Adam v The Queen [2001] HCA 57 11 October 2001 S139/2000
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
S J Odgers SC with C C Waterstreet and G A Bashir for the appellant (instructed by John B Hajje & Associates)
A M Blackmore with G E Smith for the respondent (instructed by S E O’Connor, Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Adam v The Queen
Criminal law – Evidence – Whether trial judge erred in admitting prior inconsistent statements of prosecution witness – Relevance of prior inconsistent statements – Application of credibility rule – Exceptions to hearsay rule – Prior inconsistent statements as evidence of the truth of the representations.
Criminal law – Evidence – Unfavourable witnesses – Whether trial judge erred in granting prosecution leave to cross-examine its own witness – Unreliable evidence.
Evidence – Prior inconsistent statements – Relevance of such statements – Whether evidence of the truth of representations – Whether judge erred in granting leave to prosecutor to cross-examine its own witness.
GLEESON CJ, McHUGH, KIRBY AND HAYNE JJ. The appellant, Gilbert Adam, and his brother, Richard, were charged with the murder of a police constable, David Carty, at Fairfield, New South Wales, on 18 April 1997. Both were also charged with some other offences. After a trial in the Supreme Court of New South Wales (before Wood CJ at CL and a jury) the appellant was found guilty of murder; his brother was acquitted of murder but found guilty of maliciously inflicting grievous bodily harm on Constable Carty.
The facts and course of proceedings
Constable Carty was attacked in the car park of an hotel. From about 11.00 pm he and other police officers had been drinking at the hotel after they had come off duty. Shortly after midnight a number of young men came to the hotel. As the night wore on, there were some exchanges between some of these young men and the off duty police officers. By about 2.15 am, three of the off duty police officers were still at the hotel (Constable Carty and two others – Constables Auld and Spencer). The three left the hotel and went out into the hotel's car park. One (Constable Spencer) drove off before the other two left.
Constable Carty then became involved in some sort of altercation which initially involved one other person. The altercation escalated; more young men became involved. Constable Carty suffered a fatal knife wound to the chest. Several members of the group of young men were seen to kick and stomp on him. Constable Auld tried to assist him but she was injured. At about the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Adam v The Queen [2001] HCA 57
Case
[2001] HCA 57
Decision Date
CaseChat Overview and Summary
The case of *Adam v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder in the Supreme Court of New South Wales. The appellant, Gilbert Adam, was found guilty of murder, while his brother was acquitted of murder but convicted of maliciously inflicting grievous bodily harm. The central dispute revolved around the admissibility of prior inconsistent statements made by a prosecution witness, Thaier Sako, to the police. The Court of Criminal Appeal of New South Wales had previously dismissed the appellant's appeal against his conviction.
The primary legal issues before the High Court were whether the trial judge erred in admitting evidence of Thaier Sako's prior inconsistent statements to the police as evidence of the truth of their contents, and whether the trial judge erred in granting the prosecution leave to cross-examine its own witness, Thaier Sako, pursuant to s 38 of the *Evidence Act 1995* (NSW). The appellant argued that the admission of these statements was improper.
The High Court reasoned that once leave was granted for the prosecution to cross-examine Thaier Sako about his prior inconsistent statements, the evidence of those statements was admissible as evidence of the truth of their contents. The Court noted that the prior inconsistent statements were relevant not only to the witness's credibility but also to other issues in the case. Consequently, the credibility rule, which generally limits the use of prior inconsistent statements to credibility, was not engaged. The Court further held that the evidence fell within the exception to the hearsay rule provided by s 60 of the *Evidence Act 1995* (NSW), making it admissible as evidence of the truth of the representations contained within the statements.
The High Court concluded that the trial judge's evidentiary rulings were not attended by error and that the Court of Criminal Appeal had correctly upheld those rulings. Accordingly, the appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
GLEESON CJ, Mc The appellant, Gilbert Adam, and his brother, Richard, were charged with the murder of a police constable, David Carty, at Fairfield, New South Wales, on 18 April 1997. Both were also charged with some other offences. After a trial in the Supreme Court of New South Wales (before Wood CJ at CL and a jury) the appellant was found guilty of murder; his brother was acquitted of murder but found guilty of maliciously inflicting grievous bodily harm on Constable Carty.The facts and course of proceedings Constable Carty was attacked in the car park of an hotel. From about 11.00 pm he and other police officers had been drinking at the hotel after they had come off duty. Shortly after midnight a number of young men came to the hotel. As the night wore on, there were some exchanges between some of these young men and the off duty police officers. By about 2.15 am, three of the off duty police officers were still at the hotel (Constable Carty and two others – Constables Auld and Spencer). The three left the hotel and went out into the hotel's car park. One (Constable Spencer) drove off before the other two left. Constable Carty then became involved in some sort of altercation which initially involved one other person. The altercation escalated; more young men became involved. Constable Carty suffered a fatal knife wound to the chest. Several members of the group of young men were seen to kick and stomp on him. Constable Auld tried to assist him but she was injured. At about the time of the altercation between Constable Carty and the other men, a young man named Thaier Sako suffered a knife wound to the neck. The prosecution called Thaier Sako to give evidence at the trial of the appellant and the appellant's brother. The trial judge gave leave to the prosecution to cross‑examine Thaier Sako and to elicit evidence from him of statements he had made to the police about what happened on the night Constable Carty died. This evidence was tendered to the jury as evidence of the truth of what was said in the statements. It was tendered against only the appellant. The Court of Criminal Appeal (Spigelman CJ, James and Bell JJ) dismissed the appellant's appeal against his conviction[1]. The question in this appeal is whether the Court of Criminal Appeal of New South Wales should have held that the trial judge erred in admitting the evidence of Thaier Sako's statements to police as evidence of the truth of what was stated in them. To understand the issues which arise, it is necessary to say something further about the facts and about the course of the trial.[1]R v Adam (1999) 47 NSWLR 267. Because of the wound he suffered, Thaier Sako was admitted to hospital on 18 April 1997 and police did not seek to interview him until 21 April. He declined to answer any questions and, on the next day, 22 April, he was charged with the murder of Constable Carty. (His brother, Thamir Sako, had already been charged with the murder.) About six weeks later (on 17 June 1997), police were told that Thaier Sako wished to be interviewed and on 2 July he was. The interview was recorded. Thaier Sako was then in custody. A little over a fortnight later (on 17 July 1997) the appellant was charged with murder.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
HUGH, KIRBY AND HAYNE JJ
GAUDRON J
The example which the appellant advanced in argument is, in effect, the situation which arose in relation to the evidence of Thaier Sako. Once it was decided that the prosecution could cross‑examine him about his prior statements, the evidence of the prior statements was admissible as evidence of the truth of the contents of the statements.Conclusions That result follows from the following steps:(a)The evidence that Thaier Sako had given prior inconsistent statements was relevant to his credibility.(b)The evidence of what he had said in those statements related not only to his credibility but also to other issues in the case.(c)The decision to grant leave to cross‑examine Thaier Sako about his prior inconsistent statements was not attended by error.(d)Because the evidence of what he had said in the earlier statements was relevant to more than his credibility (that is, it was not relevant only to his credibility) the credibility rule in s 102 was not engaged.(e)It was, therefore, unnecessary to consider the operation of the exception to the credibility rule provided by s 103. It is unnecessary to consider what is meant by "substantial probative value".(f)The evidence being relevant for purposes which included the attack on Thaier Sako's credibility, but 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.(g)It was, therefore, unnecessary to consider other exceptions to the hearsay rule such as s 66.Order It follows that the appellant's attacks on the evidentiary rulings of the trial judge fail, as the Court of Criminal Appeal correctly held. The appeal should be dismissed. The question that arises in this appeal is whether, in the appellant's trial on a charge of murder, leave should have been granted pursuant to s 38 of the Evidence Act 1995 (NSW) ("the Act") to the prosecution to cross-examine its own witness, Thaier Sako. The relevant facts, in the context of which that question must be answered, are set out in the joint judgment of Gleeson CJ, McHugh, Kirby and Hayne JJ. Save to the extent that I desire to say something more of the circumstances in which leave was sought and granted, it is unnecessary to repeat those facts. Section 38(1) of the Act provides:" A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:(a)evidence given by the witness that is unfavourable to the party, or(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or(c)whether the witness has, at any time, made a prior inconsistent statement."By sub-s (3) of s 38, the cross-examination may be with respect to "matters relevant only to the witness's credibility". Sub-sections (1) and (3) of s 38 define the ambit of the cross-examination which may, by leave, be permitted under that section. Sub-section (6) of that section is concerned with the considerations relevant to the grant of leave. That sub-section relevantly provides:" Without limiting the matters that the court may take into account in determining whether to give leave ... under this section, it is to take into account:(a)whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party."
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, KIRBY AND HAYNE JJ,
GAUDRON J