Tan v R

Tan v R - [2008] NSWCCA 332 - NSWCCA 2008 case summary — Zoe

[12]

The Crown witnesses 5 Relevantly, the Crown called three witnesses all of whom, to a greater or lesser degree, were accomplices in the drive-by shooting. Of those witnesses, Lenati was the most critical as without his evidence there was little doubt that the Crown case would fail. Lenati had taken part in an electronically recorded interview (the ERISP) with investigating police officers in New Zealand on 22 February 2004, which was admitted as part of Exhibit E in circumstances to which I shall refer below. That exhibit relevantly comprised the videotape of the ERISP and a transcript of its contents. Lenati also took part in a drive-around interview with investigating officers on 10 September 2004 during which he showed them relevant locations. The videotape and transcript of that interview became Exhibit F. 6 In both interviews Lenati referred to the appellant as "Ken". In the interview on 22 February 2004, Lenati was informed that he was going to be asked a number of questions about the drive-by shooting commencing with a meeting at the flat of the sister of the shooter, "Minnie Me". It is convenient at this point to set out the critical questions and answers as recorded in the ERISP upon which the Crown relied to implicate the appellant in the shooting: "Q21 … A. We had a meeting at um, at the shooter's sister's place um, Ken Tan, Roy Malouf, Minnie Me we call him and a few other um, Lebanese fellows were there … We all had a meeting there and something had come up … I saw a, I think they're called it a M1, and a nine mil um, as they were packing up they were planning out, when I say they were um, Ken, Roy and the shooter were planning the best routes of how to get out safely and, and um, yeah, for the getaway procedure. We then left, left the, the house. As we left we, ken would head off to the casino … … Q100 … And who was, who was in that room when you got there? A. Roy, um, Maroun, Ken and Minnie Me, and one of Minnie Me's um, um, mates. … Q102 O.K. So who, who had the, what was the conversation, who spoke first? A. Um, Ken spoke first. Q103 And what did he say? A. Um, something oh, Ken spoke of um, we need a driver and we need someone who's gunna shoot, um, this was all referring to Ray Frangieh, um, apparently some fallout had happened and Ken was still pissed off at um Ray Frangieh. Q104 Did, did Ken explain why he was pissed off? A. Due to um, they were in the bedroom, but you could hear them from the living room um, as they were wiping down all the equipment. … Q109 Telling --- A. Yep, they were wiping down the um, and talking, and I can't distinctly remember what they were saying, but um, it was to do with the BMW, it was to do with the BMW. I can't remember what they were saying word for word, but it went something like um, like um, who does Ray think he is? Yeah, and they have, they had to do something about him. … Q111 OK. And oh did Ken, you said Ken said, we need a driver, we need a shooter. Did Ken ask, ask anyone to, if they wanted to do it, or were there volunteers, what was the next part of the conversation? A. Ken asked, Ken asked 'em, you know. Roy jumps up and goes, yeah, I'll do it, I'll do it, I'll do it, um, and um, I was sitting there, I never volunteered for nothin', I never volunteered um, to do anything, and they said, Chris, can you get us a driver? And to feel still part, to feel still part of the team I had to, I felt like I had to go, yeah OK, I'll get the driver. So it was my part to get the driver um, then Ken said that he'll pay him, pay the driver. … Q116 Did you see the guns while you were at Minnie Me's house? A. Yes. Q117 And where were they? A. In the bedroom with the guys. Q118 Which guys? A. With the guys, I think, earlier in the bedroom, which was Ken um, Minnie Me, Roy and Maroun. … Q127 And how did you know it was an M1? A. Oh, they kept talkin' about it all the time. Q128 Who's they? A. Roy, Ken um, Minnie Me and Maroun. Q129 And what were they saying about it? A. … was saying, ah, it's ancient … but it still handles business, like, it was ancient, like, it looked ancient, and when, when Minnie-me shot it he had to click something back before letting it go, and when it got stuck he was trying to click it, he'd click it, but it wouldn't, you know. … Q139 OK. And so they've wiped the guns down. What happened then, what, what happened to the guns then? A. Um, the guns then were put back into the bag um, and everything started to roll then, started motion, like, Ken said, OK, I'm gunna be at the casino so wait for this minute, right on this time, then go and do it, or whatever, like that. Q140 So did, did he, can you try and remember exactly what he said, like, what time he said to wait till and all that sort of stuff? A. Oh, he said, give it about twenty minutes, I should be in the casino by twenty minutes and um, you guys are free to go, yeah. … Q407 So when you got to Minnie Me's house --- [after the shooting] … Q468 [sic] --- what happened then? A. We took the guns inside the house um, … Q408 OK. And what did you do when youse got there? A. Waited for Ken and they wiped down the guns. … Q411 OK. And how long did you have to wait for Ken? A. About an hour, hour and a half or so. Q412 And what happened then? A. Ken came down and gave me some money to give to who he thought had drove, so I gave him the money. Q413 So what, what, what did Ken say to you, what was the conversation you had? A. He goes, Oh good, everything went all right … everything went all right? And I go, yeah I think so. He goes, and he asked um, the gun, the shooter, was the driver good? … Q414 Yeah. A. --- yeah, and um, but he goes, all right then, good, how many … he, he asked questions. Ken asked questions like you guys, like the coppers, really, really precise about things, you know what I mean, he's, he's a smart guy, man. You know, where was it shot? What, you know, how many rounds did you do? How many rounds was it before it jammed? 'Cause um, the guy who shot the thing said that it jammed, and Ken was saying, oh yeah, so how many rounds, whereabouts, what did it hit? Um … Q416 And then, so, OK, so Ken gave you some money. How much money did he give you? A. $500." 7 At Q.469 Lenati said that he did not understand what he would get from helping the police adding, "I don't mean that I don't want to help". He was then informed (at Q.471) that a court would take into account any assistance he gave the police and that without making any promises the investigators might seek total immunity with respect to his involvement in the enterprise. However he was also informed that the investigator could not personally give him any immunity but that that was something that could be looked at later on. After indicating that he was not concerned for his own safety but only for that of his fiancé, the following further questions and answers were recorded: "Q478 So, all right, and did he say anything, did Ken say anything else to you in that conversation? A. He did mention that, man, do you know what he was going to the police on me, he was going to the cops on me." 8 I mention the matters referred to in the preceding paragraph as Lenati was cross-examined by trial counsel for the appellant to suggest that he had been placed under pressure by the police interrogators to assist them and had therefore told them what they wanted to hear with respect to the appellant even though it was not true. 9 So far as Exhibit F was concerned, Lenati answered questions with respect to the time when he was at the home of Minnie Me's sister which included the following: "V.2 [Det. Sergeant Tzinberg:] OK. And then what did you do when you were here? V.3 [Lenati:] Ken was trying to organise who was going to be the driver, who was going to be the shooters and all that, for the night." 10 The other two witnesses were "Eddy" Latu (Latu) and Tevita "Deder" Fifita (Fifita). To a lesser extent than Lenati, they also implicated the appellant in the shooting. However, as I have noted, without the evidence of Lenati, their evidence would not have been sufficient to convict the appellant beyond reasonable doubt.

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11 The Crown was aware that Lenati would not be a co-operative witness because of two prior trials with respect to the subject charges that had been aborted. The trial judge was so informed, it being foreshadowed that Lenati would be called on the voir dire for the purpose of laying the ground work for an application by the Crown under s 38(1) of the Evidence Act 1995 (the Act) to cross-examine him with respect to the contents of what became Exhibits E and F. 12 It is convenient, therefore, to set out the provisions of s 38(1): "A party who called a witness may, with the leave of the court, question a 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 suppose 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." 13 The expression "prior inconsistent statement" is defined in the Dictionary to the Act to mean "a previous representation that is inconsistent with evidence given by the witness". 14 Lenati was examined on the voir dire. After being informed that he was in Court to give evidence in relation to the trial of the appellant in relation to charges involving the drive-by shooting at Frangieh's house in Merrylands on 25 September 2003 and on being reminded that he had been granted an indemnity provided that he actively co-operated in the proceedings brought against the appellant, he was then asked whether he had been in a flat (being that of the sister of Minnie Me referred to at [6] above) with, amongst others, the appellant on that date. The following exchange then relevantly took place between Lenati and the Crown Prosecutor: "Q. Were you in a flat at any time on 25 September 2003 with any of those persons I've just named? A. Not that I can remember. Q. Not that you can remember? A. No. … Q. Do you remember that drive-by shooting at all? A. Well I've put it all, you know, I've tried to dig it all up, but not that clear. HIS HONOUR: Q. No the question is do you remember the drive-by shooting at all? A. … No. Not to my knowledge your Honour. … CROWN PROSECUTOR: Q. Do you have any recollection of a drive-by shooting on 25 September 2003 at … Merrylands? A. Not that I can recall. … HIS HONOUR: Q. Mr Lenati you have given assurances to the community that you would cooperate in giving evidence? A. Yep. Q. In this matter and other matters. You are not making any effort whatsoever to remember any of those matters? A. Well I have your Honour. Q. I don't believe anything you've said about your loss of memory? A. Well it's not loss of memory, it's just that I've put it all, I've gone. You know, I've moved past it. … Q. Do you have any recollection of telling the police anything at any time about a drive by shooting on 25 September 2003? A. I told the police a lot of things while they were around me so that could be one of them. Q. Do you now not recall what you said to the police? A. I now stand by whatever is on the statements, whatever is there I stand by it." 15 Counsel then addressed the trial judge with respect to the Crown's application which, upon prompting by the trial judge, was extended to include an application under s 65 of the Act to admit at least parts of what became Exhibits E and F based upon this Court's decision in R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182. Relevantly s 65, which provides for an exception to the hearsay rule in criminal proceedings where the maker of a statement is not available, is in the following terms: "(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (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) … (b) … (c) … (d) against the interests of the person who made it at the time it was made." 16 Clause 4 of Pt 2 of the Dictionary to the Act relevantly provides as follows: "(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead; or (b) the person is, for any reason … not competent to give the evidence about the facts; or (c) … (d) … (e) all reasonable steps have been taken, by the parties seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or (f) all reasonable steps have been taken, by the parties seeking to prove the person is not available, to compel the person to give the evidence, but without success." 17 The application by the Crown on both grounds was hotly contested by trial counsel for the appellant who also submitted that even if the requirements of ss 38(1) and/or s 65(1) were satisfied, his Honour should nonetheless exclude the evidence pursuant to either his discretion under s 135 on the basis that it would be unfairly prejudicial to the appellant, or to s 137 upon the ground that its probative value was outweighed by the danger of unfair prejudice to the appellant. Reliance was also placed on s 192 which empowers the court when giving leave (including leave to cross-examine pursuant to s 38) to impose such terms on that leave as it thinks fit. 18 At the conclusion of argument, his Honour gave the following short judgment: "… the substance of the evidence is extremely probative and that the obvious unfairness of the situation can, to a very large extent, be cured principally by directions from me I understand but also by the sensitive and delicate way the Crown proposes to present the evidence and for that reason I have come to the conclusion, and for reasons that I'll give in due course, that the sections 65(2) apply but only to statements against interest and that in respect of those statement[s] that don't apply to that, then section 38 will apply. So that I propose to grant leave to the Crown to cross-examine on those matters that do not relate to statements, representations against interest and for those statements that do relate to representations against interest section 65(2) will apply …" 19 The trial judge then foreshadowed that he would give more detailed reasons in due course, which he in fact did on 27 October 2006 after the conclusion of Lenati's evidence before the jury. 20 The appellant does not challenge the grant of leave by the trial judge to the Crown to cross-examine Lenati pursuant to ss 38(1) and (2) of the Act. His Honour concluded that Lenati fell within each of the sub-paragraphs of s 38(1), which I have set out at [12] above. He also rejected the appellant's attempts to resist the grant of leave to cross-examine Lenati on his ERISP founded on ss 135, 137 and 192 of the Act. No challenge is made with respect to his Honour's findings in relation to his rejection of the appellant's reliance upon those provisions. 21 However, it is important to note that with respect to his Honour's consideration of ss 135 and 137, he said: "… In general one could say that unfair prejudice arises from the use by a jury of evidence in some unacceptable manner. There is, of course, serious prejudice to both parties in granting leave pursuant to s 38 to cross-examine Lenati on his statements and interviews. But this prejudice is not unfair per se. It tends to establish and strengthen the Crown case. However, there is also a level of unfair prejudice in refusing to exclude Chris Lenati's evidence, or in granting leave pursuant to s 38. Much of the evidence is not in the proper form. The accused will probably be unable to test effectively Lenati's evidence in cross-examination. Detective Flood is not available for cross-examination as to the circumstances in which the statements and the ERISP were created, though Levy was also present and is available for cross-examination. The presence of Levy weakens the area of unfairness but of course does not remove it. Furthermore, this is evidence of an accomplice which may be given more weight by the jury than it deserves. However, on the other hand, Lenati's evidence is of considerable value; it is central to the issues; it is corroborated by Fifita and Eddy Latu; it is detailed and clear. It was recorded four and a half months after these dramatic events. In these special circumstances, any decision is a delicate exercise. In my estimation, the probative value of Lenati's evidence outweighs the real danger of unfair prejudice which I consider can be cured by judicial directions. I propose to grant leave, pursuant to s 38, for the Crown to cross-examine Lenati on his statements and interviews, subject to any dispute as to individual passages or specified questions and answers." 22 The trial judge then turned to the Crown's application under s 65 noting the appellant's submission that the Crown had asserted two contradictory or inconsistent propositions, namely, that on the one hand Lenati was available to give evidence and could be cross-examined by the Crown pursuant to s 38; but on the other that Lenati was unavailable and therefore the provisions of s 65 were engaged. The trial judge then continued: "I pause to observe that a witness may be physically available and present in the witness box but legally unavailable pursuant to clause 4(a) of the Dictionary in the Evidence Act . I refer to the decision of the Court of Criminal Appeal in The Queen v Suteski . Tan does not concede that Lenati is unavailable as defined in clause 4(1)(f) of the Dictionary and therefore the Crown must rely, according to Tan's submission, only on s 38, and not on s 65. It was submitted on his behalf that in Suteski the witness did not give evidence, that he refused to answer questions, whereas in this case, Lenati has been in the witness box on the voir dire, he has given some evidence, he has stated that he does not remember. He has also asserted that he stands by the statements he made to the police and consequently, it was submitted, the Crown has succeeded in Lenati giving evidence, and that he will continue to give evidence, albeit, perhaps unsatisfactorily. I pause to observe that Lenati cannot now know that what he said to the police in February 2004, for example, is the truth, since he does not now remember anything of those events. He cannot say that the statements he made to the police were true, and at the same time not remember anything about which he gives evidence. He has effectively refused to give evidence, just like the witness in Suteski , and I have concluded that, like Suteski , he is unavailable." 23 Later in his judgment, his Honour returned to the question of Lenati's availability, observing that under questioning on the voir dire he had asserted total failure to remember. His Honour considered it inconceivable that having been confronted with the fact that he had been granted immunity and diminished sentences provided he gave evidence in accordance with his prior statements to the police, he should now assert a complete loss of memory of the events in question including his central participation in them. His Honour observed that it offended common sense that Lenati could provide the detailed statements he did and then suffer complete amnesia. In these circumstances, he found that all reasonable steps had been taken to compel Lenati to give evidence without success. His Honour therefore confirmed his earlier finding that Lenati was unavailable in a manner analogous to the witness in Suteski. 24 The trial judge then turned to whether the Crown had established that the representations of Lenati upon which it wished to rely were against Lenati's interests at the time they were made within the meaning of s 65(2)(d) of the Act. He concluded that: "… many of Lenati's representations to the police on the subject of these incidents were, when he made them, against his interests, against his reputation and exposing him to a claim for damages, for the damage caused in the drive-by shooting or for his involvement in the firing of [sic] the car." 25 His Honour then turned to the provisions of ss 135, 137 and 192 of the Act. As to ss 136 and 137, he said: "… As I have observed there is some danger that the evidence of Lenati might be used in some unacceptable manner by the jury: for example, by giving it weight it cannot bear, for example because Lenati has not been confronted by and exposed to cross-examination. However, his evidence, even in the form it is proposed to be presented to the jury, is very weighty and of considerable probative value. The extent to which his evidence could rationally affect the jury's assessment of the probability of the existence of all the facts in issue, is both considerable and substantial, in my opinion. I consider that the probative value of his evidence is not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused, or by any danger that the evidence might be misleading or confusing. Furthermore, I consider that the probative value of his evidence is not outweighed by the danger of unfair prejudice to the accused. Any unfair prejudice can be cured by specific judicial directions. The Court must have confidence in a jury's commonsense, in its robust, shared wisdom and its willingness to follow directions."

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Lenati's evidence before the jury 26 After some short evidence in chief elicited by the Crown Prosecutor, a formal application was made for leave to cross-examine the witness with respect to contents of the ERISP of 22 February 2004. That application was granted and the Crown Prosecutor then cross-examined Lenati. Notwithstanding his stated inability to remember the matters that were put to him, he nevertheless asserted that he was attempting to tell the jury the truth. Thus, when asked whether he participated on 25 September 2003 in a drive-by shooting at the relevant address in Merrylands, he responded "Not that I can recall". When it was suggested to him that he did recall what happened but was just not prepared to give evidence about it, Lenati responded: "I say I'm prepared to give evidence on the statements I have made." 27 The Crown Prosecutor then made an application to the trial judge to present evidence of prior statements by Lenati in relation to the shooting, to which his Honour responded that he had already made a decision to grant leave "whether it be under s 38 or s 65". 28 After some further questioning by the Crown Prosecutor, the Crown then tendered the videotape of the ERISP of 22 February 2004, which his Honour admitted as Exhibit E1. In so doing he advised and directed the jury that the relevant evidence was the tape and not the edited transcript thereof that was provided to the jury as an aide memoire. His Honour also informed the jury that they would have a machine in the jury room where they would be able to play the tape and "watch it again". The Crown Prosecutor then read from the transcript of the tape after which the videotape was played in the presence of the witness and the jury. A short time later the videotape and transcript of the drive around interview of 10 September 2004 were tendered and admitted as Exhibit F and the tape was then played in the presence of the witness and the jury. 29 The following exchange then took place: "Q. I'm asking you whether you had a good recollection - obviously having viewed the first interview with police in New Zealand, you had a very good recollection of that drive by shooting when you were talking to police in February 2004 didn't you? A. Yeah I guess. … Q. The point is that you haven't forgotten the incident now have you? A. When watching that, what comes to my mind is just different things like. I guess it's like I remember different things right now by watching that piece of video." 30 When asked whether he was prepared to tell the jury who else was involved in the drive-by shooting, Lenati responded in part: "… I'm prepared to tell the jury like what my - like how I came to be this way and I think at the present time I feel like - like watching that, that footage there, I see a guy that's surrounded by police, constantly - I see a guy that's trying to please the police. I see myself there as a guy always on cocaine. And what flash - what flashes back to my memory is, is Papa Smurf. It's like [it] just never happened, it's like a movie for me you know like - the interview in New Zealand was - I couldn't even remember drawing things and just seeing myself again there. It's like, I don't know, inside me my whole - my whole system like shuts down. …" 31 A little later the following further exchange occurred: "Q. ---are you prepared to tell the jury who else was involved with you in the commission of the drive-by shooting on 25 September 2003. Yes or no would do? A. And this is what I tell you Mr Crown. I'm prepared to stand by that but when I search my memory and stuff, it's not trying to be evasive, it's not trying to be anything else, it's trying to like you know, when you say am I prepared to do this, man I'm prepared to do whatever - whatever I can do you know. Q. Can we just be clear about this. Do you say that you have no recollection now independent of what you see, on those two videos of this drive-by shooting or do you recall what happened? A. No I don't recall what happened like from present memory but watching that it triggers off different memories." 32 When asked whether any police officer had told him to lie before, during or after either of the two videos, he responded "Not that I can recall". 33 Lenati was then cross-examined at some length by trial counsel for the appellant. In fact that cross-examination extended over some 80 pages of transcript. The reading of it bears out the remarks of his Honour during the course of that cross-examination to the effect that he was amazed that the appellant's counsel had been able to rekindle so much of the witness's memory. There was also little doubt that he responded to the cross-examiner's questions in a manner favourable to the appellant. This is exemplified by the following exchange: "Q. You said when the police spoke to you on 22 February that Ken Tan was at the sister's shooter's house at Hulme Highway. I've read to you parts of the transcript in which you say that. Is part at least of the reason why you got the people - the names of the people who were at that meeting in part, because you knew that it would help you to add Ken Tan's name to the list? A. Yeah. Q. Ken Tan wasn't at that meeting was he, at Hulme Highway, Enfield, that's right isn't it? A. Not that I can recall." 34 Again, the following exchange exemplifies the same point: "PATCH: Exhibit F, thank you. Q. You say - there's a question, "So who actually asked you to do the shooting?" Answer, "Ken, but he asked me to organise the driver". You see that? A. Yep. Q. And Ken Tan didn't ask you to organise a driver did he? A. Not that I can recall. Q. Ken Tan didn't ask you to organise anything at all that night did he? A. Just what I said here on the paper.

[23]

Ground 1: The trial judge erred by admitting into evidence Exhibits E and F 39 The appellant submitted that his Honour was in error in admitting Exhibits E and F to the extent to which their admission was based upon his finding that Lenati was not available to give evidence within the meaning of s 65(1) of the Act. In particular, it was submitted that Lenati was not unavailable within the meaning of cl 4(1)(f) of Pt 2 of the Dictionary to the Act in that that provision had no application to the present case where the witness had entered the witness box and responded to the Crown's questions by asserting that he had no recollection of what was being put to him. His Honour considered that the witness's assertion that he had a complete loss of memory of the events in question, including his participation in them, was "inconceivable". In other words, he did not consider that the witness was telling the truth when he asserted his amnesia. However, failing to tell the truth in the witness box did not, it was submitted, constitute relevant unavailability for the purpose of s 65(1). 40 Nevertheless the trial judge considered that the appellant had effectively refused to give evidence, as had the witness in Suteski, and that accordingly, as in that case, he was relevantly not available to give evidence about the facts relating to the drive-by shooting. However Suteski was a case where the relevant witness simply refused to give any evidence at all. The witness was in prison at the time of the trial, serving the sentence which had been imposed on him for his part in the attack on the victim, the subject of the charge of which Suteski was found guilty. He had refused to give evidence at the committal hearing and adopted the same position at trial notwithstanding the caution given to him that he risked punishment for contempt of court. The witness made it clear during a voir dire enquiry, and also in the presence of the jury, that he would not give any evidence beyond stating his name. 41 In the foregoing circumstances of Suteski this Court upheld the trial judge's finding that the witness relevantly fell within cl 4(1)(f) as a person in respect of whom all reasonable steps had been taken to compel him to give the relevant evidence, but without success. 42 Returning to the present case, in the course of argument two further authorities were referred to. The first was the decision of this Court in Brown & Ors v R [2006] NSWCCA 69 where the Crown relied on cl 4(1)(b) of Pt 2 of the Dictionary in support of an application under s 65. In that case the relevant witness suffered from significant brain damage and, due to his level of cognitive impairment, was found by the trial judge to be not competent to give evidence within the meaning of s 13 of the Act. 43 On appeal there was a challenge to her Honour's finding under s 13 that the witness lacked competency within the meaning of that provision. It was pointed out (at [24]) that s 13 spoke of incapacity of understanding an obligation to tell the truth, incapacity to give a rational reply and incapacity of hearing, understanding or communicating, concepts which are radically different from those involving simply an absence of, or imperfection in, knowledge or recollection of events. 44 As this Court found (at [25]) that the witness's evidence did not reveal any incapacity to understand the questions he was asked or to communicate answers to them so that the lack of competency or capacity tests referred to in s 13 were not satisfied, it followed that the foundation of the trial judge's decision to admit the impugned evidence upon the basis that the witness was not available to give evidence about the relevant asserted fact was incorrect. As the present case does not involve any lack of competency on the part of Lenati, I therefore find no assistance in Brown as to the proper construction of cl 4(1)(f). 45 Reference was also made to the decision of Simpson J in Cox v State of New South Wales [2007] NSWSC 471; (2007) Aust Torts Reports 81-888. This was a case where the plaintiff claimed damages for personal injuries as a consequence of a breach of the duty of care owed to him by agents of the State. He alleged that as a consequence of that breach he suffered, and continued to suffer, severe emotional, psychological and psychiatric injuries. 46 The plaintiff's mother gave the principal evidence in relation to the events constituting the foundation of his claim as the plaintiff himself, due to his injuries, had no recollection of the events in question. The plaintiff's mother was not a witness to the relevant events and her evidence was informed by what had been told to her by the plaintiff from time to time. It was therefore hearsay evidence and prohibited by s 59 of the Act unless subject to one of the exceptions to the hearsay rule. 47 Reliance was placed upon the exceptions referred to in ss 63 and 64 of the Act, which are in the same terms as s 65(1) but apply to civil proceedings, whereas s 65 applies to criminal proceedings. Those sections call up the provisions of cl 4(1) of Pt 2 of the Dictionary as to the circumstances when a person is taken not to be available to give evidence about an asserted fact. 48 However, as in Brown, reliance was placed in Cox upon the provisions of cl 4(1)(b) which related to the competency of the relevant person to give evidence about the asserted fact. The plaintiff, when asked about the events the subject of his claim, responded that he had no recollection. The defendant, who resisted the admissibility of the evidence of the plaintiff's mother, argued that this was a rational reply and that it could not therefore be concluded that the plaintiff was not available to give evidence. 49 Simpson J ruled to the contrary. In her reserved judgment on the plaintiff's claim she dealt with the present issue in the following terms: "16 I concluded that this approach was erroneous. The 'rational replies' that the plaintiff was able to give were not replies to questions about facts relevant to his claim, but were about facts relevant to his recollection. Once he replied that he had no recollection of the events, it had to be concluded that he was not capable of giving a rational reply to questions about those facts. That he was capable to giving rational replies to questions about his recollection is beside the point; the argument focussed upon the wrong fact. It is to be remembered that s63 applies where a person who made a previous representation is not available to give evidence about an asserted fact . The ' asserted facts ' are the assertions about what was done to him by TH. He was not able to give rational replies to questions about those asserted facts." 50 I do not regard either of the decisions referred to as being of direct assistance in resolving the issue in the present case which relates to the circumstances in which cl 4(1)(f) of Pt 2 of the Dictionary may be engaged. However, what they do illustrate is first, that lack of competency in the sense referred to in s 13 of the Act falls within cl 4(1)(b) rather than cl 4(1)(f) to the point of mutual exclusivity and, second, the fact that a witness is incapable of giving a rational reply to questions about an asserted fact is to be dealt with under cl 4(1)(b) and not cl 4(1)(f). 51 The distinction to be drawn between the present case and those referred to is whether a relevant witness has a genuine inability to recollect the asserted facts and is unable to give rational replies to questions about those facts. That is to be contrasted with a witness who simply refuses to answer questions about asserted facts, not because he or she does not recollect them but because he or she simply does not wish to respond to the questions asked. In the present case Lenati had asserted in his voir dire evidence to which I have referred at [14] above, that he had no recollection of the drive-by shooting not so much because he suffered from loss of memory but because he had "moved past it". 52 As I have indicated, the trial judge considered Lenati's complete loss of memory to be "inconceivable". I take that to be a finding that he did not accept his evidence that he in fact had no memory of the events in question but that his stance was one whereby, rather than standing mute when asked questions, he intended to respond to them by relying on his alleged loss of memory. As such, as I understand his Honour's reasoning, he was in no different position to the witness in Suteski who made it clear that he was not prepared to answer any questions with respect to the events in question. 53 Lenati was a witness who did not fall within cl 4(1)(e) as he did attend to give evidence at the trial. However, despite his attendance in circumstances where he was prepared to enter the witness box and answer questions, nevertheless he exhibited an intention to answer those questions by claiming that he was unable to remember anything. In other words, in the trial judge's perception he was prepared to lie. 54 The critical question is whether in the foregoing circumstances, all reasonable steps had been taken to compel Lenati to give the evidence but without success. The appellant submitted at trial that the mere fact that a witness did not come up to proof or responded to questions, albeit untruthfully, by claiming lack of recollection, was a situation which engaged s 38 of the Act rather than s 65. 55 In the present case there could be no doubt, and it was not contested on appeal, that s 38 was engaged at least upon the ground that Lenati was a witness who was not, in examination in chief, making a genuine attempt to give evidence by way of a truthful response to the questions he was asked. It was submitted by the appellant that in those circumstances ss 38 and 65 were mutually exclusive. In my opinion, this submission should be accepted. 56 The question of construction of cl 4(1)(f) in the present factual context is a matter of some difficulty. To a point, common sense would seem to indicate that a person in the witness box who responds to questions in an untruthful manner by claiming lack of recollection would, prima facie, be a witness in respect of whom all reasonable steps had been taken to compel him to give evidence but without success. However, having considered cl 4(1)(f) in the context of the other subparagraphs of cl 4(1), as well as s 38, I have concluded that that provision was not engaged in the present circumstances. 57 Had Lenati entered the witness box but refused to answer any questions at all upon pain of being held in contempt, then clearly reasonable steps would have been taken to compel him to give evidence but without success. It seems to me that that is the type of situation to which cl 4(1)(f) is directed: see Suteski. But in my view it is not directed to a situation such as the present where a person enters the witness box, is prepared to respond to questions but does so in an allegedly untruthful manner by claiming lack of recollection or loss of memory (not due to s 13 incompetency). Those circumstances more aptly fall within s 38(1)(b) as clearly Lenati was a witness who was reasonably supposed to have knowledge of the drive-by shooting but did not, in examination in chief, make a genuine attempt to respond to the questions asked of him. 58 I find support for this proposition in the observation of Wood CJ at CL in Suteski (at 197 [101]) that s 65(2) assumes that the maker of the representations is not available for cross-examination. Such would be the case where that person refuses to enter the witness box as in Suteski. It would not be so in a case such as the present where Lenati was available for cross-examination by not only the defence but also the Crown pursuant to leave granted under s 38(1) and was so cross-examined. 59 Two further points need to be made. First, the only previous out of court representations relevantly rendered admissible under s 65(2) in the present case were those which were against Lenati's interests: s 65(2)(c). Further, insofar as Lenati's ERISP included representations other than those against his interests (such as those implicating the appellant), his Honour determined that s 38 would apply thereto so that leave would be granted to the Crown to cross-examine upon them. 60 Second, s 65, where applicable, does not mandate the admission of the previous out of court representations to which reference is made in s 65(2). It merely provides that they are exempted from the hearsay rule. The representations thus assume the same status as any other relevant evidence in that, although admissible, their admission is subject to the exclusionary provisions of ss 135 and 137. 61 Having made these comments, nonetheless the trial judge erred insofar as he determined that Lenati's previous out of court representations against his interests were admissible under s 65(2)(d) as he was not a person who was not available to give evidence about an asserted fact within the meaning of s 65(1).

[24]

The Crown's alternative argument to support the admission of Exhibits E and F 62 Nevertheless, the Crown submitted that even if the trial judge was in error in admitting Exhibits E and F pursuant to s 65 of the Act, he was still entitled to admit them without resorting to that provision. Reliance was placed upon the decision of the High Court in Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96. In that case the prosecution in a murder trial was granted leave to cross-examine its own witness about prior inconsistent statements made to the police. The statements were admitted as evidence of the truth of what was said in them. It was held by Gleeson CJ, McHugh, Kirby and Hayne JJ that the trial judge's discretion in granting leave to cross-examine had not miscarried and that the evidence of the witness's previous statements could be led as evidence of the truth of their contents on the grounds that first, the evidence was relevant to matters in addition to the credibility of the witness and therefore fell outside s 102; and second, having been admitted for purposes which included an attack on the credibility of the witness, the evidence fell within the exception to the hearsay rule provided by s 60. 63 Sections 60 and 102 of the Act are in the following terms: "60. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. … 102. Evidence that is relevant only to a witnesses credibility is not admissible." 64 Under the heading "Propriety of reception of a prior inconsistent statement", the plurality in Adam observed (at 104 [19]): "What is important, however, is that, under the Act, evidence of a witness's prior inconsistent statements will be admitted as evidence of the truth of what was said in them if the evidence is relevant for another purpose (that is, for a purpose other than proof of the truth of what was said in them [see s 60]. If admitted as evidence of the truth of its contents in this way, there would be no tender of a statement 'inadmissible to prove facts against the accused' and there would, therefore, be nothing improper in adopting the course proposed. This may be contrasted with the common law position where a prior inconsistent statement is not evidence of the truth of its contents, only evidence that the witness may not be telling the truth. …" 65 Under the heading "Credibility rule", their Honours observed (at 107 [31]) that the principal thrust of the appellant's argument was that the credibility rule (s 102) applied to exclude the evidence of the prior inconsistent statements to the police and that the exception to that rule in s 103 did not apply. This submission and those that complemented it, were rejected (at 108) in the following terms: "33. … They focus on the use that is to be made of the evidence. The relevant provisions of the Act direct attention, in the case of the credibility rule in s 102, to how the evidence is relevant and in the case of the exception in s 103 to the credibility rule, to whether the evidence has "substantial probative value". Section 102 deals with evidence "that is relevant only to a witness's credibility". Section 103 provides that that rule does not apply to evidence adduced in cross-examination if the evidence "has substantial probative value".

[26]

These contentions should be rejected. The criterion of operation of s 102 is the relevance of the evidence, not any question of its admissibility. The appellant's contention, that evidence not admissible on any basis other than credibility is excluded by the credibility rule, can be seen to amount to a proposition that evidence which is not admissible, is not admissible. … Rather than adopt this rewritten version of the statutory rule, effect should be given to s 102 according to its terms. Thus attention must be directed to how the evidence in question is relevant. Is it relevant only to a witness's credibility?" 66 In Adam the appellant had submitted that reading s 102 according to its terms would produce a bizarre result. Their Honours also rejected this contention in the following terms (at 108-109): "36. … The example given by the appellant in aid of this contention was of a witness's prior inconsistent statements, relevant as bearing upon facts in issue in the proceeding other than the credibility of the witness, which would be inadmissible as evidence of the truth of its contents by operation of s 59, as hearsay. This, so the argument proceeded, would not be caught by s 102 and would, therefore, be admitted as evidence of the truth of its contents by s 60. That is, not being evidence relevant only to the witness's credibility, s 102 would have no operation. Because, however, the evidence would be relevant both for the purpose of considering the witness's credibility and proof of the facts which the witness had intended to assert in the out of court statements, the hearsay rule would not apply (s 60)." 67 Their Honours then noted (at 109 [37]) that the operation of the Act and the example given was correctly stated and although it differed from what would result at common law, that difference was brought about by s 60 which was one of the significant alterations in the rules of evidence that the Act was intended to effect. 68 Their Honours then concluded (at 109 [38]) that once it was decided that the prosecution could cross-examine the witness about his prior statements, the evidence of those statements was admissible as evidence of the truth of their contents. That result followed from the following steps (at 109 [39]):

[30]

(d) The evidence being relevant for purposes which included the attack on the witnesses' credibility, but which extended to its direct relevance to the facts in issue, it was therefore within the exception to the hearsay rule provided by s 60 and admissible as evidence of the truth of the contents of the statements. 69 In the present case the Crown submitted that the steps to which I have referred were all satisfied. Lenati had given prior inconsistent statements relevant to his credibility, which were also relevant to other issues in the Crown case. Because the evidence of what he had said in those statements was relevant to more than his credibility, the credibility rule in s 102 was not engaged. The evidence, being relevant for purposes which included the attack on Lenati's credibility but which extended to its direct relevance to the facts in issue, was therefore within the exception to the hearsay rule provided by s 60 and admissible as evidence of the truth of the contents of the statements. Consequently Exhibits E and F were properly admitted. 70 Finally, it was submitted on the authority of Brown (at [29]) that the fact that his Honour had admitted Exhibits E and F on an incorrect basis was irrelevant if otherwise they could be properly admitted on some other basis. That basis was founded in the High Court's decision in Adam. 71 The appellant responded that although Adam provided a basis upon which his Honour could have admitted Exhibits E and F, it was not inevitable that, if he had not relied upon s 65, he would have admitted those exhibits. In particular, his Honour may well have dealt with the issue of admissibility in a different manner and, significantly, may have approached the discretionary or mandatory powers of exclusion under ss 135 and 137 from a different perspective and with a different result. 72 It is important to note that the High Court in Adam specifically held that, given its findings with respect to the effect of s 60, it was unnecessary to consider the operation of the exception to the credibility rule provided by s 103 which provided an exception to the hearsay rule if the evidence sought to be adduced had "substantial probative value". The appellant conceded that in light of the authority of Adam, s 103 was not directly relevant. Nonetheless, it was submitted that when the question of the reliability of the contents of Exhibits E and F was considered, the delay which had occurred between the events in question and the statements made by Lenati to the police (which was a relevant consideration under s 103(2)(b) to the question of whether the evidence had substantial probative value), was of particular relevance. Although the foregoing formed part of the appellant's written submissions, it was not expressly elaborated upon in oral argument. 73 As I understand the appellant's submissions, he sought to make two points. The first, as already noted, was that had the trial judge been requested to admit the subject statements to the police pursuant to the decision of the High Court in Adam, then he would have, or at least may have, approached his consideration of the matters referred to in ss 135 and 137 from a different perspective. The second, which I think is allied with the first, accepted the proposition that the contents of Exhibits E and F could have been cross-examined into evidence by the Crown and the videotapes could have been played to Lenati in the presence of the jury as part of the cross-examination process. However, to then admit the videotapes as exhibits was unnecessary and could only serve to prejudice the appellant by enabling the jury to replay the tapes unsupervised in the jury room and so to use them in an unfair manner in circumstances when they should have been concentrating on Lenati's oral evidence with respect to their contents. Accordingly, there was a miscarriage of justice. 74 The appellant conceded in oral argument that the nub of his appeal was not that s 38 was improperly invoked or that the contents of Exhibits E and F were improperly cross-examined into evidence or that there was error in the videotapes being played to the witness in front of the jury as in fact occurred. He contended that the tender of Exhibits E and F in circumstances where the Crown had informed the jury in its final address that they could play the tapes as often as they liked in the jury room created unfair prejudice to the point where, either as an exercise of discretion under s 135 or in accordance with the mandatory provisions of s 137, the tender of Exhibits E and F should have been refused on the ground that their probative value was outweighed by the danger of unfair prejudice to the appellant. 75 Although it was accepted that his Honour in his judgment of 27 October 2006 considered both provisions, it was submitted that he did so against the background of Lenati's ERISP statements to the police being admissible pursuant to s 65. Had they only been admissible in accordance with the decision in Adam, then different considerations in terms of their exclusion under either ss 135 or 137, may well have been taken into account with a different outcome. When asked what those considerations might have been, the appellant responded in these terms: "The potential prejudice of additional weight that a video representation of the evidence would have were it to be in the jury room and played to the jury's hearts content." 76 In support of the foregoing the appellant referred to the decision of this Court in R v GAC (NSWCCA, 1 April 1997, unreported). In that case, the trial judge, applying the provisions of ss 38, 60 and 66 of the Act, permitted the Crown to cross-examine a witness who had made a prior statement to the police about a homicide but who had professed at trial to have no memory of the events, and then tendered in evidence that witness's prior statement. Gleeson CJ (with whom McInerney and Sully JJ agreed) held that the trial judge did not err. In that case the trial judge had applied s 66 of the Act which provides an exception to the hearsay rule where the evidence of the previous representation is given by the person who made it or a person who saw, heard or otherwise perceived it being made, provided that when the representation was made the occurrence of the asserted fact was fresh in the memory of the person who made the representation. 77 The Chief Justice agreed with the trial judge that by virtue of ss 60 and 65 of the Act, the contents of the witness's earlier statements to the police were admissible in evidence subject to considerations of unfairness or unfair prejudice. For his part he did not regard the probative value of the interviews that led to the making of the statements as being outweighed by unfair prejudice to the accused. 78 In relation to the trial judge's decision to admit the videotape of the interview in circumstances where a substantial part of its contents had already been put before the jury in questioning of the witness by the Crown Prosecutor, the Chief Justice observed that the trial judge "had to consider an argument that it was unfair for the Crown to have the benefit of the added weight which would come from the jury having a tape, as well as the impression of the oral evidence. His Honour took this into account, but pointed out that it was desirable that the jury should have available the full context of the interview so that they could evaluate questions and arguments concerning the manner in which the interview was conducted. The conclusion that it was proper to admit the video tape has not been shown to be in error." 79 The appellant submitted that the argument before the trial judge to which the Chief Justice referred was not one considered by the trial judge in the present case. In particular, his Honour had not considered whether it was desirable that the jury should have available the full context of the Lenati interviews so that they could evaluate questions and arguments concerning the manner in which the interview was conducted. This was an odd submission given that the cross-examination of Lenati by the appellant's trial counsel was in part directed to that very matter. 80 It is true that there was no reference to any such consideration in the trial judge's consideration of ss 136 and 137, which I have set out at [21] and [25] above. Certainly, his Honour considered the danger that the jury might use Lenati's evidence in some unacceptable manner by giving it weight it could not bear because the witness had not been confronted by and exposed to cross-examination. This notwithstanding, his Honour considered Lenati's evidence in the form in which it was proposed to be presented to the jury, namely, in the form of a videotape, to be very weighty and of considerable probative value. His Honour further observed that "special judicial directions" could cure any unfair prejudice. 81 One of the difficulties was that the trial judge admitted Exhibits E and F during the course of the Crown's cross-examination of Lenati and before he was cross-examined on behalf of the appellant. At that point the appellant had not revealed his hand as to the line of cross-examination his counsel proposed to take. It was submitted that that line of cross-examination might have been different to that which was in fact taken had the tapes not been admitted as exhibits. 82 The appellant's cross-examination of Lenati generally proceeded along two lines. The first was to cross-examine the witness to suggest to him that what he had said in the police interviews was incorrect: see for example, [33] and [34] above. The second, which was pursued with some repetition, was to suggest to him that the police had held out to him that he would profit personally from implicating the appellant, whom the police regarded as a "very bad man". Thus, in addition to the exchanges which I have recorded at [35] and [36] above, the following evidence further exemplifies the cross-examiner's objective: "Q. So by that do you mean that the police outside of these recorded interviews let you know in one way or another that they would like you to say things about Ken Tan? A. Well Ken Tan was mentioned always on, before they even came to New Zealand, the phones and that.

[41]

Q. And the combination of all of these things, your fear of being shamed, your fear of being punished, your fear of being - well no, your fear of being punished and going to gaol for along time, your fear or your knowledge that the police suspected you of involvement in some very serious crimes and your vulnerability because of your drug situation, all of those things made you very open to suggestion by the police before you were interviewed - before the electronic interview, that's right isn't it? A. Yeah." 83 It is clear from the foregoing that it was being suggested to Lenati that in his interview on 22 February 2004, he was doing no more than the bidding of the police. It was put to him on behalf of the appellant's co-accused that he was a "police puppet", with which he agreed. 84 In his summing up the trial judge pointed out to the jury that it had been suggested by trial counsel for the appellant that the three Crown witnesses, Latu, Fifita and particularly Lenati, had been "put upon" by the police to tell lies at their interviews. 85 However, the appellant submitted that had the videotapes not been admitted into evidence his trial counsel might not have cross-examined Lenati in the manner and to the extent that he did. It was in fact submitted to the trial judge that part of the danger of the unfair prejudice to the appellant in admitting the videotapes was that a practical decision would need to be made as to whether to cross-examine Lenati in a manner that would open up the issue as to why he changed his evidence from what he had told the police in the interviews to his lack of recollection at trial of the events in question. It was submitted that if that line of cross-examination did not occur, there was a danger of the jury being left with no explanation of aspects of Lenati's answers in the interviews which "would be fertile ground for speculation in the jury room" which could result in the evidence being misused by the jury. 86 Trial counsel acknowledged that there was a useful ground for cross-examination but was concerned that if it was pursued, the Crown would have the opportunity in re-examination to cross-examine their own witness to re-establish his credit. Hence there would be unfairness. 87 There is no doubt that the appellant's trial counsel was required to make a judgment call as to whether or not to cross-examine Lenati on the contents of the videotapes. There was nothing unusual about this and the counsel concerned was an experienced member of the criminal bar. Had the videotapes not been admitted, there could be little doubt that so much of their contents as was relevant to the Crown case would have been cross-examined into the record by the Crown prosecutor pursuant to the leave granted under s 38 of the Act. The dilemma, if such it be, of the appellant's trial counsel would therefore have existed whether or not the videotapes themselves had been admitted as exhibits. 88 Accordingly, I am not prepared to accept that the cross-examination of Lenati on behalf of the appellant would have been any different to that to which in fact occurred even if the videotapes themselves had not been admitted into evidence. As it happened, part of their contents had been cross-examined into the record by the Crown and the videotapes had been played to the jury in the presence of Lenati. Furthermore, given the nature and extent of that cross-examination, it seems to me that even if the videotapes had not been tendered during the course of the Crown's cross-examination of Lenati, they would have been tendered by the Crown at the conclusion of his cross-examination by the appellant's trial counsel and would have been properly admitted by the trial judge. 89 It is also important to note, as I have already observed, that the trial judge only admitted the videotapes under s 65(2) to the extent to which they contained representations by Lenati against his interests. Even if he had rejected that limited tender on the basis that s 65 was not engaged, the Crown would no doubt have tendered them, as I have said, at the conclusion of Lenati's cross-examination. Had trial counsel for the appellant then sought to have had them excluded pursuant to ss 135 and 137, I am confident that his Honour would have taken into account the same considerations as he did when he dealt with the submission that they be excluded at the conclusion of the voir dire and with the same outcome. 90 The trial judge summarised, with the agreement of trial counsel for the appellant, the latter's submissions that the videotapes be excluded pursuant to ss 135, 137 and 192 in the following terms: "… Then we had a s 192, 137, 135 argument about fairness. You made about six points on fairness. The first one was that Lenati could not remember the least detail of critical events so the evidence would merely amount to general adoption on affirmation by the contents of the ERISP. They were not details that were sworn to on evidence. Your second submission was that much of the evidence in the ERISP is not in the proper form and therefore, inadmissible in that form and the usual procedure of police is to take a statement. This was not a statement, it was an ERISP and it was - that if offended the usual procedure and that was unfair because it contained a lot of inadmissible evidence. Your third submission was that the witness['s] failure to [re]call any of his involvement in the incidences charged would be impossible to cross-examine so you'd be unable to test his evidence. Your fourth submission was that he is not an independent uninterested witness but participated in a joint criminal enterprise. And your fifth one was that Lenati had a meeting with Detective Flood who is now not available and there was some discussion about whether there was an independent statement on 20 and 21 February. Now is there anything more you want to say about that?"

[48]

■ The probative value of the evidence is further reduced as Lenati was an accomplice and that the possibility of total immunity and other assistance from the authorities was held out to him. 92 Counsel then submitted that the probative value of the ERISP was slight but that there was a real and great danger that it might be unfairly prejudicial. He concluded his submissions in the following terms: "And I submit that the probative value of the evidence in light of the accumulation of those factors is relatively slight when compared to the danger of unfair prejudice. The danger of unfair prejudice is that the jury will reason that because this man is - they might reason. Because he's says things to the police and they've been recorded and he's sitting there apparently answering questions in a spontaneous way, that they should - that that's the sort of evidence that should be readily believed. They might give it - the danger is that they might give it weight which it does not deserve. And that's a recognised sub-species so to speak of unfair prejudice. So - and they might reason because he said things about Ken Tan repeatedly that he's therefore to be believed. So the danger of unfair prejudice is real and obvious when weighed against the probative value the danger of unfair prejudice outweighs its relatively slight probative value. …" 93 The relevant principles relating to the operation and application of ss 135 and 137 are well established. They were summarised in Suteski by Wood CJ at CL in the following terms (at 199): "116 As is now well established, the prejudice to the defendant of which each of s 135 and s 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather it means damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: R v Lisoff [1999] NSWCCA 364; and see also R v Lockyer (1996) 89 A Crim R 457 at 460, Papakosmas v The Queen (1999) 196 CLR 297 at para 91 and R v Serratore (1999) 48 NSWLR 101 (at 109). Dunford J there said that evidence is of this character, where it ' has only a slight probative value, but which carries with it a probability that it will be misused by the tribunal of fact in a way logically unconnected with the issues in the case '. 117 There must be more than a hypothetical risk of it being unfairly prejudicial in this way - the risk must be a real one: R v GK (2001) 53 NSWLR 317 at 324." 94 In the foregoing circumstances and applying the principles referred to, I do not consider that there was any error on his Honour's part in admitting Exhibits E and F and I consider that no miscarriage of justice has occurred as a consequence of his error in admitting part of those exhibits purportedly pursuant to s 65. They were admissible on other grounds and no relevant considerations were overlooked by his Honour when he considered the appellant's application to exclude the evidence pursuant to ss 135 and/or 137. Given the nature of the appellant's cross-examination intended to neutralise the contents of Exhibits E and F, it was in any event appropriate and desirable that, subject to appropriate directions (see Ground 3 below), the jury should have available to it the full context of the interviews so that, to adopt the words of the Chief Justice in GAC: "they could evaluate questions and arguments concerning the manner in which the interview was conducted." 95 For the foregoing reasons I would reject Ground 1 of the appeal.

[51]

By contrast, Mr Calin did not, in his out of court statements, intend to assert any fact about his conversation with the appellant other than that he had said certain words and that he had heard the appellant say the words he attributed to him." 98 In Lee Mr Calin in his written statement had recorded a conversation he had had with the appellant, part of the which the prosecution contended amounted to an admission: "… leave me alone, cause I'm running because I fired two shots … I did a job and the other guy was with me bailed out". 99 The Court considered that that portion of Mr Calin's statement was inadmissible because it constituted second-hand hearsay in circumstances where Mr Calin would not have had any belief as to whether what he was told by the appellant was true or not. In this context the Court had observed (at 600 [24]): "Mr Calin's belief (or lack of disbelief) in what he was told was of no relevance to the issues that arose at the trial. Accepting that Mr Calin believed what the appellant had told him would not, directly or indirectly, rationally affect the assessment of the probability of the existence of the facts in issue in the proceeding. Knowing that Mr Calin had said out of court that the appellant had confessed to the crime was relevant only to the question whether he, Mr Calin, should be believed. No doubt, an assertion by the appellant that he had fired two shots, had done 'a job' and that the 'other guy' had 'bailed out' would be relevant to the issues at the trial. But Mr Calin's statement contained no such assertion; it contained only an assertion that the appellant had said these things." 100 In the present case the appellant submitted that the trial judge ought to have recognised that Lenati's representations in the ERISP of 22 February 2004 and his videoed walk-through interview of 10 September 2004 contained "admissions". It was submitted that the statements in Q&A 103 and 478 in Exhibit E relating to motive and the statements attributed to the appellant in Exhibit E at A 21, 111, 129, 139, 413 and 414 (see [6] and [7] above), all constituted confessions or admissions which should have been excluded. The same submission was made with respect to that part of Exhibit F which I have extracted at [9] above. In my opinion the appellant's submissions should be rejected. 101 The answers to the questions of which complaint is made did not amount to confessional material of the nature of that which was rejected in Lee. Lenati described in those answers what he had observed or what had been said to him by the appellant and which constituted a direct account of what he had heard and thus would have been clearly admissible had he given that evidence in the witness box. He was describing what he had personally heard out of the appellant's mouth. It was the fact that the appellant had made those statements which constituted evidence implicating him in the subject drive-by shooting and the organisation of it. 102 A similar complaint had been made in Suteski at trial which was referred to by Wood CJ at CL in the following terms (at 197): "103 A further submission advanced at the trial, but not at appeal, was that the tender of the ERISP would have involved second hand hearsay and would therefore have been inadmissible by reason of s 62 of the Act, which only permits first hand hearsay. This argument was rejected by his Honour upon the basis that the tender of the video in which Sakisi had described what had been said to him, or what he had seen, constituted a direct account, which would have been clearly admissible, had he been called as a witness. As such it was not second hand or remote hearsay, since he was describing events in which he had been a participant, or which he had personally witnessed. 104 His Honour accepted, however, that where Sakisi had repeated to the police assertions of fact by someone else, and where the only relevance of that evidence was the facts asserted, it would have been second hand hearsay. Similarly repetition by a police officer of Sakisi's account would have been second hand hearsay. 105 The distinction which his Honour drew accorded with the definition of hearsay in s 59 of the Act, and was plainly correct. 106 By reference to this distinction, his Honour held that the disclosure to the jury of Sakisi's account, through the tender of the video or audio tapes of the interview, did not offend the first hand hearsay rule, since the record was confined to his account of the words of the appellant, which she had addressed directly to him, and to those things which he or she had done following that request." 103 His Honour was unable to see any error in the above process of reasoning. It is applicable to the present case with the consequence that the second ground of appeal should be rejected. 104 Before leaving this ground I should note the appellant's complaint with respect to Q&A 103 and 478 of Exhibit E to the effect that they suggested that the appellant had a motive to organise the drive-by shooting of Frangieh's house. However, it was not necessary for the Crown to establish any motive and the appellant received a favourable direction from the trial judge in the following terms: "The question as to motive for the drive-by shooting … arises, and whether Ken Tan actually knew, when the meeting occurred in the evening of 25 September, whether he knew, at that time, that Ray Frangieh had made a complaint to the police. If he did not, there would have been no motive. If he did, then it still does not meant that Tan was present at the meeting, and it does not mean he was involved. But, there is some evidence as to why he might have involved himself in this, you understand." 105 With respect to Q&A 478, his Honour instructed the jury that the answer was ambiguous, indicating that it would be dangerous for them to rely upon it. Furthermore, the only objection taken to these questions and answers was based upon s 90 of the Act and the unfairness of being unable to cross examine upon them. The trial judge ruled on this objection in his judgment of 27 October 2006 and it was not suggested on the appeal that his ruling was in error. No other objection was raised at trial to the admission of those questions and answers as a consequence whereof r 4 applies thereto. 106 Given the trial judge's directions to the jury on the question of motive, no miscarriage of justice or relevant irregularity is apparent. Consequently I would refuse leave to the appellant to raise any issue with respect to the admission of those two questions.

[52]

Ground 3: His Honour erred in allowing Exhibits E and F to be taken into the jury room where they could be played by the jury without supervision 107 To a significant degree this ground overlaps with Ground 1. 108 The appellant submitted that there was a real risk that the jury would give undue weight to Exhibits E and F in contrast to the other evidence. The Crown in its address to the jury informed them that they would have the exhibits in the jury room and would be able to play them as many times as they liked, although it was conceded that it was then pointed out to them that they were to approach the playing of the tapes cautiously and they were expressly warned of their "swamping effect". 109 The appellant nevertheless submitted that the "swamping effect" acknowledged by the Crown was the reason why the videotapes, if admitted, should not have been allowed by the primary judge to have been taken into the jury room. Reference was made to the decision of this Court in R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628, where videotapes of a child's evidence in chief were taken into the jury room by the jury. In that case it was acknowledged that there would be circumstances in which it would be inappropriate to allow evidence in chief of a child in video form to be taken into the jury room because of the risk that that evidence would be given disproportionate weight. 110 Thus Spigelman CJ (at 632 [10]) observed (in dissent but on grounds not presently relevant) that the authorities emphasised two matters: first, repetition, in a context where other balancing evidence is not or may not be repeated at all or as often; and second, the force attending evidence in an audio-visual form being compared with the force of evidence that may only be available in documentary or transcript form. 111 The Chief Justice then observed (at 632): "11. The principle of a fair trial requires the Court to adapt its procedures and/or to give directions to the jury wherever the circumstances of a particular trial give rise to a material risk that the jury may give disproportionate weight to the particular evidence. This is a principle of general application of which the use of videotaped evidence under special statutory provisions for the giving of such evidence is one set of circumstances in which the issue has arisen." 112 In NZ the evidence in chief of the complainant had been given by videotape under the Evidence (Children) Act 1997. The videotapes were tendered as exhibits and taken into the jury room by the jury. This Court held that there was no basis upon which a videotape of the evidence of a witness could become an exhibit, although once the videotape was played, it became part of the court record. 113 The present case is different. First, the videotapes in question were not of Lenati's evidence in chief at the trial. Rather, they were a video of his prior interviews with the police. Second, there is no absolute rule that videotapes of the nature of those presently under consideration should not be taken into the jury room provided the jury are given appropriate directions as to the use they make of them. 114 Although the appellant submitted that there was a risk in the present case that the opportunity to replay the videotapes in the jury room might result in undue influence or disproportionate weight being given to them over other sworn evidence, there can be no doubt that the jury were well aware of the nature of the appellant's attack on the reliability of the contents of the videotapes, a matter that was repeatedly emphasised by the trial judge in his summing up. The jury was well aware that Lenati did not give sworn evidence in court in support of the contents of Exhibits E and F and that he had been exposed to a lengthy cross-examination on behalf of the appellant with respect to their contents. They were equally aware that the exhibits did not constitute evidence given under oath. 115 Furthermore, the jury did not retire to consider its verdict until 10.20am on 8 November 2006. Within a short time they sent a note to the trial judge requesting they be provided with the trial transcript. This was provided to them. Although a verdict was not formally taken until late the following day (9 November 2006) the jury had advised the trial judge at about 2.05pm that they had reached a verdict. Accordingly, the Crown submitted that the period during which the jury had access to the videotapes in the jury room was limited and, therefore, was unlikely to have had any "swamping effect" as alleged by the appellant. 116 Given the repeated s 165 warnings of the trial judge to the jury as to the potential unreliability of Lenati's interview with the police the subject of Exhibits E and F, the fact that the jury was warned that the contents of those exhibits were unsworn; and given also the request by, and the provision to, the jury of the trial transcript (containing the sworn evidence of the Crown witnesses and, particularly, Lenati), I do not consider that the trial judge by permitting the jury to have access to the videotapes in the jury room brought about any imbalance or unfairness in the trial giving rise to a miscarriage of justice: cf R v RTGS [2005] NSWCCA 293 at [55]. Furthermore, experienced trial counsel for the appellant took no objection to that access, so that r 4 applies. 117 The discretion to allow this ground of appeal should only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. Thus there must be a convincing reason why the matter was not raised at trial or there must be the possibility of a real injustice: R v Germakian [2007] NSWCCA 373; (2007) 70 NSWLR 467 at 472 [11]-[13]. The present complaint does not go close to satisfying these requirements. Leave under r 4 should be refused and Ground 3 of the appeal rejected.

[53]

Ground 4: His Honour failed to properly direct the jury as to the use they could make of Exhibits E and F, being the out of court statements of Mr Lenati 118 The appellant acknowledged that the trial judge gave extensive directions and warnings to the jury with respect to the potential unreliability of the evidence of the out of court statements of Lenati. Thus in the course of summing-up, his Honour directed the jury in the following terms: "And finally, the evidence which the Crown invites you to rely on, to a very large extent, is unsworn evidence, that is, evidence given earlier on, in statements and interviews, rather than the evidence given here in court on oath. So to a large extent, you need to rely on the unsworn evidence of Lenarty and Fafeda [sic] to find that Mr Tan was present at the meetings before and after the drive-by shootings. It is different with Mr Latu because he gave sworn evidence here in Court. So for those reasons, I am required to warn you that the evidence of each of those three witnesses may be regarded by you as unreliable. Therefore, you need to be cautious in determining whether to accept the evidence of either of them, or all of them, and to weigh their evidence very cautiously. Very carefully." 119 Again, later in the summing-up, his Honour directed the jury as follows: "So you will need to scrutinise, very carefully, the evidence, to assess what they, each of the three witnesses, have said at various stages between February 2004 when Lenati first engaged in an interview with the police, and now, when he spoke to you, under oath, in the witness box." 120 His Honour referred to the fact that much had been said about the police interviews and, with respect to what had been admitted, the contradictions and inconsistencies contained in them. He reminded the jury that they had had the advantage of observing Lenati in both videos in terms of what he had said, how he had said it, his interaction with the police and how the police dealt with him, the nature of the questions asked and his response to them. They had then had the advantage of seeing Lenati in the witness box. Towards the end of his summing-up he reminded the jury that Lenati may have been telling lies in both his interviews. 121 In his written submissions (not elaborated upon in oral argument), the appellant contended that although his trial counsel had made much in his address to the jury about the inability of the defence to properly test what had been said by Lenati in Exhibits E and F and that what he had said was not on oath, the trial judge at no stage gave any judicial support to those submissions or what flowed from the fact that the out of court statements of Lenati were in the nature of hearsay evidence. In this context reference was made to ss 165(1)(a) and (2)(a) of the Act which, in the case of hearsay evidence, obliges the trial judge, if a party so requests, to warn the jury that the evidence may be unreliable, the matters that may cause it to be unreliable and for the need for caution in determining whether to accept the evidence and the weight to be given to it. 122 The appellant acknowledged that his trial counsel did not specifically make a request under s 165(2) although at the end of the summing up he had submitted that his Honour had misdirected the jury when he had told them that although they had seen Lenati in the witness box remembering things, he was the same person whom they had seen in the 2004 videos also remembering things. It was submitted that his Honour's direction constituted an acceptance of the key argument in the Crown case in that in the 2004 interviews Lenati remembered events relating to the appellant's involvement in the drive-by shooting which he did not remember in the witness box and, as I understand the argument, in those circumstances what he had said on the earlier occasions might well be true. 123 It was therefore submitted that his Honour should discharge the jury - an application which he declined. However, as he reminded counsel, correctly in my view, he had informed the jury "over and over and over again" that the appellant's case was that Lenati was telling lies at the time of the interviews. His Honour then recalled the jury and directed them in the following terms: "… Do you remember I was talking to you about sitting in the witness box and remembering, and then going into February 2004 and September 2004, and remembering the events of September 2003. The witnesses may have been remembering - but they may have been telling lies in September 2004, or telling lies in February 2004. They may not have been genuinely remembering the events of the year before when they were sitting talking to the police. That is the matter that you need to decide. So when I said they are sitting there in their then state of mind, remembering what had taken place, I want you to understand that it is the case for Mr Tan that they were not remembering accurately or even truthfully what had happened but when they were making those statements they were actually, in terms of Mr Tan's presence, telling lies on the instigation of the police." 124 As the Crown submitted, his Honour directed the jury in no uncertain terms that Lenati's out of court statements to the police in his ERISP might well be unreliable on a number of bases including that he was an accomplice; that he had a criminal record; had obtained sentencing discounts; had been suborned by the police and had a motive to lie. He further spent a deal of time illustrating the inconsistencies in Exhibits E and F compared to Lenati's evidence in the witness box and he made it clear to them that what he had said in his interviews was unsworn. 125 In a summing up occupying approximately 62 pages of transcript, some eight pages were given over to the issue of the unreliability of the contents of Exhibit E and F and there were further additional references throughout the document. As the Crown submitted, at the end of the summing up the jury would have been left in no doubt about the potential perils of accepting Lenati's evidence and that they should approach his statements to the police with a great detail of caution. 126 In the foregoing circumstances, in my opinion his Honour gave more than adequate directions to the jury as to the use they could make of the out of court statements of Lenati. This ground of appeal should therefore be rejected.

[54]

Ground 5: The verdict of the jury was unreasonable and could not be supported by the admissible evidence 127 Section 6(1) of the Criminal Appeal Act 1912 involves acceptance of the proposition that the jury's verdict should be set aside where it is unreasonable or cannot be supported having regard to the evidence. The appellant's submission was that absent Exhibits E and F there was insufficient evidence to implicate the appellant in the drive-by shooting. Alternatively, as Lenati's evidence, including what he had said in Exhibits E and F, was so demonstrably unreliable, it would be unfair and a miscarriage of justice for the jury to have relied upon the unsworn out of court statements of Lenati in those exhibits to convict the appellant. It was submitted that the only conclusion the jury could have reached was that Lenati, and for that matter the other two Crown witnesses (Latu and Fifita), had no credibility whatsoever. 128 The appellant nevertheless accepted that Exhibit E, if viewed in isolation, contained evidence to support each of the elements of the two counts on the indictment against the appellant. However, it was submitted that Exhibit E was required to be read subject to the strongest of cautions in relation to its provenance; its hearsay nature; the effect of Lenati's subsequent behaviour on his credibility; his implication in the offence as an accomplice and his status as an indemnified witness who received a significant benefit on sentence because of his "assistance". It was further submitted that Exhibit E was not only an unsworn statement but had been adopted only in part by Lenati in the witness box and in a manner that would cause considerable concern about its accuracy and reliability. 129 The appellant acknowledged that the trial judge in his summing up had detailed not only the internal contradictions and conflicts in what each of the three Crown witnesses (upon whom the Crown had relied to establish that the appellant was present before and after the drive-by shooting) had said, but also the contradictions and conflicts between the three of them. In these circumstances, for the jury to have convicted the appellant required them to accept the hearsay assertions of Lenati contained in Exhibits E and F and to ignore everything that he had said on oath. It would also mean giving weight to the witness Fifita's contradictory assertions about whether the appellant, as opposed to another Asian man, was at the relevant premises when discussion took place with respect to the proposed shooting. 130 It was thus submitted that all three Crown witnesses were suspect and that they were indemnified co-offenders who were neither coherent, consistent and whose unreliability was demonstrable. In these circumstances, to allow a conviction based on their combined testimony would be neither reasonable nor supported by any reliable evidence. 131 The Crown acknowledged that there were undoubted difficulties particularly with the witnesses Lenati and Fifita in that each was unfavourable in some respects to its case. However, the problem with their evidence was comprehensively analysed and the subject of more than adequate directions by the trial judge. In particular, the various inconsistencies and reasons to suspect the reliability of their evidence were identified in detail to the jury and it was impressed upon them that they should approach the evidence of these witnesses with caution. 132 The legal principles relevant to this ground of appeal have been authoritatively established by the High Court in M v The Queen (1994) 181 CLR 487 at 492-493; Jones v The Queen (1997) 191 CLR 439 at 450-452; and MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at 641-615. The relevant principle was stated in M (at 493) in the following terms: "Where, notwithstanding that as a matter of law there is evidence to sanction a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilty or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations." 133 After referring to the qualification which had been sought to be based on what Barwick CJ had said in Ratten v The Queen (1974) 131 CLR 510 at 516, the plurality relevantly continued (at 496): "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 134 In my opinion the critical issue for the jury in the present case was whether they were satisfied beyond reasonable doubt that Lenati was telling the truth when he implicated the appellant in his recorded interviews with the police in 2004. They had the advantage, which this Court did not, of seeing and hearing Lenati give evidence over a lengthy period in which he was cross-examined by both the Crown and the defence. What the witness said in the interviews, if accepted, clearly had probative force. The present case, in my opinion, was quintessentially one where the jury were in a position of significant advantage to determine whether Lenati was telling the truth in the interviews. 135 There was nothing on the face of Lenati's answers to the questions asked of him in the interviews that were inherently improbable or lacked credibility. Of course there were a number of factors, including parts of his evidence on oath, which were capable of reflecting adversely on the credibility or reliability of those answers. The jury was more than adequately apprised of them both by the appellant's trial counsel and by the trial judge in his summing up. 136 However, in my view, there can be no doubt given the considerations to which I have referred, that in approaching the evidence of Lenati with the caution directed by the trial judge, it was open to the jury to accept beyond reasonable doubt his statements in Exhibits E and F implicating the appellant in the drive-by shooting. 137 It was no doubt unsurprising to the jury that Lenati, particularly when cross-examined on behalf of the appellant, suddenly (as the trial judge observed) underwent an improvement in his recollection which was favourable to the appellant. That Lenati had also given evidence on oath that watching and hearing the videotapes had triggered his memory and that he was prepared to stand by what he had said in the interviews even though he had no current recollection of the events in question may well have been a matter of some significance to the jury's assessment of him. When it was suggested to him that he did recall the drive-by shooting on 25 September 2003, he responded: "I say I am prepared to give evidence on the statements that I've made". 138 At the end of the day it was a matter for the jury as to whether, notwithstanding Lenati's evidence on oath, they were satisfied beyond reasonable doubt that he was telling the truth in his videotaped interviews with the police and which became Exhibits E and F. Although it was suggested to them, based on Lenati's evidence in cross-examination by trial counsel for the appellant, that he had told the police what he thought they wanted to hear, nonetheless it was for the jury to assess that evidence in the light of the apparent attempt by Lenati to provide evidence favourable to the appellant. It was up to the jury whether they considered that that attempt should be discounted and that the truth lay in what Lenati had told the police with respect to the appellant's participation in the organisation of the drive-by shooting. The advantage enjoyed by the jury in these respects cannot be discounted. 139 In my opinion, there was admissible evidence that it was open to the jury to accept as sufficiently reliable to implicate the appellant in the offences with which he was charged beyond reasonable doubt. Accordingly, I would not regard the jury's verdict as either unreasonable or lacking support having regard to the evidence. Ground 5 should therefore be rejected.

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