that the use of such qualifying words is so far from the substance of what is contained in the Record of Interview or the statement as would lead to the conclusion that it is evidence of a different kind or evidence of a kind which was not broadly within that which has been supplied. It is not inadmissible on this basis.
Next, it is always necessary in considering the admissibility of evidence of this kind to ask whether it is of a sufficient probative value so as to outweigh the unfair prejudice to the Accused.
In my view, having regard to the fact that the evidence so far, and that which is anticipated, will broadly follow what has been set out in documents contained within the Crown Brief and in respect of which, as the content of the running sheet in Exhibit TL (dated 15 August 1985) shows, there is material available to enable a thorough testing of this witness' evidence.
I cannot see that there is any unfair prejudice and I am satisfied that, pursuant to the balancing exercise contained in s 137 of the Evidence Act, the probative effect substantially outweighs any resultant unfair prejudice.
Finally, that brings me to consider the form of the answer. The admissibility of this answer to which I have earlier referred must necessarily depend upon any further questions and answers that are to be given with respect to the content of it. Whilst I am not prepared at this stage to strike it out, it may be that when the Crown completes its examination of the evidence on this subject matter and the context and surrounding facts are available, the question of whether or not this answer should remain as an admitted part of the evidence can be reviewed in the event that the Accused still seeks to have it excluded as inadmissible material.
In summary, my ruling is that I will not strike out the identified answer at the moment and I will allow the Crown to lead evidence on subject matters described in the course of submissions.

Amendments 31 August 2018 - Addition of transcript reference. 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: 31 August 2018

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Judgment (6 paragraphs)

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