Evidence - Admissibility and relevance - Hearsay - In general - Relevant principles - Exceptions to rule excluding hearsay - Criminal proceedings - Previous representation by witness of admission by accused - Witness claiming no recollection of admission or previous representation - Evidence of witness' previous representation - Use to be made of it by a jury - Direction to jury.

Evidence Act 2001 (Tas), s60.

Lee v R (1998) 195 CLR 594, followed.

Aust Dig Evidence [48]

Judgment Number: [2007] TASSC 102

1 Appeal allowed.

2 Conviction on count 3 quashed.

3 Sentence set aside.

4 Counts 1 and 2 remitted to the trial judge for re-sentencing.

5 New trial of the appellant on count 3.

1 Some of the circumstances giving rise to the appeal are contained in the judgment of Slicer J. The evidence that is central to the appeal is an edited copy of a statement made by Selina Grace Bell to police. It was admitted as an exhibit upon being tendered by Crown counsel. There was no objection to its admission into evidence by counsel for the accused and for that reason, the appeal should not be upheld and a new trial ordered simply because of its admission into evidence. That disposes of the first ground of appeal.

2 The second ground of appeal is in the following terms:

"Insofar as any part of the statement was admissible as a prior inconsistent statement of the witness, it ought to have been excluded from evidence on the basis that it is [sic] probative value was outweighed by the danger of unfair prejudice to the defendant in accordance with the provisions of Section 137 of the Evidence Act 2001."

3 It is poorly drafted but that should not affect the outcome of the appeal. What it should have said, and it is the basis upon which I would allow the appeal, is that the learned judge should have directed the jury, but failed to do so, to ignore the exhibit and not to use it in any way in favour of the State against the appellant.

4 In her statement, Ms Bell related admissions that she said had been made to her by the appellant, which included that he had made a false insurance claim, the subject of the third count. She was called as a witness for the prosecution, although it appears to be the case that Crown counsel expected that she would not give evidence in accordance with the statement. It may be inferred that it was also Crown counsel's expectation, when calling her, that if she did not adhere to what she said in the statement, the State would be able to have it admitted and used against the appellant as evidence of the truth of its contents.

5 Miss Bell was a witness who was hostile to the Crown. She gave evidence that she had no memory of a conversation with the appellant about a false insurance claim and she had no memory of speaking to the police about it or of giving them a statement. The statement she had made to police was received by the Court into evidence for the purpose of the application that Crown counsel then made. The application was under the Evidence Act 2001, s38, for leave to cross-examine the witness about the matters raised in the statement. Counsel for the appellant opposed the application but it was granted and the appeal does not concern that.

6 Section 38(1) provides:

"38 Unfavourable witness

(1) A party who called a witness, with the leave of the court, may question the witness as though the party were cross-examining the witness about -

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement."

7 The learned judge found that the witness was unfavourable to the party who called her; that she was "not interested in being particularly cooperative", presumably a finding that she had not made a genuine attempt to give evidence; and that she had made a prior inconsistent statement. Evidence of the making of the statement by her had been given earlier by a police officer.

8 Before the jury once again, Miss Bell reiterated that she had no memory of speaking to the appellant with respect to the making of a false insurance claim, nor of speaking to the police about it and making a statement about the matter. The passage in the statement implicating the appellant was read to her. She not only claimed no memory of saying such things but went further and denied doing so. Crown counsel then tendered the statement and it was formally received into evidence, no objection to that course being made by defence counsel.

9 By the time all the evidence had been presented, counsel for the State had come to the realisation that Lee v R (1998) 195 CLR 594 significantly limited the use that could be made of Ms Bell's prior inconsistent statement and the attention of defence counsel and the learned trial judge was drawn to the case. However, the full implication of it appears not to have been understood, for what Crown counsel said to the learned judge about Lee's case was: "It can be used as proof that Selina Bell has previously said to police that she'd had a conversation with Kerry Reid about making a false insurance claim not that it can prove that he did make a false insurance claim." Lee's case also permitted its use to prove that Kerry Reid did say to Selina Bell that he had made a false insurance claim, but not that what he said to her was true. For practical purposes, the difference is insignificant. What was held by the High Court resulted from its interpretation of the exception to the hearsay rule in the Evidence Act, s60.

10 Strangely, having drawn the attention of the learned trial judge and defence counsel to Lee's case, Crown counsel, in his closing address, sought to use the evidence in question to the State's advantage (without explaining what the advantage was, except to say "She told them the truth then"), whereas it provided none. It had taken the State's case nowhere. What counsel said to the jury was:

"Now you'll get specific instructions about how you can use this statement and it's very important that you listen to them carefully. It's called a prior inconsistent statement. I'm not going to go into the details of that, her Honour will discuss it with you. But my point is simply this, that in a statement that she gave to Const Holland some time ago on the 26th of April 2005 one of the things she said was this:

'I left later that day and went home. The next morning I went to Kerry Reid's house at Waverley. I told him a [sic] knew about the staged burglary. He said it was true and that he had made a false insurance claim form [sic] the burglary for $11,000. He said that he'd been paying insurance for years, 'They've got plenty of money to pay me out.'

Well that's what she told police on the 24th of May. Was she part of the big conspiracy when she did that? No. She told them the truth then. And then got in a little bit of difficulty when that was pointed out to her here which enabled me at the end of the day to cross-examine her. But you have that. It's a document that you have that you need to be - well you need to bear in mind what her Honour says about it and how you use it and I'll leave that to her. But it does, I suggest, corroborate Sue Gilles and the insurance job comment. It does support the State's case."

11 When summing up to the jury, the learned trial judge said something about how the jury could not use the evidence, but gave no directions explaining what probative value the evidence had which might have strengthened the State's case against the appellant. The learned judge gave the following instructions:

"Now you will have in the jury room Selina Bell's statement that she made to police in 2005. It was on a date in April 2005. The Crown says to you that she was lying to you in court yesterday when she said she had no memory of any aspect of either what it was she'd spoken about to Kerry Reid, Sarah Reid or the police, that she was lying. But they also say to you or suggest to you that perhaps she wasn't lying when she made the statement to police. Now as I said you'll have that statement with you. Now you may use that statement as evidence that Miss Bell had previously made a statement to police that was not consistent with the evidence that she gave in court and you can look at the contents of the statement for determining that. But you cannot use the statement itself as evidence that what is in it is true. You can only use it as evidence that Bell when she made that statement said what is in the statement to police, and that that is not consistent with the evidence that she gave in court."

12 If the jury could not use the statement as evidence of what was said in it was true, there was no useful purpose for which it could properly be used at all. Whether Miss Bell had or had not said such things to the police, whether she did or did not remember the appellant conversing with her and whether she did or did not remember making a statement to the police, had no probative value in the circumstances of the case. All the evidence could establish was that she was not a credible witness. As she had given no evidence that could be used in favour of or against a party, discrediting her was a worthless and more importantly, irrelevant matter.

13 Counsel for the Crown had urged the jury to use the evidence in the Crown's favour. The learned judge did not explain to the jury that they could not do so and that there was nothing in the evidence which advantaged the State's case. The jury could not have understood in what way they were permitted to use the evidence, and they had reason to believe incorrectly that it assisted the State's case in some way. They should have been directed to ignore the evidence and should not have been permitted to take the statement with them when they retired to consider their verdict. The evidence was misleading and its effect was confusing, and its probative value was outweighed by the danger of unfair prejudice to the appellant through misuse by the jury. See Evidence Act, ss135 and 137.

14 I agree with Slicer J that the proviso in the Criminal Code, s402(2), cannot assist the respondent. The appeal should be upheld and the conviction on count 3 and the sentence should be set aside. There should be an order remitting counts 1 and 2 to the learned trial judge for resentencing and an order that there be a new trial of the appellant on count 3.

15 The appellant was tried on indictment alleging criminal conduct with co-offenders at Cressy on 27 April 2002, and separately on a third count of dishonestly acquiring a financial advantage between 23 April and 8 July 2003 at Launceston. The joinder of counts and parties did not, for evidentiary purposes, alter the fact that separate trials were taking place. The appellant was convicted on the three counts (burglary and stealing on 27 April and dishonesty on the latter). He has appealed against his conviction on the third count alone. There was some, but limited, nexus between the two occasions of criminal conduct. It is in that context that the ground of appeal ought be considered. In cases involving joint trials, especially where one involves multiple parties and the other an individual, there is a need for the prosecution to more carefully conduct its case.

16 This appeal concerns the third count only. The indictment alleged that in April 2003 the appellant made a false insurance claim in respect of property said to have been stolen from his home in April 2003. The prosecution case was that he had set up an arrangement with his daughter and another person to carry out a false burglary and dispose of the items which were insured. Neither the daughter nor that other person was subject to the indictment. The other accused were involved in the events of the previous year.

17 The case against the appellant was circumstantial. He had denied the accusations during two interviews conducted on 24 May and 20 December 2005. Neither the daughter nor the claimed associate was called as a witness on the trial. The prosecution called as a witness Selina Grace Bell who had made a statement to police on 26 April 2005. She had been a friend of the appellant's daughter through whom she had met the appellant. In her statement of 26 April, Ms Bell recounted that some days earlier she had been interviewed at the Launceston police station and charged with the crime of stealing. She had been questioned at the same time about the 2003 "false burglary". When released, she had asked the daughter, Sarah, about that event and later recounted to police that the daughter had admitted involvement and implicated her father and the named associate. The daughter was said to have provided details of the "false burglary" and precise details of the property stolen which are recorded in Bell's statutory declaration of 26 April. The statement continued to describe a claimed phone conversation between Sarah and her father and a subsequent meeting and conversation between Ms Bell and the appellant, during which he admitted responsibility for the insurance fraud. It is the reception into evidence at trial of those portions of the statement relating to the two conversations with Sarah and the appellant which is the subject of this appeal.

18 It is obvious that the prosecution had cause to believe, before trial, that Ms Bell would not adhere to her statement to police. At trial, and before Ms Bell had been called as a witness, the prosecution had proved the original and full statutory declaration through the police officer who had taken the statement. The full statement was marked for identification.

19 When called as a witness, Ms Bell denied any recollection of either the conversation with Sarah or her father. She further claimed to have no recall of speaking to police about the insurance claim. The prosecution was granted leave to question the witness as one unfavourable to the prosecution in accordance with the Evidence Act 2001 ("the Act"), s38. Counsel for the appellant at trial had unsuccessfully objected to that grant of leave. During the course of cross-examination, the witness agreed that it was possible that she had made the statement to police but just did not recall it. A passage was put to her in the following exchange:

"Do you agree you told police this then:

'I left later that day and went home. The next morning I went to Kerry Reid's house at Waverley. I told him a [sic] knew about the staged burglary. He said that it was true and that he made a false insurance claim for the burglary for $11,000. He said that he'd been paying insurance for years and they've got plenty of money to pay me out.'

First of all, do you agree you told police that?.....No. I do not.

Do you deny telling police that?.....Yes, I do."

20 An edited version of the statement was then tendered as "a prior inconsistent statement" in accordance with the Act, s43.

21 The portion of the statement tendered reads:

"I, Selina Grace Bell of 11 Josephine Place, Newnham do solemnly and sincerely declare that:-

I have been friends with Sara REID of 40 Fryett Street, Waverley for two years. We met through neighbours of hers who used to live next door.

Over the past two years I've met her father Kerry REID, her brother Colin REID, and her mother Gaylene ALLWOOD. Kerry lives at 10 Parangana Place, Waverley. Gaylene lives at a house at Swan Bay, which I think is on the way to Devonport.

Last Wednesday I went up to Sarah's at Waverley and asked her about the burglary.

Sarah when she got off the phone to her dad phoned her brother Colin who came over from Gunns next door. He took the microwave which was white and in the kitchen. I heard a conversation between Sarah and Colin. Colin said, 'Do we have to take it, is it engraved.' I saw Colin look on the back of the microwave. He said, 'Oh my god it's engraved, we've got to get rid of it, or we're gone.' Sarah asked Colin what are we going to do with it. They made a decision to get Gaylene's boyfriend Jason who works at Gunns to take it to Gaylene's. They then checked the VCR to see if it was engraved which it wasn't. Colin said that will be right, 'We will leave it here.'

I left later that day and went home. The next morning, I went to Kerry Reids's house at Waverley. I told him I knew about the staged burglary. He said that it was true and that he had made a false insurance claim from the burglary for $11,000. He said that he'd been paying insurance for years, they've got plenty of money to pay me out.

He told me that the television that was taken from the house was sold by Colin and Sarah for $800, because it was engraved. They then went and brought a new television which is still in their house.

He began bambling on about Sarah was only a juvenile when she did it and because he didn't do the burglary he couldn't be charged.

In Kerry's house there is a bunch of new stuff. He has a new television, stereo, DVD player, VCR, microwave, kitchen appliances, lawn mower, whipper snipper and tools. They all look brand new.

I have made this statutory declaration of my own free will.

I am willing to attend court if necessary.

Dated 26 April, 2005."

22 Portions of the evidence would have been inadmissible even if the witness had been prepared to recount them from the witness box. It is not correct to say, as has been said, that the paragraph concerning the claimed conversation between Sarah and Colin (the co-accused on counts 1 and 2) was incapable of causing prejudice, especially since that conversation was said to have immediately followed an earlier phone call between Sarah and the appellant.

23 The previous representations of the witness Bell were not admissible as evidence of the truth of the facts adverted to by either party referred to in the representations (Lee v R (1998) 195 CLR 594). Here counsel for the appellant having unsuccessfully opposed the s38 application, did not repeat any opposition to the reception of the edited portion of the statement. But that failure did not render meaningless the import of the Act, s137. The only basis for the admission of the evidence was with respect to the assessment of the credit of the witness. But Bell had given no other admissible evidence which was relevant to any fact in issue. The evidence was prejudicial (R v Blick [2000] NSWCCA 61) and invited suspicion of a family cabal, especially through its reference to the daughter and a co-accused on the separate trial.

24 The learned trial judge dealt with the evidence of Bell and its import, in the following terms:

"We have Selina Bell. This young lady came in and gave evidence. She said she knew Sarah Reid, Kerry Reid, Colin Reid and Karley Cocker. She was asked if she'd had a conversation with Sarah Reid in relation to an insurance claim by Sarah's father. She was asked if she'd spoken to Kerry Reid about an insurance claim. She was asked if she'd spoken to police about the claim. And she maintained in court here that she had no memory of any of those things. She was then questioned about making a statement to police about the matter and she said she couldn't remember making the statement and then in fact denied that she had. The State then tendered to the court a statement made by Selina Bell to police about these issues. It was put to her that she was lying about having any memory of these issues to protect Kerry Reid and she denied that.

She was cross-examined by Mr Hall about this particular statement and he put to her that he'd asked her some questions before in the magistrates court. He said to her, 'All right, well you're asked', sorry, these are matters he's putting to her that he said he put to her in the magistrates court. 'All right, well if you're asked to give evidence in relation to the statement you made to police you're telling me you couldn't remember any of it'. He said she told him, 'No I can't tell you the truth'. She was asked in court, 'Do you recall that? That's the truth', she said. 'Does that remain the case today? It does'. And Mr Hall then put to her that in the magistrates court she had said, 'I have bipolar disorder and I was on drugs at the time and my state of mind at the time isn't my state of mind now'. And he asked her in court yesterday, 'Is that correct? That's the truth? Yes'.

Now you will have in the jury room Selina Bell's statement that she made to police in 2005. It was on a date in April 2005. The Crown says to you that she was lying to you in court yesterday when she said she had no memory of any aspect of either what it was she'd spoken about to Kerry Reid, Sarah Reid or the police, that she was lying. But they also say to you or suggest to you that perhaps she wasn't lying when she made the statement to police. Now as I said you'll have that statement with you. Now you may use that statement as evidence that Miss Bell had previously made a statement to police that was not consistent with the evidence that she gave in court and you can look at the contents of the statement for determining that. But you cannot use the statement itself as evidence that what is in it is true. You can only use it as evidence that Bell when she made that statement said what is in the statement to police, and that that is not consistent with the evidence that she gave in court.

25 Reference to "cross-examination by Mr Hall", refers to counsel for Colin Reid who was the co-accused in the separate trial for the burglary and stealing of April 2002. The learned trial judge had been placed in a difficult position. No objection had been taken to the reception of the "edited" document. It was not evidence of the truth of the contents. But the prosecution, in the words of the learned trial judge, had said:

"... that she was lying to you in court yesterday when she said she had no memory of any aspect of either what it was she'd spoken about to Kerry Reid, Sarah Reid or the police, that she was lying. But they also say to you or suggest to you that perhaps she wasn't lying when she made the statement to police."

The statement attributed to the prosecution invited consideration of the converse, namely if she lied in court the original version was true, a proposition which could not be tested by cross-examination at trial by the appellant. No use could have been made of the evidence and the proposition stated in Lee (supra) remains.

26 The grounds of appeal as amended state:

"a) That the learned Judge erred in admitting into evidence P6 the statement of Selena Grace Bell in that the admission of this statement was contrary to the provisions of Section 43(2) of the Evidence Act 2001;

b) Insofar as any part of the statement was admissible as a prior inconsistent statement of the witness, it ought to have been excluded from evidence on the basis that it is [sic] probative value was outweighed by the danger of unfair prejudice to the defendant in accordance with the provisions of Section 137 of the Evidence Act 2001."

27 Ground (b) ought be allowed. In my opinion the appeal ought not be dismissed because of the Criminal Code, s402(2). The case was circumstantial and relied primarily on claimed inconsistencies of the witnesses, a linking between property taken in 2002 and said to have been present in the home the following year, and inferences to be drawn from "indirect" witnesses. Whether this Court follows the approach taken by the High Court in Weiss v R [2005] HCA 81; (2005) 224 CLR 300 or perhaps that formulated differently in Libke v R [2007] HCA 30; (2007) 81 ALJR 1309, here the outcome would be the same. In Weiss (supra) and Darkan v R [2006] HCA 34; (2006) 227 CLR 373, the court applied the test that a verdict ought be quashed unless the appellate court, making due allowances for limitations in assessing proceedings at second instance or at a distance, is satisfied beyond reasonable doubt as to the guilt of the accused. In Libke (supra), a case involving the conduct of the prosecutor, the minority suggested that "irregularities" at trial should be tested by "fairness of trial". On either approach I would quash the conviction in respect of the indictment, count 3, and order a new trial.

28 The appellant was sentenced to a single term of imprisonment upon his conviction of the three crimes. The orders of this Court ought include the setting aside of that sentence and the remitting of counts 1 and 2 to the learned primary judge for resentencing.

29 I agree with the orders proposed by the other members of the Court, and with their reasons.