Regina v Lawrence Holt

The alleged tendency evidence: relevant principles 9 The fundamental principles are now settled by various provisions of the Evidence Act 1995 (NSW), ("the Evidence Act"). Certain of those provisions require the giving by a party intending to adduce tendency evidence of prescribed notice of the proposed evidence. In the present case no issue as to notice arises. 10 The basic rule, as now relevant, is defined as follows by section 97(1) (b) of the Evidence Act: "Evidence of …………… a tendency that a person has or had is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) ……………; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. ……………………" 11 A statutory gloss upon this basic rule is provided, relevantly and as follows, by section 101(2) of the Evidence Act: "……………….. (2) Tendency evidence about a defendant, ………………., that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. ………………… " 12 The expression "probative value", appearing in various sections of the Evidence Act, has a particular meaning that is defined as follows in the Dictionary attached to the Evidence Act: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 13 How these statutory provisions are to be applied in a particular case is not simplified by the current state of curial discussion and of curial decision. Put simply, there is current a tension between the approach of the common law to the admission of similar fact evidence; and the approach to the interpretation and application of the statutory scheme respecting tendency evidence. The judgment of Hulme J in Reg v Vinh Le (2000) NSW CCA 49 contains at paragraphs 107-118 inclusive a convenient exploration of the nature of that tension. 14 I see no present utility in adding to that conceptual controversy. While the decision of the Court of Criminal Appeal in The Queen v A.H. (1997) 42 NSWLR 702 remains unreversed, as it currently does, I consider that I should be guided by it. I propose, therefore, to take the approach of Ireland J, (Hunt CJ at CL and Levine J concurring), in that case. That approach is expressed relevantly as follows: "Section 97 requires the Crown to establish that the evidence has significant probative value. That means that its degree of relevance to the events giving rise to the offence charged is important or of consequence: R v Lockyer (1996) 89 A Crim R 457 at 459; R v Lock (1997) A Crim R 356. In both Harriman v The Queen (1989) 167 CLR 590 at 597-599 and S v The Queen (1989) 168 CLR 266 at 275, Dawson J has said that evidence of guilty passion, although evidence of propensity (or tendency as the Evidence Act calls it), has a sufficiently high degree of relevance as to justify its admission: see also B v The Queen (at 618), per Dawson J and Gaudron J. If the conduct in question is not remote from the time of the alleged offence, the Crown should usually have little difficulty in establishing that the evidence has importance in establishing the guilt of the accused, and thus that is of significant probative value. Section 101(2) requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The prejudicial effect of tendency evidence is that the ordinary person thinks that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises will yield to that tendency and so conduct himself in the circumstances of the particular case: Pfennig v The Queen (at 488). As such evidence is circumstantial in nature, the Crown must establish that there is no reasonable view of the evidence available which is consistent with the innocence of the accused: Pfenning (at 483-484, 485). That is what is required by s 101(2): R v Lock (at 363); R v Foley (Court of Criminal Appeal, 5 June 1996, unreported) at 8" (42 NSWLR at 709B-E)

The alleged tendency evidence: particular rulings 15 The first ruling concerns evidence which the Crown proposes to lead from a Mr. John Waters. Mr. Waters made a statement on 6 September 1999. In it he describes an incident which he dates at about 6 September 1998. Mr. Waters recalls having been at the Matthew Talbot Hostel for Homeless Men. He was playing cards. The accused, who was also at the hostel on the particular occasion, walked past Mr. Waters and "threw a punch" at him. The punch is said by Mr. Waters to have "glanced the side of ………..(his) ………..cheek". Mr. Waters says that he called to the accused: "Is that the best you can do Lawrence?", and that the accused simply continued walking and left the hostel. Mr. Waters says that he cannot think of any reason why the accused hit him. He says that he and the accused had not had any past conversations or arguments that might explain the blow. Mr. Waters says, at paragraph 8 of his statement: "Lawrence Holt has a reputation of going off and hitting people in the Matthew Talbot Hostel. I try to stay away from him or avoid him if I can. I have heard that Lawrence has assaulted other people but I have never seen him assault anyone. I do not hold anything against Lawrence Holt for this assault." 16 Mr. Waters gave evidence at the committal proceedings, but his evidence was very brief and did not touch upon the incident that I have described by reference to his statement. 17 The fact in issue for the purpose of assessing the probative value of this material is the fact, alleged by the Crown, that it was the accused who struck with a metal bar fatal blows to the head of the deceased. The extent to which the proposed evidence of Mr. Waters could rationally affect the assessment of the probability of the existence of that fact in issue is, in my opinion, so slight that it could not fairly be said that the proposed evidence has significant probative value. 18 The proposed evidence is ruled inadmissible. 19 The second ruling concerns evidence proposed to be led by the Crown from a Mr. Kevin George. Mr. George made a statement on 16 August 1999. The substance of what Mr. George can say is set out in paragraph 18 of his statement, and as follows: "I have never witnessed any arguments between Ron, the man who was killed and any other person who used to sleep on the dirt near him. I was told by Peter Ngatai that Ron and Lawrence Holt did have words. Peter Ngatai told me that Ron used to call Lawrence 'Bludger' and words like that. Peter also told me that Ron had told Lawrence Holt to get rid of his steel bar. I think Peter told me Ron had actually thrown the steel bar that Lawrence had over the fence. I did see Lawrence Holt in the dirt area that they slept in at the Domain Car Park. It was about one or two months before Ron was killed when I saw Lawrence Holt swinging a steel bar which he was holding in his hands. He was swinging the bar from side to side and up and down. The bar he was swinging was about 3 to 4 foot long but I can't remember whether or not it was hollow in the middle. When I saw Lawrence swinging the bar it was about 9.15 pm and Lawrence was facing the street at the time. At the time he was swinging the bar there were a couple of men or bodies asleep in the dirt area about 10 feet from him. He was not talking when he was swinging the bar. That was the only time I saw Lawrence with the iron bar apart from the time when he chased Peter Hay with it on the 22 June, 1999, which was a Tuesday." 20 The incident of which Mr. George speaks concerning Peter Hay was the subject of a number of discrete voir dire hearings in connection with the evidence of a number of witnesses to that particular incident. It is convenient, therefore, to leave aside for the moment that aspect of Mr. George's evidence, and to deal with that aspect later and in connection with the other relevant voir dire rulings. 21 So far as concerns the incident which Mr. George dates at a time about one or two months prior to 20 June 1999, Mr. George gave at the committal some further evidence about that particular incident. It is clear from the transcript of the committal proceedings that Mr. George was asked, both in examination-in-chief and in cross-examination, to give a demonstration of the movements that he says he saw the accused making with an iron bar. The transcript as it stands does not seem to me to give a reliable picture of quite what it was that Mr. George was trying to describe. His demonstration suggested at one point that the movements made by the accused were in the nature of figure 8 movements; but Mr. George also gave a description of movements from side to side. It is, I think, significant that Mr. George said, at the very end of his cross-examination that, so far as he could judge, the movements which the accused was making, whatever else might be said about them, did not appear to be in any way threatening to some homeless men who were, at the time, in the sand pit area at the northern end of the car park. 22 The evidence of Mr. George, taken at its highest in favour of the Crown, undoubtedly establishes that the accused had access, at a time a month or two prior to the date of the killing of Mr. Cross, to an iron bar; and that he had such access at a time when he was in the vicinity of the place at which Mr. Cross was beaten to death. The available evidence does not seem to me to establish anything beyond those bare facts. 23 That being so, it seems to me that the relevant probative value of the evidence is slight at best. The obvious risk of prejudice to the accused from any evidence that puts him anywhere near the Domain Car Park while holding an iron bar is such as to require that the proposed evidence have a correspondingly distinct and significant probative value. I do not think it does. 24 The ruling is that the evidence of Mr. George, (but excepting for the moment his evidence concerning the Peter Hay incident), is inadmissible. 25 The third ruling concerns evidence that the Crown proposes to lead from a Mr. Paul Rameka. Mr. Rameka made a statement on 6 September 1999. The essence of the evidence which it is proposed to lead from Mr. Rameka is contained in paragraphs 6, 7 and 11 of that statement. Those paragraphs read: "6. I have seen Lawrence have a go, punch and make threatening gestures at people in the Matthew Talbot Hostel. He would stand over people in the queue and niggle them, he seemed to get worse over the past three years. I don't remember any names of people Lawrence hassled but it would generally be older people or people who were not likely to have a go back at him. 7. Over a year ago I was in the foyer of Matthew Talbot Hostel with Mick Fogarty and John, it was a while back, I can't remember if anyone else was with me. I saw a young bloke named Grant walk into the Talbot with blood over his face. Grant said 'Lawrie just hit me'. I looked out the glass doors of the foyer and saw Lawrence Holt walking down the lane. After this incident Lawrence Holt was barred from the Talbot for about three weeks. Before this incident I often saw Lawrence and Grant drinking together in the lane outside the Talbot. I didn't see Grant after this incident. I have been told he was sent to gaol and died while he was there. ………………………………………………………………………………… ………………………………………………………………………………… 11. During my stay in the Domain Car Park at the beginning of June 1999, I remember seeing Lawrence Holt walking around the car park in the middle of the night. He would walk around and stare at people while they were sleeping. He would walk up and down the car park talking to himself. He carried a big carry-bag over his shoulder and a smaller bag. He always wore army greens." 26 Mr. Rameka gave some brief evidence-in-chief at the committal proceedings. He was not cross-examined. His brief evidence-in-chief adds nothing to what is said in paragraphs 6, 7 and 11 of his statement, except that in connection with what he describes in paragraph 11 of his statement he gave this evidence: "Q. What was he doing? A. Late at night, just walking around, being himself I think." 27 The whole of this evidence taken at its highest in favour of the Crown seems to me to establish that the accused was manifesting, at or about the beginning of June 1999, what might be described as odd behaviour; that is to say, the behaviour described by Mr. Rameka in paragraph 11 of his statement. There is, however, nothing in either paragraph 11 itself or in the very brief supplementary evidence-in-chief at the committal proceedings, to suggest that such odd behaviour was threatening, still less that it was murderous. The evidence, taken at that same high point, is capable of establishing that at unparticularised times falling within a span of one to three years prior to September 1999, the accused got into a fight of some kind, in circumstances wholly unexplained; and that he was capable, at least from time to time, of behaving in a way that was seen by Mr. Rameka as aggressive and bullying. 28 In my opinion, this material does not have in the requisite statutory sense significant probative value in connection with the relevant fact in issue. 29 The ruling is, therefore, that this evidence is inadmissible. 30 The fourth ruling concerns evidence which the Crown proposes to lead from a Mr. Daniel Burke, who was at all material times a welfare support worker employed at the Matthew Talbot Hostel. Mr. Burke has made a statement dated 12 January 2000. By reason of the nature of his work at the hostel he was well acquainted with the accused. The relevant portions of the statement are as follows: "5. On Saturday 19 June 1999 I was working a morning shift at the Matthew Talbot Hostel. About 7.20 a.m I was in the dining room. ………….. 6. I saw Lawrence Holt sitting alone at one of the tables eating his breakfast. ………………… I noticed Lawrence because he is one of the patrons whom I keep an eye on as he is prone to very severe mood swings. Often if the staff asked him to leave the hostel on closing time he would become angry and push a chair around, although he would never say anything. Lawrence was very unpredictable as a lot of the times he would just get up and go quietly, while other times he would get angry. I have known Lawrence for about three and a half years. I have tried to talk to him plenty of times but he would rarely talk. He would usually just nod his head and walk away. ………………………………………………………….. 8. On Sunday 20 June 1999 I was working a morning shift at the hostel. About 7.40 a.m. I was in the dining room area again and I saw Lawrence Holt sitting at a table eating his breakfast. He was on his own again, ………….. Lawrence seemed very agitated to me on that day because after he had eaten his breakfast he walked over to the television section, which is adjacent to the dining room, and he pushed a couple of chairs out of his way. I remarked to my colleague……………. who was standing with me, 'Lawrence Holt is very angry today'. I stayed in the dining room until about 7.50 a.m. ……………. I can't recall seeing Lawrence again on this day and I don't think he came in for lunch.. ……………………………………………………………………………….. 10. During the time I have known Lawrence I have seem him talk to the other blokes only about two or three times. He was a real loner………………" 31 Mr. Burke, too, gave evidence at the committal proceedings. It is sufficient for present purposes to say that his evidence does not seem to me to alter the effect, at the highest point in favour of the Crown, of what Mr. Burke had to say in those extracts which I have quoted from his statement. 32 In assessing for present purposes the evidence of Mr. Burke, it is necessary to recall yet again that the relevant fact in issue does not concern a dispute about whether the accused struck the fatal blow or blows with this or that particular intent, or in circumstances relevant to issues of diminished responsibility or of provocation or of self-defence. The relevant fact in issue is whether the accused struck the fatal blows at all. I have not been persuaded that the evidence which the Crown proposes to lead from Mr. Burke has significant probative value in connection with that particular disputed fact. My reasoning in connection with the proposed evidence from Mr. Rameka is, at least broadly speaking, applicable also in the case of the proposed evidence of Mr. Burke. 33 The ruling is, therefore, that this evidence is inadmissible. 34 The fifth, sixth and seventh rulings have to do with the incident upon which I touched briefly in connection with the second ruling. The present three rulings concern an incident that occurred on 22 June 1999, that is to say two days after the killing of Mr. Cross. The incident gave rise to the preferring against the accused of a charge of common assault. On 16 July 1999 the accused, being then legally represented, pleaded guilty to the charge. The prosecution tendered in connection with that plea and by consent a facts sheet which stated as follows the relevant facts: "On Tuesday 22 June, 1999 the victim, Peter Hay was sitting in the dining room of the Matthew Talbot Hostel. The defendant then walked out of the Matthew Talbot and walked towards the Domain. The victim followed him. The defendant has walked to the Domain Car Park off Sir John Young Cres, Woolloomooloo. The defendant was seen by witnesses, Patrick Wilson and William Watson, to go to a power box on the side of the building and to pick up a iron bar approximately 18 inches long. The defendant has approached the victim and when he was approximately 1 metre from the victim, he has swung the iron bar towards the head of the victim. The bar has narrowly missed the victim's head. The victim has then ran from the defendant, across Sir John Young Cres. The defendant has chased the victim with the iron bar still in his hand. The defendant has again swung the iron bar towards the victim. Whilst attempting to escape from the defendant the victim has collided with the side of another vehicle, only described as red in colour, which was also stopping at the Traffic lights. The victim and witnesses have then run to Woolloomooloo Police Station and informed police. The defendant was last seen walking from the Domain towards the city." 35 The accused, through his then solicitor, put the following submission to the Court: "Your Worship, Mr. Holt accepts the facts, and says that basically the explanation for the action is that Mr. Hay had in fact had words with him at the hostel, and said things to him that upset him, and it was as a result of that. He accepts that that's not a legal justification for it, but I ask your Worship to accept that explanation. It was something that was perhaps a bit of heat of the moment." 36 The accused had spent, by 16 July 1999, some three weeks in custody. He was placed on a good behaviour bond conditioned, among other ways, in a way that was intended to keep him, so to speak, at arm's length from the victim and the prosecution witnesses. 37 The evidence now under consideration establishes clearly that the accused, on his own admission, had been capable on 22 June 1999 of attempting to assault with an iron bar a person who had, in some way or other, inflamed him. The incident is one of ugly and persistent aggression on the part of the accused. It takes no great perception to understand at once the prejudicial effect that such evidence would have upon any tribunal of fact asked to entertain the Crown case that the accused had, a bare two days earlier, done much the same thing, but with consequences that had then been fatal to the particular victim. 38 Yet again, it is important to keep carefully in mind that the relevant fact in issue which defines the standing of the challenged evidence in terms of the requirements of sections 97 and 101 of the Evidence Act, is the issue whether the accused struck at all the fatal blow or blows. It is, plainly, impermissible to answer that question by a process of a priori reasoning that takes as its starting point the proposition that the accused is in fact guilty of the crime now charged against him, and that then bolsters that proposition by pointing to an incident occurring two days later. 39 It seems to me that the more one considers the rational relationship between the incident of 22 June 1999 and the proposition that the accused struck the fatal blows that caused the death, two days earlier, of Mr. Cross, the more it becomes apparent that any such relationship is superficially attractive rather than rationally persuasive. There is no evidence which is capable, if accepted at its high point in favour of the Crown, of establishing that the bar brandished by the accused on 22 June was the murder weapon used two days earlier. The available evidence is, indeed, wholly to the contrary. Nor is there any evidence that, at a time which is in a real and practical sense proximate to the time of Mr. Cross' death, he had said or done something to the accused of which it might reasonably be supposed that the result had been the same kind of inflamed reaction as the accused admittedly manifested on 22 June. 40 In all of those circumstances, I do not think that the challenged evidence satisfies the tests established by sections 97 and 101 of the Evidence Act. 41 The ruling is, therefore, that the whole of the evidence which was the subject of the fifth, sixth and seventh voir dire hearings is inadmissible. 42 The eighth ruling concerns evidence which the Crown proposes to lead from a Mr. Kenneth Blackman. Mr. Blackman made a statement on 26 August 1999. His evidence is that on 13 August 1999 he was performing voluntary welfare work at Edward Eager Lodge in Darlinghurst. He was cleaning a particular room that had just been vacated by the accused who had been the sole occupant of the room for the preceding three weeks, that is to say from about mid-July 1999. Mr. Blackman's statement continues: "While cleaning the room, ……………….. I found a steel bar with red electrical tape wrapped around one end of it, which was on the floor next to the bed. I also found a piece of wire bent into a loop with a blue disposable razor handle attached to one end. This item was found in the cupboard. Also on the top of the cupboard I found ten pieces of paper with handwriting on them." 43 It seems to me that the only part of this material which can have any possible present relevance is the part which describes the finding of the particular steel bar which was on the floor next to the bed. 44 The bar was, plainly, not the murder weapon. The evidence does not seem to me to establish that it had any striking similarity to the murder weapon. There is no evidence capable of establishing when, or why, or in what particular circumstances, the bar came to be in the room. It does not appear from the available evidence that any attempt was made to fingerprint the bar. 45 I have not been persuaded that Mr. Blackman's evidence has about it the requisite significant probative value. 46 The ruling is, therefore, that this evidence is inadmissible. 47 The ninth and tenth rulings concern evidence from two police officers of an incident, involving the accused, that occurred on 19 September 1999 in East Sydney. 48 The police officers arrested the accused with some difficulty and in connection with, put simply, the accused's apparently having caused malicious damage to a motor vehicle, he having used for the purpose a rock and/or a tree branch. The thrust of the evidence of the police officers can be taken sufficiently from the following extracts from the statement of Constable Collins. "8. At the station, I continued to make further inquiries as I had formed the opinion that the Defendant was mentally unstable and was a danger to members of the public. His attitude and demeanour when I arrested him led me to believe that he was extremely hostile and violent, as the attack on the victim and his car was unprovoked, unsolicited and could have easily resulted in serious injuries to the victim. 9. After speaking to the supervisor, I decided to take the Defendant to Caritas Psychiatric Hospital under a schedule. When we arrived at Caritas, I said, "Why did you throw the rock at the car?" He said, "Because I was angry." I said, "But you almost killed the guy." He yelled out, "I was angry". Along with Constable Davis, I took the Defendant into the hospital and had a conversation with staff there. I then waited around while the on call Doctor assessed the Defendant. 10. After speaking to the Defendant for a while, the Doctor came out and spoke to me. They declined to admit the Defendant stating that his behaviour was based on a personality disorder which was inflamed by the abuse of alcohol and drugs. 11. The Defendant was then removed from the premises and released from custody. Despite the Doctor's assessment of the POI, I believe that he was mentally unstable, he was suffering from violent mood swings, shifting from violent episode to being quiet and sullen." 49 The risk of prejudice to the accused from the admission of material of this character is obvious. The evidence does not seem to me to have significant probative value in connection with the only fact at present in issue, as I have earlier herein defined that fact. The incident in point is well removed in time from the killing of Mr. Cross. The incident does not involve the use of an iron bar. I can see nothing particular to the later incident and sufficient to give that incident such a rational connection to the assessment of the existence of the fact in issue as would satisfy the section 97 test. 50 The ruling is, therefore, that the whole of the material to which the ninth and tenth voir dire hearings were directed, is inadmissible. 51 The eleventh ruling concerns a group of four statements. They are: a statement made by Dr. Nicholas Babidge on 14 March 2001; a statement made by Sandra Travis on 27 March 2001; a statement made by John Perica on 27 March 2001; and a statement made by Teresa Sartor on 28 March 2001. The Crown wishes to lead from each of these persons evidence in accordance with his or her statement. 52 It is not, I think, necessary to canvass for present purposes the fine detail of these statements. It is sufficient to understand that the available evidence, taken at its highest in the Crown's favour, would establish that the accused is probably suffering currently from paranoid schizophrenia; that it is much more probable than not that he has been suffering from some such condition for a period of time that can be dated reasonably back to 1997; and that his condition is acceptably controllable provided only that he takes consistently, and as directed by competent medical advisers, appropriate medication. 53 In my opinion this material does not have significant probative effect in the sense, and in connection with the issue, now relevant. It should be acknowledged, I think, that this particular body of evidence, if accepted, (and I can see no reason, as at present advised, why it should not be accepted), is disconcerting, to say the very least, in what it implies as to the risks, both to the accused himself and to other members of the public, deriving from his diagnosed psychiatric condition. But concerns of that kind, however pressing, do not seem to me to have a significant rational connection to the assessment of the existence of the particular disputed issue of fact to which all of the present rulings on the voir dire are directed. 54 The ruling is, therefore, that the whole of the material which was the subject of the eleventh voir dire, is inadmissible.

The Alleged Hearsay/Relationship Evidence: Introduction 55 The Crown has given, pursuant to section 67 of the Evidence Act, two notices of its intention to lead hearsay evidence. 56 The subject of hearsay evidence is dealt with comprehensively, so far as concerns the Evidence Act, in Part 3.2 of that Act. The basic principle, which is established by section 59(1), is that: "evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by that representation." 57 Succeeding sections in Part 3.2 graft various exceptions onto that general principle. The Crown, in connection with both of its section 67 notices, indicates in those notices an intention to rely upon the relevant portions of section 65 of the Evidence Act. Those portions provide: "(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 was: (a) made under a duty to make that representation or to make representations of that kind; or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or; (c) made in circumstances that make it highly probable that the representation is reliable; or (d) against the interests of the person who made it at the time it was made.. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it; or (b) had a reasonable opportunity to cross-examine the person who made the representation about it." 58 The Crown relies, also, upon the provisions of section 72, which are: "The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind." 59 As to section 72, I can say at once that in my opinion the representations as to which the section might be relevant in principle by reason of the nature of the representations, are not shown by the evidence to have been contemporaneous in the required statutory sense. 60 One of the Crown's section 67 notices notifies an intention to lead evidence from three persons, Kenneth Heitman, Raylene McGurgan and Peter Ngatai. The witness whose unavailability is said to justify recourse to section 65 of the Evidence Act is the deceased, Mr. Cross. 61 The second of the two section 67 notices notifies an intention to lead evidence of two interviews conducted by the investigating police with the accused; and certain additional material. In the case of this notice, the person whose unavailability is said to justify recourse to section 65 of the Evidence Act is the accused himself. The accused's unavailability is not, of course, an actual physical unavailability, but a legal unavailability deriving from the provisions of section 17(2) of the Evidence Act.

The Alleged Hearsay/Relationship Evidence: Particular Rulings 62 The twelfth ruling concerns the proposed evidence of Mr. Heitman. Mr. Heitman made a statement on 20 July 1999. The Crown relies upon paragraphs 30 and 31 of that statement. They read as follows: "30. In relation to Lawrence Holt, he used to sleep in the same area as Ron, Ron told me that Lawrence used to smoke cannabis joints at the squat and Ron didn't like it. Ron didn't want drugs up there because they would shut the place down. I often heard them have loud arguments, with yelling and screaming. Old Tom Smith was there on a number of occasions when Ron and Lawrence Holt were arguing. Maori Peter would also have been there during the arguments. 31. On one occasion Ron told me that he put all of Lawrence's belongings into a big industrial bin across the road, near the Domain Apartments. This would have occurred a good month ago, it could have been about six weeks."

Mr. Heitman gave evidence at the committal. The last question asked of him in chief was: "Did Ron Cross ever talk to you about someone called Lawrence?"

And Mr. Heitman answered, simply, "No" , 63 In cross-examination, and in the context of his having said that the late Mr. Cross would "argue with anyone", Mr. Heitman was asked a question that is recorded as follows: "When you say 'he'd argue with anyone'?" Mr. Heitman's answer was: "Well, he was arguing with this bloke because he was smoking marijuana up there and he got his gear one night, you know, he rolled his stuff up, his sleeping bag and blanket, whatever, and threw it in an industrial bin which is across the road". Mr. Heitman thereafter confirmed that he had not himself seen any of that behaviour, but had been told about it by the late Mr. Cross. 64 The representations thus made by Mr. Cross to Mr. Heitman do not seem to me to fit within any of the paragraphs of section 65(2) of the Evidence Act. Plainly, the representations do not fall within paragraphs (a) and (d). Given the rather unflattering description of Mr. Cross by Mr. Heitman in the latter's evidence at the committal, I doubt that the representations can be brought within paragraph (c). As to paragraph (b), it seems to me that Mr. Heitman's evidence does not establish such a temporal connection as contemplated by that paragraph. 65 Even had I been persuaded to a different view concerning the applicability of section 65, I would nonetheless have excluded this evidence in the exercise of my discretion under section 135. I would have taken that course because the probative value of Mr. Heitman's evidence is, in my opinion, slight, and is substantially out-weighed by the danger of unfair prejudice to the accused. All that Mr. Heitman's evidence establishes at the end of the day is that the homeless men who were drifting in and out of the relevant portions of the Domain Car Park were often drunk and disorderly among themselves. That the accused might fairly be regarded as having formed part of that general social scene seems to me to fall a long way short of establishing by properly admitted hearsay evidence that there was a relationship particular to the deceased and the accused and of such a kind as rationally supports a proposition that the one beat the other to death on 20 June 1999. 66 The ruling is therefore that this evidence is admissible; and, in the alternative, that if the evidence be technically admissible, it ought to be excluded pursuant to section 135 of the Evidence Act. 67 The thirteenth ruling concerns the proposed evidence of Raylene McGurgan. She made a statement on 24 August 1999. The Crown has notified an intention to rely upon paragraph 8 of that statement. In order to give a fair context and meaning to paragraph 8, it is expedient to refer as well to paragraph 7. The two paragraphs are as follows: "7. On the Thursday, 17 June 1999, I was sleeping down near the Mary McDonald Centre which is across from the Woolloomooloo Police Station. During the night some time but I don't know the exact time I got up to go to an area across from Nick's Supermarket in the alcove. When I got there to get my blankets I found Ron Cross was sleeping on my swag. I just laid down near him and stayed there for the night. Ron Cross had never slept in that area before. He always slept over at the Domain Car park. 8. We woke up on the Friday morning about 5 o'clock or six o'clock and through the day we were talking together. Ron wanted me and my group to go over to the Domain Car Park with him and stay over there with him. He wanted company because there was only one guy there with him and Ron said that this man didn't talk. He told us that the man acted strangely and didn't talk. Ron told us that he was a dark man, a Koori, a Maori or something. He told us that he was the only man sleeping in the same area with him.. Ron seemed really keen for us to come over to his area at the Domain with him and I got the impression that he was frightened. Ron never would have asked us to go over there and stay with him if he wasn't frightened. Ron didn't tell us the name of the dark man he was talking about." 68 The first thing to be said about paragraph 8 is that its seventh and eighth sentences are clearly inadmissible because they are not any sort of hearsay evidence of representations made by Mr. Cross, but are opinions of her own volunteered by Raylene McGurgan. 69 Raylene McGurgan gave brief evidence at the committal. Her evidence-in-chief concluded with the following questions and answers: "Q. Did Ron ever talk to you about Lawrence? A. No. Q. Did Ron ever talk to you about the place where he slept? A. No." 70 There was no cross-examination 71 When the necessary excisions have been made from paragraph 8 of the statement, and the entirety of what remains available to the Crown has been looked at in a sensible and practical way, then it seems to me that its probative value is so slight as to make its relevance at all doubtful. The representations are imprecise and do not identify the accused in any way that I would regard as acceptable in the context of a trial for murder. For those reasons, I doubt that the representations fit, on a fair view, into any of the categories in section 65(2); but even if they were to do so, I would exercise in the case of this evidence, as in the case of Mr. Heitman's evidence, the section 135 discretion and exclude the evidence. 72 The ruling is that the evidence is inadmissible; and, in the alternative, that if the evidence be technically admissible, it ought to be excluded pursuant to section 135 of the Evidence Act. 73 The fourteenth ruling concerns certain evidence which the Crown proposes to lead from Mr. Peter Ngatai. Mr. Ngatai has made two statements, one on 21 June 1999 and the other on 29 July 1999. As to the first of those statements, the Crown has notified an intention to rely upon paragraph 7. As to the second of the statements, the Crown has notified an intention to rely upon paragraph 16. 74 Paragraph 7 of the earlier statement is in the following terms: "There was a young bloke who used to sleep next to Ron and he had been there for the last few months or so. I never spoke to this young bloke but Ron would talk about this young bloke bludging off him. Ron did not appear to like this young bloke. I would describe this young bloke as Islander appearance, about six foot something, in his late twenties, medium to solid build, short black cropped curly hair with a full beard that he appeared to just be starting to grow. I remember that he wears a beanie most of the time and it is usually black. He had a checked 'Canadian' jacket with yellow squares and black borders. He also wears dark brown work boots. I do not know if he had any friends on the streets." 75 In order to set a fair context for paragraph 16 of the later statement of Mr. Ngatai, it is appropriate to refer also to paragraph 15 of that statement. The two paragraphs read: "15. Senior Constable Wheeler showed me a photograph of a man. I recognised this man as the one who used to sleep next to Ron. The boys told me his name was Lawrence. In my statement I referred to a young bloke in paragraph 7. This is the young bloke I was talking about. I had no dealings with Lawrence, apart from seeing him in the sandy area and at the Talbot. 16. Ronny did not like Lawrence very much. Ron had tried to get Lawrence to leave the camp. Lawrence was a strange person and was a bludger. He was always trying to bludge cigarettes and money. Ronny just didn't like him. I remember one night in the sandy area, Ron had had a couple of drinks and was very verbal to Lawrence, calling him a black bastard. Lawrence was just sitting there copping it. He would get up and walk away and when he returned he'd cop it again from Ronny. This went on all night until Ronny got tired and went to sleep. There was no-one else present during this incident, just Ronny, Lawrence and me. It usually ended up just being the three of us sleeping there. The other blokes must have found a better spot." 76 It was put by the learned Crown Prosecutor, and I accept, that his instructions are to the effect that the time span which Mr. Ngatai is to be understood as having in mind when making all of the foregoing statements, was the time span between April 1999 and 20 June 1999. My understanding of that proposition is that the material available to the Crown does not pin-point any more exactly a particular day or days upon which all or any of the things related by Mr. Ngatai are said to have occurred. 77 Mr. Ngatai gave evidence at the committal, but what he is recorded as having said does not seem to me to add in any way that is at present material to what he had previously said in his two statements. 78 The statements made by Mr. Ngatai, as I have earlier extracted them, do not seem to me to be hearsay evidence of representations made to Mr. Ngatai by the late Mr. Cross. They seem to me to be, rather, opinion evidence given by Mr. Ngatai of what he saw, and thought, of the relationship existing between the accused and the deceased. For reasons similar to those which I gave in connection with Mr. Heitman's evidence, I do not think that Mr. Ngatai's evidence has any probative value to speak of. In so far as it might be thought to have probative evidence, I would exclude it in the exercise of the section 135 discretion. 79 The ruling is, therefore, that the notified material of Mr. Ngatai is inadmissible; or, in the alternative, is such as ought to be excluded pursuant to section 135 of the Evidence Act. 80 The fifteenth ruling concerns a particular aspect of the evidence of Mr. Paul Rameka. I have referred earlier, and in connection with the third ruling to the statement made by Mr. Rameka on 6 September 1999, and to the evidence given subsequently by him at the committal proceedings. 81 I have extracted in connection with that earlier ruling paragraph 7 of Mr. Rameka's statement. The Crown seeks to rely on paragraph 7 as hearsay evidence of a representation made by the man identified only as "Grant". I will assume for my present purpose that the Crown could prove, if necessary, the unavailability of "Grant"; and, also, either that the requisite notice had been given or that good cause could be shown for dispensing with it. 82 It seems to me that the representation made by "Grant" to Mr. Rameka does fit, on the view most favourable to the Crown, within paragraphs (b) and (c) of section 65(2) of the Evidence Act. 83 I am, however, of the opinion that the evidence should be excluded pursuant to the section 135 discretion. The incident is remote in time from the events of 20 June 1999. It does not seem to me to have any worthwhile rational connection with the assessment of the existence of the fact that the accused beat Mr. Cross to death with a metal bar. The evidence, if admitted, would be very prejudicial to the accused in the sense that it would build up about him an atmosphere of random violence without linking that impression, in any logically persuasive way, to the relevant fact in issue. There is, as well, the consideration that the bare narrative given by Mr. Rameka sheds no light whatsoever upon why, or in what particular circumstances, "Grant" was attacked. 84 The ruling is, therefore, that this particular evidence, in so far as the Crown seeks to lead it as hearsay material, is excluded pursuant to section 135 of the Evidence Act. 85 The sixteenth ruling concerns the body of hearsay material evidence which is the subject of the second of the Crown's two section 67 notices. As earlier herein noted, it is the unavailability of the accused himself that is said to make admissible pursuant to section 65 of the Evidence Act things said by the accused to investigating police. The relevant evidence which has now to be considered comprises a tape recording of an interview conducted with the accused on 25 August 1999 by Det. Sgt. Henney and Constable Waites; a transcript of a taped conversation held in the street on 24 September 1999 between Det. Sgt. Henney and the accused; and statements of Det. Phillips, Det. Shaw and Constable Waites. 86 It is convenient to begin with the electronically recorded interview carried out on 25 August 1999. I have myself viewed in chambers the contents of the tape. I have looked only at the question whether the entirety of the interview should now be excluded. I have not heard submissions upon the question whether, and if so to what extent, the contents of the tape should be admitted in an edited form. 87 It is convenient to quote the relevant written submissions put in by learned counsel for the accused. They are: "At that time the accused was told he was not under arrest. He was cautioned and asked more than 200 questions. Viewing the video tape it is plain …………….that Mr. Holt is at least an unusual man. He is seen to pause at great length between answers. He demonstrates a very poor memory. The interview ends when he stands up and asks to go to lunch. He did not fully adopt the interview. It is submitted that Mr. Holt while not under arrest when interviewed on 25 August was entitled to the protections pursuant to Part 10A of the Crimes Act . Objectively he was a homeless man known to the police to have committed an odd crime on 24 July 1999. Because of his manner and his appearance at interview it is submitted that police ought to have invoked the protections of Part 10A. He demonstrated enough unusual behaviour for police to have understood him to be a vulnerable person and to have acted accordingly. Since he was not arrested, Part 10A does not apply. However pursuant to section 90 of the Evidence Act it is submitted that it would be unfair to use the evidence against him." 88 In my opinion, and as is plainly conceded by the foregoing submissions, Part 10A of the Crimes Act 1900 (NSW) does not apply to the interview conducted on 25 August 1999. That is so because it is provided specifically by section 356 of the Crimes Act that Part 10A "applies to a person ……………….who is under arrest by a police officer for an offence". 89 The way in which section 90 of the Evidence Act should be applied to the interview is not so easily determined, for the reason that the proper application in the given case of section 90 requires the making of a balanced value judgment about the form and substance of the challenged interview, and more generally about the circumstances in which the interview came to be conducted. 90 Having viewed the video, I agree that there are aspects of the personal behaviour of the accused which might be thought, to choose a neutral description, somewhat odd. I agree, too, that from time to time during the course of the interview the accused paused before answering a particular question. It was not, however, at all my impression that those pauses indicated some particular difficulty on the part of the accused in understanding the question being put to him, or in deciding whether he would give any, and if so what, responsive answer. The answers given by the accused to the questions asked of him seemed to me, on a viewing of the video, to have been rational and responsive answers. 91 I agree that the accused stated from time to time during the interview that his memory of particular matters was not good. I do not accept, however, that he should be regarded as having shown so consistently poor a memory that the entirety of what he did in fact say responsively to the questions asked of him should be treated as unreliable or as inherently incredible. 92 It is the case that the interview was terminated by the accused standing up, indicating that he was not prepared to continue any further, and saying that he wanted to go to lunch. The impression made on me by that particular episode was of a piece with the impression overall that I drew from my viewing of the video, namely, that the accused, for all his manifest personal idiosyncrasies, was street-wise enough to know just how far he was prepared to go, and to go in fact no further. 93 The submissions put for the accused do not suggest, and I would in any event not have upheld a submission, that there was anything untoward in the way in which the interviewing police conducted themselves towards the accused. 94 I reject the submission that the entirety of the recorded interview should be rejected for the reason that it would be unfair to the accused to permit the use against him at his trial of any of the contents of the interview. 95 It is convenient to consider next the subsequent interview conducted on 24 September 1999. 96 On this occasion, Det. Sgt. Henney and Det. Snr. Const. Cassar approached the accused in Francis Street, East Sydney. Det. Sgt. Henney was equipped with a microtape recorder. He had a conversation with the accused, and the conversation was recorded on that recorder. The conversation was brief, and at its conclusion the accused was formally arrested. Det. Sgt. Henney gave evidence at the committal proceedings. He was vigorously cross-examined as to his motivation for having used a microtape recorder on the occasion now being considered. The thrust of the cross-examination was that the use of the recorder had been a deliberate forensic tactic designed to deprive the accused of protections to which he would have been entitled had he been arrested at once and taken back to a police station for interview by what has come to be the conventional method of electronic recording of such interviews. Det. Sgt. Henney gave in that connection the following evidence: "Q. And your fear was that if you invited him back to the station and he came, he might not answer your questions? A. No that wasn't my fear that if he was invited back and he came. My fear was that I only had a few questions to ask him, if he didn't provide the appropriate explanation, then I would arrest him and then he would refuse to adopt the earlier conversation which has been my experience with a number of cases in the past." 97 Before saying anything further about this approach of Det. Sgt. Henney, it is fair to quote the two opening questions of the street interview: "Q1 O.K. I want to ask you some further questions about the murder of Ron Cross on the twentieth of June nineteen ninety nine. Now my questions and answers will be recorded on this tape recorder. Do you understand that? A. Yes. Q2 Um…… I want you to understand that you don't have to say anything unless you want to as anything you do say may later be given in evidence. Do you understand that? A. Yes." 98 And it is relevant to note the concluding two recorded questions and answers: "Q38 O.K. Lawrence, under, under those circumstances, ah, you're under arrest for the murder, murder of Ron Cross and you will be taken to the Sydney Police Station. Do you understand that? A. Can I call a lawyer. Q39 Yes, you'll have every opportunity in the world to do that. A. O.K." 99 The approach taken by Det. Sgt. Henney, so far from giving just cause for indignant reproach, seems to me to have been eminently practical and sensible. There is no room for any suggestion that the accused was tricked, or in any other way overborne. The intended use of the recorder was made clear to him, and he was properly cautioned, before he was asked a single question of substance. I do not see why it is in any sense unfair to use against the accused at his trial such relevant and responsive answers as he gave after proper disclosure and caution. 100 I reject the submission that the contents of this particular interview should be completely excluded. 101 In connection with the recorded interviews of which I have been speaking, I have considered statements of Det. Sgt. Henney, of Det. Constable Waites, of Det. Sgt. Phillips, and of Det. Snr. Constable Shaw. The salient features of the statements of Detectives Phillips and Shaw concern an interview which they had on 21 June 1999 with the accused at The Rocks Police Station. Put very simply, their evidence is to the effect that the accused, having been cautioned, said that he wanted to talk to a solicitor, and that he wanted to exercise his right to remain silent. Nothing further of substance appears to have transpired at this meeting. 102 Having regard to the ruling earlier given in connection with the two recorded interviews, I do not see that there is any unfairness or prejudice caused to the accused by the admission of these particular statements; and the contents of the statements will be admitted at the trial upon proof in proper form.

The Crown Submissions based upon the decision: O'Leary v The King (1946) 73 CLR 566 103 Much of the submissions advanced by the Crown in connection with the voir dire hearings upon which I have been ruling derived from the above-named decision of the High Court of Australia. In deference to those submissions, I make the following observations about that particular decision. 104 The relevant facts can be taken as follows from the headnote of the report: "B, an employee at a timber camp, and other fellow employees including the applicant took part in a drunken orgy which commenced on Saturday morning and continued until late on Saturday night. At about midnight B retired to his cubicle which was a short distance from that of the applicant. In the early hours of Sunday morning B was found in his cubicle in a dying condition. An examination of B showed that he had been struck on the head eight or nine times with a bottle after which, kerosene having been poured over him, his clothes had been set on fire. Shortly before the discovery of B the applicant had in his possession a bottle. A pull-over belonging to the applicant was found close to B's cubicle. The applicant was found guilty of the murder of B. At the trial evidence was admitted that the applicant at various times during the orgy had violently assaulted other employees. Some of these assaults were unprovoked and all consisted of brutal blows at the head. During the afternoon the applicant had aimed a blow at B." 105 Of the six Justices who sat on the application, five were of the view that the evidence was admissible. Of those five, four were in general agreement as to the basis upon which the evidence was admissible. The following extracts from the judgment of Dixon J are, I believe, fairly representative of the majority opinion on the point: "In my opinion the evidence objected to was admissible, because, from the time on Saturday 6th July when the prisoner and the party with him came under the influence of drink right up to the conclusion of the scene in the early hours of the following Sunday morning in the presence of the deceased's body lying in front of the huts, a connected series of events occurred which should be considered as one transaction. The part which the prisoner took in the drunken orgy which, as the facts suggest, culminated in the fatal attack upon the deceased man would appear to me to be relevant to the question whether the prisoner was the assailant and, if so, whether he was at the time capable of forming, and did form, the intention which would make his crime murder. The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide. Examples of the admission of evidence of connected incidents of one transaction will be found in R v Cobden (1); R. v Voke (2); R v Rearden (3), and as to this case see per Cussen J in R v Herbert (4). In my opinion, for the reasons given, evidence of his conduct was admissible for the purpose stated. In the charge to the jury the evidence was not presented exactly in this way. It was put rather that the crime, in its circumstances, was of a description which showed that it must have been committed by a man of a particular disposition, that such a disposition amounted to a specific means of connecting or identifying the culprit and that the prisoner's conduct earlier in the period might be considered to show that, for the time being, he possessed that disposition. I do not think that this is an accurate way of treating the purpose for which the conduct of the prisoner was admissible. I am unable to see in the mere brutality of the crime or the fact that the assailant concentrated his attack on the head of the deceased any such specific connection with the prior acts of the prisoner as to afford, so to speak, an identifying mark of the sort referred to in the decisions which appear to have been in the learned judge's contemplation." (73 CLR at 577,578) 106 I am unable to accept the Crown submissions as to the way in which the decision in O'Leary should be applied to the given facts and circumstances of the present case. Fundamental to the majority approach in O'Leary was, precisely, that there was evidence capable of establishing a connected series of events capable of being considered rationally as parts of a single transaction. And it is, precisely, the absence of just such an element of connection or of continuity that seems to me to distinguish the evidence available in the present particular case from the evidence that was available in O'Leary.

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