"The fact that the investigating police officers had put the prosecution's versions of the facts to the accused, and had given him the opportunity to answer them and to give his own account of the events in question, was relevant to the fairness of their conduct, provided that a direction was given to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty. As was said by this Court in an earlier case, it has long been common practice to adduce evidence of such conversations because, if it were not given, the jury would be left to speculate as to whether the accused had given any account of his actions when first challenged by police: R v Astill NSWCCA, unreported 17 July 1992".
34 The hearsay, if clearly a denial of guilt, was said to be admissible and "ordinarily" should be given in evidence in R v Familic NSWCCA, unreported 4 November 1994 where Badgery-Parker J (Hunt CJ at CL and Smart J agreeing) said:
"The relevant principle is established in the decisions of this Court in Astill (unreported, Court of Criminal Appeal, 17 July 1992) and Reeves (1992) 29 NSWLR 109 at 114-115. See also Keevers (unreported, Court of Criminal Appeal, 26 July 1994). It is that where an accused person replies to a question put by police officers or responds to an invitation to comment on some matter put to him or her, what he or she says is in general admissible in evidence. If what is said amounts to no more than an assertion of the right to silence, it may be admitted but the jury should be immediately directed about the right to silence and that no inference adverse to the accused may be drawn by reason of the exercise of it: Astill (at pp8-9). Where what is said is clearly an admission then, subject of course to the question of voluntariness and the possible existence in the particular circumstances of discretionary reasons for exclusion, it is admissible. Where it is clearly a denial of guilt, it is admissible and ordinarily should be given in evidence".
35 The qualification "ordinarily" may refer to perception of possible circumstances such as were contemplated in the third paragraph of this extract of the judgment of the Court of Appeal (Criminal Division) in R v Pearce 1979 69 Cr App R 365 (The Lord Chief Justice, Waller LJ and Lloyd J):
"(1) A statement which contains an admission is always admissible as a declaration against interest and is evidence of the facts admitted. With this exception a statement made by an accused is never evidence of the facts in the statement.
(2)(a) A statement that is not an admission is admissible to show the attitude of the accused at the time when he made it. This, however, is not to be limited to a statement made on the first encounter with the police. The reference in R v Storey to the reaction of the accused 'when first taxed' should not be read as circumscribing the limits of admissibility. The longer the time that has elapsed after the first encounter the less the weight which will be attached to the denial. The judge is able to direct the jury about the value of such statements. (b) A statement that is not in itself an admission is admissible if it is made in the same context as an admission, whether in the course of an interview, or in the form of a voluntary statement. It would be unfair to admit only the statements against interest while excluding part of the same interview or series of interviews. It is the duty of the prosecution to present the case fairly to the jury; to exclude answers which are favourable to the accused while admitting those unfavourable would be misleading. (c) The prosecution may wish to draw attention to inconsistent denials. A denial does not become an admission because it is inconsistent with another denial. There must be many cases, however, where convictions have resulted from such inconsistencies between two denials.
(3) Although in practice, most statements are given in evidence even when they are largely self serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to its being made part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible".
36 The present case deals with statements which can be classified as wholly exculpatory. Such relevant doctrine as can be discerned can be traced to origins in the divorce proceedings of Queen Caroline (The Queen's Case 1820 2 Brod & Bing 286) where the advice of the House of Lords was that a statement of mixed matters, some self serving and some against interest, must be placed in whole before the tribunal of fact.
37 The Crown Prosecutor accepted this rule in the case of "mixed" material but contended that, while admissions as statements against interest are admissible at common law (and s 81) based upon the rationale that such are generally truthful, the converse does not apply to self serving statements.
38 That contention should be viewed in the light of the opinion of Kirby P in R v Astill 1992 63 A Crim R 148 @ 156 who, after citing Lord Wilberforce in Ratten v The Queen (1972) AC 378 when his Lordship referred to the distinction between the fact of words spoken and the question of hearsay arising if such fact is to be used "testimonially", said:
"There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: '… reliance on the greater trustworthiness of statements made at once and without reflection …' The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten at 389f:
'The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded…'
And later (at 391):
'These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused'. "
39 It has been postulated that such assertedly inadmissible material may be put before a court at the election of the prosecution (although it may be supposed that there is implied consent of the accused to tender of material in his or her favour). In R v Higgins 1829 3 C & P 603 Parke B said:
"What a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as part of his case against the prisoner; however, if the prosecutor makes the prisoner's declaration evidence, it then becomes evidence for the prisoner, as well as against him".
40 That passage was cited with approval by Lee J in R v Williamson 1972 1 NSWLR 291 @ 295-6. I comment that in 1829 it certainly would not have been contemplated that the response of an accused to police assertion and interrogation could be viewed at trial on a screen and the conversation heard in the broadcast from a sound track. It is unlikely that in 1972, the availability of video recording facilities in police stations throughout the state would have been anticipated when the over a century old observation was cited.
41 Judges in various jurisdictions have not spoken with one voice on the question of admissibility of exculpatory statements made by an accused when confronted by allegation.
42 In Queensland in R v Callaghan 1993 70 A Crim R 350 the accused made exculpatory statements in response to police questioning some six hours after what had apparently been a citizen's arrest. Evidence was permitted of what he had said at the time of apprehension in order to rebut any inference of guilty mind from flight but the content of the police interview was rejected when counsel sought to cross examine the officers as to what was said to them. However, in a summary of argument it was recorded that the appellant's submission in that case was "such evidence ought to be received ….. (to) show that the appellant gave a similar version on a prior occasion, and this would show consistency; it would go in as evidence of his reaction to the police investigation, and would support his credit".
43 Fitzgerald P observed that "in my opinion, the exculpatory record of interview upon which the appellant sought to rely did not meet the tests upon which he based his argument". However, Pincus JA and Thomas J expressly rejected the submission that the evidence was admissible on any of those bases and specifically rejected the proposition that what is said by an accused to a police officer was admissible. Their Honours understood the appellant's argument to be based upon what they described as the perplexing decision of the Court of Appeal (England) in R v Tooke 1990 90 Crim App R 417. They noted that that case suggested that there is a principle that a statement which is not an admission is admissible to show the reaction of the accused at the time he made it. It suggests that such statements are admissible where the accused is taxed either by the police or by somebody else and that the test of admissibility is a threefold one - whether the statement was spontaneous, relevant and added weight to other testimony in the case.
44 Their Honours went on to examine what they discerned as a change in attitude in English authority which originally accepted that self serving statements, even when forming part of a mixed statement, were received to show the "attitude of the accused at the time when he made it" as distinct from the trend of Australian authority which was that, once the evidence was admitted, it was available to be deliberated upon by the jury as evidence of fact. They noted that since the decision of the House of Lords in R v Sharp 1988 86 Crim App R 274 the English position has come into line with that which they perceived in Australia.
45 However, they expressly declined to follow Tooke and further rejected an approach which had been taken in New Zealand.
46 In New Zealand in R v Coats 1932 51 NZLR 401 Ostler J observed:
"Exculpatory statements made to the police when making enquiries about a crime or suspected crime, if properly obtained, are always admissible both for and against the person who made them if he is subsequently charged with a crime".
47 In the same case Smith J thought that such statements were admissible as part of the "rules of practice".
48 In Western Australia in R v Middleton 1998 100 A Crim R 244 an accused gave an exculpatory explanation of how his wife was killed but, as it was not video recorded, it was argued to be inadmissible in accordance with s 570D of the Criminal Code. Pigeon J (in dissent) expressed the opinion that it would not be permissible to bring in exculpatory material by way of cross examination as that would be hearsay and such evidence could only be admitted by direct evidence from the appellant in the witness box. Ipp and Heenan JJ held that there were exceptional circumstances within the statutory provision which, in the interests of justice, led to a conclusion that the content of the interview should be admitted. The basis of their Honours' finding was, however, that it should be admitted as capable of being relevant to the state of mind of the accused at the time of that and subsequent interviews which did not face the same admissibility barrier.
49 Ipp J, referring to Sharp observed that the rationale for admitting exculpatory parts of one whole statement is that as such were uttered on the same occasion as admissions were made, reliability might be thought to be greater. He noted that where exculpatory utterances are part of a separate statement, that consideration would not apply and he concluded then that if admitted they could not be relied upon as evidence of the truth of the content.
50 His Honour also observed:
"There is a line of English authority to the effect that a self serving statement is admissible to show the reaction of the accused at the time he made it: R v Pearce 1979 69 Crim App R 365; R v McCarthy 1980 71 Crim App R 142; R v Tooke 1990 90 Crim App R 417. In R v Callaghan , the Court of Appeal of Queensland declined to follow these authorities. I shall, for the purposes of these reasons, without expressing an opinion on the matter, accept that this rule is not part of the law in Australia".
51 As indicated in the extracts from Keevers and Familic (and the references therein to Astill and Reeves) there has been an acceptance of the admissibility of the response of an accused to allegation at common law in New South Wales.
52 Irrespective of the differences that can be noted in the above it is clear from the unequivocal terms of s 59 that the common law has been subordinated to the statute. The express language of s 59 removes the potential for preservation of any different common law rule such as contemplated by s 9 which provides:
"9(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment."
53 As the exception offered by s 66 was inapplicable, the sole perceptible basis of admissibility of the exculpatory statements was the exception created by s 60. Whilst it is apt to speak of the credibility of a witness (including an accused who testifies) in connection with what he or she says, the credibility of an accused is put in issue in a unique sense at a trial as a consequence of the plea of not guilty. Thus preceding exculpatory statements have, in a case such as the present, the dual relevance of denial of facts alleged and credibility of the accused.
54 However, as I have already mentioned, once the appellant indicated his intention to testify, the material was in fact tendered by the Crown. A complaint of the appellant is that, as it was necessary for him to take that course in the light of his Honour's ruling, he had thereby lost the option of remaining silent at the trial and inviting the jury to at least doubt his guilt by according some weight to the denials made to Senior Constable Williams.
55 This raises the question of whether the Crown ought to have tendered the exculpatory statements. In harmony somewhat with the observation of Parke B in Higgins, the Crown Prosecutor in a written submission to the Court contended:
"Sometimes prosecutors tender police interviews of accused persons even though they contain no admission. This tender is done not because of any obligation to tender the material but as a benefit tendered by the prosecution and accepted by the defence. Because it has happened with some frequency notwithstanding its inadmissibility, there (sic) has become an expectation on the part of some defence lawyers that prosecutors always tender exculpatory statements by an accused. Insofar as the appellant may have been deprived of a tactical advantage, from the tender of inadmissible denials, such a tactical advantage is not based on any legal entitlement."
56 Since the abolition of the entitlement of an accused at trial to make an unsworn statement to the jury, it was acknowledged (and confirmed by observation of cases which pass through this Court) that it is a not infrequent occurrence for an accused person, after tender by the Crown of the content of exculpatory material usually in the form now of a video taped interview, to invite the jury through counsel to consider that material as response to the Crown case and a basis for a verdict of not guilty.
57 It would be, to say the least, unsatisfactory for that course to be open to some accused but not to others as a matter of mere happenstance. I am not implying that prosecutors do not behave responsibly but if the tender of such material is done as a matter of unfettered discretion it would be expected that some prosecutors would tender it and others would not.
58 A danger which would need to be guarded against would be that contemplated in Pearce that an accused may bring forward a contrived "hearsay case".
59 Nevertheless, it is submitted on behalf of the appellant that the Crown should have called the exculpatory evidence as "a rule of fair play essential to the proper administration of justice". It would certainly lead to unfairness if evidence of this type were tendered or not as a result of arbitrary selection on the part of a prosecutor. I consider that, absent some particular reason for refraining from doing so, such evidence should be put before the Court by the prosecution.
60 On the basis that an exculpatory statement is admissible as within what is conceived by s 60, a mechanism to inhibit abuse is provided by s 137 which, inter alia, vests a presiding judge with a wider discretion to reject evidence than possessed pursuant to common law. Specifically, where probative value is outweighed by danger that the evidence may be unfairly prejudicial to a party, (in such an instance, the party being the Crown), there is power to reject it.
61 It was submitted on behalf of the Crown that the appellant's argument involved restoration by "a back door" of the abolished entitlement of an accused to make an unsworn statement to the jury. That is not the case. The evidence would only be available to persons who responded to confrontation by denial. As I have just observed, there is mechanism for rejection of contrived denial.
62 I am conscious that the concept that the statement in response to allegation is germane to the credibility of an implied assertion of innocence in a plea of not guilty involves a very liberal construction of the scope of s 60. I consider that construction should be so extended in congruity with principles applicable where criminal liability is sought to be affixed. There should be a recognition of the attributes of modern technology and, in particular, a video record provides a rational resource from which credibility assessment might be made. Further, I would be reluctant to determine that the statutory construct had extinguished the availability of a common practice in the conduct of criminal trials in this State in the absence of express statutory indication that that was the intention of the legislature.
63 It can incidentally be observed that a determination of whether the evidence of a witness is credible from viewing that witness testifying by means of video screening is an acknowledgment of the available technology and a necessary concomitant of a variety of legislation providing for witnesses to give evidence by that method. It is consistent with the implication of such provisions that, in similar fashion, statements by an accused presented on video display be assessed by a tribunal of fact.
64 In summary: