DELIVERED ON: 24 August 2009 (Ruling delivered orally)

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Prejudicial evidence - Particular cases - Other matters - Unfavourable witnesses - Prior inconsistent statements tendered - Statements evidence of facts asserted - Witnesses claiming no memory of events or making statements - Effective inability to cross-examine as to asserted facts - Probative value of evidence outweighed by danger of unfair prejudice - Evidence excluded.

Evidence Act 2001 (Tas), ss43, 60, 137.

R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182; Galvin v R [2001] SASC 343; (2006) 126 A Crim R 449, applied.

Accused Richardson: Legal Aid Commission of Tasmania

Judgment Number: [2009] TASSC 82

EDITED REASONS FOR RULING (Delivered orally) PORTER J

1 [The accused were each charged with one count of aggravated armed robbery. The allegation was that shortly after 10pm on 15 February 2008, they had entered the gaming room of an hotel, and robbed the cashier. CCTV footage showed three disguised persons, with two carrying sawn-off shotguns. One was apparently wearing black stocking material over his head. A substantial part of the Crown case was to come from Savhanna (sic) Harwood and Brydon Bennett. Their anticipated evidence was that the three accused had come to their home at 11 Kay Street, Kings Meadows, very shortly after the robbery. The accused asked to hide some things and were later seen by Mr Bennett burning items in the backyard. Mr Bennett's evidence was to be that the accused, Malcolm Mayne, had admitted to the robbery. On 18 February 2008 police found at 11 Kay Street, two shotguns, burnt clothing material, and burnt plastic trays which were later established to have come from the hotel.]

2 [Neither Ms Harwood nor Mr Bennett answered to a final notice to appear, and warrants were issued for their arrest. They were in custody at the time of being called to give evidence. In evidence before the jury, they both acknowledged that they were not in Court voluntarily. Mr Bennett initially refused to be sworn or affirmed as a witness. He was stood down as a witness until the next day under threat of contempt proceedings, and made an affirmation when recalled. Each witness claimed to have no memory of the events of 15 February 2008, nor of what they had said to police. I granted leave to the Crown to cross-examine. Statutory declarations made to police were tendered as prior inconsistent statements. When parts of the declarations were read to them, each witness claimed not to remember having made the statements, in the sense of not being able to say whether they did or did not. Shortly before the close of the Crown case, submissions were made on behalf of the accused, principally as to the exclusion of the statutory declarations and the cross-examination on the contents. I gave oral reasons for excluding that evidence. What follows are those reasons, which have been edited.]

3 This ruling concerns two categories of evidence. The principal issue concerns statutory declarations made to police by Ms Harwood and Mr Bennett on 19 February 2008 and 4 March 2008, respectively. Those statements were tendered pursuant to the Evidence Act 2001 ("the Act"), s43, after successful unfavourable witness applications under s38. The facts asserted in the statements relate to the activities of the accused in hiding and burning various items at the witnesses' home at 11 Kay Street within hours of the robbery. In the trial each witness claimed to have no memory of the events and no memory of making the statements. These statements were proved by the police officer who took them. Each statement was tendered without objection, although the submissions now made were foreshadowed in advance of Mr Bennett's statement being tendered. By virtue of the Act, s60[1], the statements become evidence of the facts asserted. The application is that the statements be excluded by virtue of s137[2].

4 In the context of what has occurred, that must mean that I refuse to permit them to go to the jury. The statements in the written documents were put to the accused by Crown counsel but not adopted by them. The direction would then be, that in accordance with the usual direction that questions are not evidence in the absence of confirmation by the witness, the questions should be ignored. An alternative path to the same destination is one pursuant to s136, and that is that I limit the use of the statements to an assessment of credibility. All are agreed, however, that in that event, due to the state of the evidence from the two witnesses, the statements are not relevant. [See Reid v Tasmania [2007] TASSC 102 per Crawford J at par12; Slicer J at par23.]

5 The other category of evidence is evidence yet to be given on the trial. It relates to items found in "chill bags" in the motor vehicle at the place where the accused Mr Mayne was living. He was found asleep in the vehicle. The evidence will be that in pockets in one bag pieces of black stocking were found, along with scissors and some other items. An identification document of the accused Mr Mayne was also found. In another bag there was found a piece of paper on which was written the Christian names of Ms Harwood and Mr Bennett, and the name "Caine" spelt the same way as that of the accused Mr Richardson. The submission is that if the witnesses' statements are excluded, then this evidence should also be excluded pursuant to s137. As I understand it, the Crown accepts that the two categories are inextricably linked, with the chill bag evidence dependent on the written statements. In short, the Crown accepts that the chill bag evidence cannot be led if the statements are excluded.

6 I turn then to the statements. Obviously, the Crown case has not closed at this point. It is conceivable that further evidence may be led as to the matters which affect the issues relating to the statements, but I proceed on the assumption that this is not to occur, and that the Crown case will be confined to that contained in the papers.

7 I have already noted the essential way in which the statements came to be admitted as proof of the facts asserted. [See Lee v R (1998) 195 CLR 594.] The operation of s60 is always subject to the operation of the exclusionary provisions set out in ss136 and 137. As a broad proposition, where there is a genuine dispute on the facts, or the hearsay material is demonstrably unreliable, a court might be expected to limit the operation of s60; see Quick v Stoland (1998) 87 FCR 311 at 378 and 382, and Lardil Peoples v State of Queensland [2000] FCA 1548 at par14. Here, of course, it is exclusion which is sought. As to the further events in the trial, counsel for the Crown did establish from both witnesses by use of police photographs that at the relevant time they lived at 11 Kay Street.

8 Counsel for the accused cross-examined each witness. Both attributed their loss of memory as to the events, and what they had said to the police, to drug use. Ms Harwood said that she was able to remember that Mr Bennett did not commit the robbery, and then refused to answer any more questions, but immediately thereafter said that she was not protecting him. She denied making a false statement, but when this was pursued with the assertion that it was not true, she responded with the ambiguous answer that she could "not remember anything like that", although as I recall her answer, the emphasis was on the lack of memory. Counsel for Mr Jones suggested that Mr Jones was living at 11 Kay Street at the time, and that he had been away at Bridport one evening in February. Ms Harwood said that she could not remember this at all.

9 In cross-examination Mr Bennett said that he was a drug addict at the time and could not remember anybody coming to his home on the evening of 15 February 2008, or anything of that day at all, and could not remember what he had told the police. He did remember not doing the robbery. He admitted prior convictions for offences of dishonesty including robbery but said that he had changed from being a person of dishonesty. He denied remembering anything about his possession of a shotgun which he allegedly got from a friend.

10 The exercise required by s137 of the Act is, of course, to make a judgment as to whether the probative value of the evidence is outweighed by the danger of unfair prejudice. Counsel were agreed, and I too agree, that in assessing probative value I should make an assessment of the reliability of the evidence rather than taking it at its highest. This is in accordance with the approach of the Court of Criminal Appeal in Director of Public Prosecutions v Lynch [2006] TASSC 89; (2006) 16 Tas R 49, and the approach endorsed in Odgers, Uniform Evidence Law, 8th ed at 705. This is also, I should say, notwithstanding authoritative statements to the contrary by the New South Wales Court of Appeal. [See R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302.]

11 What then of the reliability of the statements to police? A not dissimilar factual situation was before the High Court in R v Adam (2001) 207 CLR 96. A witness had purported to give police an eye-witness account of events in which he was implicated, but when called at trial he said that the facts he asserted in the statement were what he had been told by others. His prior inconsistent statements were tendered. Gaudron J dissented as to the outcome, but her Honour's observations remain valid. At par66 her Honour said that it was evidence which the law regarded as potentially unreliable, as it was evidence given by a person who might reasonably be supposed to have been criminally concerned in the relevant events within the meaning of s165 of the Act.

12 In this case, given the nature of the items found at 11 Kay Street, all counsel are agreed that I would have to warn the jury in the terms of s165(2)[3]. Returning to Adam's case, Gaudron J at pars67 - 68, pointed out that the primary reason why hearsay evidence was not admissible was that it was not on oath and its reliability could not be tested in court. Her Honour contrasted the evidence involved with the type of hearsay which the Act treated as inherently reliable. At par68 her Honour said:

"Inherent reliability and the ability to test the evidence in question, respectively, underlie the exceptions in ss 65(2) and 66(2) of the Act which relate specifically to criminal trials."

13 At par78, Gaudron J said that the prior inconsistent statements of the witness were not of a kind which were inherently reliable, but rather were of a kind that the Act treated as potentially unreliable. In particular, her Honour said at par77:

"Where the issue is whether leave should be granted to cross-examine a witness so that hearsay evidence which is otherwise inadmissible may be put before a jury, the primary consideration, in my view, is whether that evidence is inherently reliable or, if it is not, whether a jury can safely find that it is necessarily reliable because, for example, a finding that a witness is untruthful in some particular aspect or his or her evidence necessarily entails the consequence that his or her earlier statement is true. The second matter to which regard should be had is whether the truth and accuracy of the statement can properly be tested."

Those comments can be applied to the exercise in this case.

14 Apart from the bare mechanics of the officer taking down on computer what was said, and the fact that on their face the statements are statutory declarations, there is no evidence as to the circumstances in which the statements were made. There is no evidence as to what led to their making; in particular as to any preliminary discussions, nor any evidence as to the state the witnesses were in, or their more general circumstances. The Crown's position is that I should regard the statements as being reliable, in contrast to their evidence, and that the jury can properly assess the unreliability of their evidence in court and hence the reliability of the written statements.

15 The rejection of the witnesses' evidence that they have no memory of both the events and what they have said to police, does not necessarily lead to an acceptance of the truth of the statements. The discovery of incriminating items at their home, the possibility of being concerned in the crime, and the apparent extent of the self-confessed drug use, are factors which need to be taken into account in this respect. As I have said, the rejection of the witnesses' evidence that they have no memory of both the events and what they said to police does not necessarily lead to an acceptance of the truth of the statements. The risk is that this approach is an attractive one to the jury.

16 Much of the argument focused on the accuseds' constructive inability to cross-examine the witnesses. Whilst counsel acknowledge that some cross-examination could have been, and was, directed towards credibility, it was argued that the claimed loss of memory precluded detailed cross-examination as to the facts asserted. One example is the exploitation of inconsistencies between the two witnesses and internal inconsistencies in the statements. For instance, Ms Harwood said that only Mr Mayne and Mr Jones turned up on the evening of the robbery. Mr Bennett told police on 18 February that only Mr Mayne had turned up, but all three accused are named in the exhibit statement. As earlier noted, any inability to test the facts asserted goes to reliability. In this context, I would also refer to R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at pars126 - 127, and Galvin v R [2001] SASC 343; (2006) 126 A Crim R 449 at par40.

17 As noted in Suteski, each case turns on its particular facts; that is, the character of the evidence and the nature and degree of the danger of unfair prejudice needs to be examined in each particular case. Matters of degree are clearly involved where an issue is the extent of available cross-examination. For instance, in Adam's case, the cross-examination was seen to be sufficient given the state of the witness's evidence, although, at par15, the majority [Gleeson CJ, McHugh, Kirby and Hayne JJ] noted that the Crown case essentially depended "upon the jury believing what three witnesses had said in Court" (other than the witness whose prior inconsistent statements were the subject of debate), "and disbelieving any earlier inconsistent statements they had made to police." Their Honours went on to say that the Crown case also depended "upon the jury disbelieving" what the particular witness (along with another man), "had said in Court, but believing at least part of what they had said on earlier occasions to police." [Original emphasis.] It can be seen then, that Adam's case involved the evidence of a number of other witnesses, and that the case was not dependent entirely, or substantially, on the prior inconsistent statement of the particular witness.

18 As to the character of the evidence concerned, the importance of the evidence is a relevant consideration. Here, the evidence in the two statements is, at the least, a substantial part of the Crown case. Without it, there seems to me to be very little. An effective inability to cross-examine as to the essential facts alleged against an accused which amount to the thrust of the Crown case against that accused person, is a very weighty factor. An inability to cross-examine not only affects the probative value of the evidence, but, as claimed here, can of itself give rise to a danger of unfair prejudice. If any authority is needed for that proposition, see R v Le (2002) 130 A Crim R at 256 at pars93 - 97. Untested, the evidence may assume far greater significance or weight than it deserves. This is a recognised aspect of unfair prejudice; see Festa v R [2001] HCA 72; (2001) 208 CLR 593 per McHugh J at 609 - 610. Additionally, each accused in this case submit that the fact that the statements are in writing will add to that aspect of unfair prejudice.

19 Having given this matter careful and rather anxious consideration, I have reached the position that I must exclude the evidence in the sense referred to at the outset of these reasons. That is the course s137 requires me to take if, in my judgment, the probative value of the evidence is outweighed by the danger of unfair prejudice. Fundamental to my judgment is the importance to the Crown case of the witnesses' statements as to the events of the night. They are the thrust of the Crown case, and there has been a very limited ability to test or undermine that foundation of the Crown case.

20 The probative value of the evidence is, in my view, very adversely affected by the following matters:

(1) The lack of evidence of the circumstances of the making of the statements.

(2) The witnesses being in possession of items obviously associated with an armed robbery, and most likely the armed robbery.

(4) Their lack of credibility generally in their evidence on the trial.

(5) The claimed lack of memory precluding the testing of assertions of fact as to relevant events and the circumstances of the making of the statements. It is the claimed absence of recollection as to both of those events which is significant.

21 The danger of unfair prejudice is, in my view, unduly high because of the inability to test those matters which I have just noted; and secondly, because of the risk of undue weight being given to the untested material in written form, particularly as it is contained in a document which is a statutory declaration.

22 One factor I have not overlooked is the extent to which appropriate directions might lessen the dangers of unfair prejudice. Counsel for the Crown referred me to Crofts v R [1996] HCA 22; (1996) 186 CLR 427 at 441 and Gilbert v R (2000) 201 CLR 414 at 425, in which the assumption that jurors act responsibly and in accordance with directions, was highlighted. However, as Giles JA pointed out in R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408 at par87, prejudicial effect is to be evaluated without such a foreclosing assumption, and the relevant remarks in Gilbert were not directed to the present type of situation; that is, the exercise of judgment under s137. I should note that the other two judges in GAC agreed with Giles JA.

23 In my view, in this case there is a real danger of the jury disbelieving the claimed memory loss, but then going on to simply assuming that the written statement, given to a police officer by way of a statutory declaration, must have been the truth. I am not overly confident that directions not to pursue that course, and to bear in mind all the other things which they would have to consider in assessing the weight to be given to the statements, would significantly ameliorate the risks involved. But in any event, in all of this, recognition has to be given to the context; that is, the jury does not have and will not have the benefit of a proper testing, in any real and effective sense, of the facts asserted. Because of the Crown's position, I need not rule on the chill bag evidence, although I am in a position to quickly do so, should the need arise.

24 [The Crown subsequently pursued the admission of the chill bag evidence. I ruled that the evidence would not be excluded, because in my judgment, its probative value, taken in conjunction with the other circumstantial evidence, was not outweighed by the danger of unfair prejudice. At the close of the Crown case, each of the accused Mayne and Richardson submitted that he had no case to answer. I upheld the submission in the case of Mr Richardson and the jury was directed to return a verdict of not guilty. Later, a verdict of acquittal was returned in Mr Mayne's case, whilst Mr Jones was found guilty.]

[1] s60(1) 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.

[2] s137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

[3] s165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(d) evidence given in a criminal proceeding by a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding;

(2) If there is a jury and a party so requests, the judge is to -

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.