Assafiri v Horne - [2004] WASCA 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ASSAFIRI -v- HORNE [2004] WASCA 40

CORAM: ROBERTS-SMITH J

HEARD: 17 FEBRUARY 2004

DELIVERED : 12 MARCH 2004

FILE NO/S: SJA 1105 of 2003

BETWEEN: JAMES ALLAN ASSAFIRI
Appellant
AND
DARREN WILLIAM HORNE
Respondent

Catchwords:

Evidence - Video record of interview - No admissions made, merely denials - Video tendered by prosecution - Subsequently ruled inadmissible by Magistrate in course of reasons for decision - Appeal by convicted defendant - Whether open to court to reject tender at that stage - Admissibility of prior selfserving statements - Whether can be relied upon as evidence of the truth when tendered by the prosecution with consent of the defendant

Evidence - Police video record of interview - voluntariness - Questions "why would [complainant] lie?" - Effect of - Discretion - Applicability of principle in Palmer v The Queen (1998) 195 CLR 1 to police interview

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr B S Hanbury
Respondent: Ms S T Gorman

Solicitors:

Appellant: Beau Hanbury
Respondent: State Solicitor

Case(s) referred to in judgment(s):

A Child v Andrews (1994) 12 WAR 552
Astill (1992) 63 A Crim R 148
Kochnieff (1987) 33 A Crim R 1
McDermott v The King (1948) 76 CLR 501
Palmer v The Queen (1998) 193 CLR 1
Penfold v Hobbs, unreported; SCt of WA; Library No 7529; 15 February 1989
Pollitt v The Queen (1992) 174 CLR 558
R v Callaghan [1994] 2 Qd R 300
R v Geesing (1984) 39 SASR 111
R v Gibson (1887) 18 QBD 537
R v Graham (1972) 26 DLR (3d) 579
R v Haycock [1989] 2 Qd R 56
R v Lee (1950) 82 CLR 133
R v Newsome (1980) 71 Cr App Rep 325
R v Steffan (1993) 30 NSWLR 633; (1993) 67 A Crim R 506
Radford (1993) 66 A Crim R 210
Re Petition by Van Beelen (1974) 9 SASR 163
S (2002) 132 A Crim R 326
Shaw v The Queen (1952) 85 CLR 365
Teper v The King [1952] AC 480
Walton v The Queen (1989) 166 CLR 283
Wogandt (1988) 33 A Crim R 31

Case(s) also cited:

Gill v The Queen [1999] WASCA 68
Leary v The Queen [1975] WAR 133
Middleton v The Queen (1998) 100 A Crim R 244
Mraz v The Queen (1955) 93 CLR 493
R v Higgins (1829) 3 C & P 603

ROBERTS-SMITH J: This appeal by a convicted defendant rather unusually springs from a Magistrate's rejection of an ostensibly inadmissible police video record of interview with the defendant, tendered by the prosecution, with the consent of the defendant's counsel.
On 12 September 2003 the appellant was convicted by his Worship Mr P Malone SM in the Perth Court of Petty Sessions on one charge of unlawfully assaulting Ms Heather Anne Weir on 9 February 2003 contrary to s 313(1)(b) of the Criminal Code. A further charge of breaching a violence restraining order was dismissed.
Both charges were heard together.
The prosecution called three witnesses. They were Constable Tamyka Skeet (who gave evidence in relation to the service of the violence restraining order upon the appellant); Ms Weir (who gave evidence in relation to the alleged assault) and Constable Darren Horne (whose testimony related to a video record of interview conducted with the appellant on 8 May 2003).
The appellant did not give evidence and called no witnesses.
The charge of breaching the violence restraining order was dismissed as the learned Magistrate was not satisfied the order had been personally served on the appellant.
Following his conviction on the charge of unlawful assault, the appellant was sentenced on 3 October 2003 to a term of 6 months imprisonment, to be served concurrently with sentences then being served for other offences.
On 2 December 2003 McKechnie J granted leave to appeal.
Before turning to the grounds of appeal, it is necessary to describe in greater detail the proceedings before the learned Magistrate. Given the outcome of the charge in relation to the breach of restraining order, I shall not advert to the evidence in that regard.
The complainant was 47 years of age and lived in Glendalough. Relevantly, her testimony was that she met the appellant when she was living opposite the Warwick Police Station about eight years earlier. Although she was not aware of it, the appellant was apparently on bail and having to report to the police station daily at that time. They somehow came to meet and something of a friendship developed.
The friendship lasted for a couple of years. She noticed that he lost his temper very quickly and appeared to be violent, but for reasons which she really did not understand. She said she did not know anything about him because he was very secretive about his past.
Later, in cross‑examination, she said that he had told her he was married with two children and had another small girl whom he named. He told her that his wife lived in Leederville and showed her photographs of the little boy and girl.
The appellant had been to the complainant's unit at Glendalough previously. She did not invite him, he "invited himself".
Previously he had been telephoning her and making abusive phone calls because she told him she did not want anything to do with him. Nonetheless, he continued to call. He was also ringing the complainant's daughter "relentlessly" up to 20 times a day, leaving obscene messages on the answering machine, even though he had never met, nor even so far as she knew, seen, her daughter. He was ringing her whole family and abusing them.
As a result of this, in 2002 she had Telstra change her telephone number. She also obtained a violence restraining order.
Sunday 9 February 2003 was a hot day. About 10.30 am the complainant was sitting at a table in her unit listening to music with her door open when the appellant walked in and began to rummage through papers and letters on her table.
The complainant asked him what he was doing and what he was looking for. He told her he was looking for her new telephone number. They began trading insults. She asked him to leave but he refused. She was uncertain about what to do and did not wish to aggravate him too much because of her past experience with him. He spent some time, possibly 20 minutes to half an hour, going through her personal papers.
When she realised he was not going to leave of his own accord despite her having asked him on several occasions to do so, she telephoned her ex‑husband. She did not want to ring the police because she knew the appellant could hear her. She spoke to her ex‑husband and said the appellant was there and was causing a problem. Her ex‑husband asked whether she wanted the police and she said that she did. While she was speaking to her husband on the telephone with her back to the appellant, he punched her to the back of the head and left the unit. She said he hit her with a closed fist from his right hand "very hard". He knew the police were on the way and they arrived after about 10 minutes.
She said that after he hit her she felt dizzy, disorientated, mentally upset and tearful.
Cross‑examined, the complainant said there had been times when the appellant called into her unit uninvited. If the door was shut he would bang on the window and the door very violently so that he disturbed all the neighbours and she had no choice but to let him in. She denied that there were times when she had wanted him there and had invited him in.
The complainant also denied that since the restraining order had been made she had been to his place.
Counsel put it to her that she had been to see him on 3 June 2003 in the afternoon with a couple of bottles of beer. She denied that and said she did not drink beer, she drinks champagne.
Counsel asked whether she recollected that police officers from Mirrabooka came to her house and questioned her about her going to the appellant's place on 3 June 2003. She denied that. She said the police would have had no reason to come to her place because she had not been to his.
She agreed that she had known the appellant for over eight years but she denied that they were intimate. Asked whether he had ever given her a kiss on the cheek she said "Maybe, yeah. A kiss on the cheek, yeah.".
Asked what was said when the appellant came to her house on 9 February she testified that he said:
"I'm looking for your phone number. Give me your phone number, bitch."
to which she replied that he would not find it there, but he kept looking.
She denied that he was there with her permission.
She said he left the unit because he knew the police were coming. She had told him that she had rung her husband and that he was calling the police. That was when the appellant punched her and walked out.
Constable Darren Horne testified that he and Constable Collins went to Mr Assafiri's unit in Balga on 8 May 2003 at about 9 pm. They subsequently took him to the Mirrabooka police station where he took part in a video record of interview. The tape was then played to the court.
Having watched portion of it, the learned Magistrate interrupted and there was the following exchange (AB 27):
"HIS WORSHIP: Stop the video, please. Mr Hanbury, have you seen this beforehand?
MR HANBURY: Yes, I have, sir.
HIS WORSHIP: Well a series of saying, 'I'm not answering any questions'; the questioning keeps going on. I'm a bit intrigued why you don't suggest that there are some problems.
MR HANBURY: I - - because I've never - - I've never had a magistrate ever rule that - - a video inadmissible.
HIS WORSHIP: Well, if you don't make an application, that history will continue obviously.
MR HANBURY: Well I've given up but - - I don't say that in a light way and I don't say it in a facetious way, but the other thing here is that the problem when this happens is that the police keep on asking the questions, and then eventually the person starts answering the questions and it then becomes very difficult for lawyers to know, because admissions are made and so forth, but - - I don't expect you, sir, to comment on this, but I've seen the video and I've made an assessment about it, and I'm not raising an objection.
HIS WORSHIP: Okay. Well, yes, thank you."
The playing of the video tape continued, following which the prosecutor tendered it and his Worship admitted it as exhibit 2.
There was no cross‑examination of Constable Horne.
In the course of his final submissions to the learned Magistrate, counsel for the appellant said that as a result of the learned Magistrate's "criticisms" of him about the video recording, he had looked at Palmer (Palmer v The Queen (1998) 193 CLR 1). He said that was a sexual offence case in which questions had been put to the accused under cross‑examination in court, not in a video record of interview. The questions were "why would the complainant make it up?" In the present case counsel said he did not think the interviewing police officer went that far. Counsel then said (AB 31):
"But in any event, I stand by my judgment in the matter, and the video is part of the evidence. And as a consequence of receiving that evidence, the position is this on video; that the accused man, when he was asked questions by police, repeatedly said, 'I don't wish to answer questions.' And again I don't know whether the officer was being clever, or he was just acting out of ignorance. One would hope that he was acting out of ignorance, rather than being clever. But to persist in asking any person, in particular a person who's less than a whole person when it comes to their mentality, is disturbing.
But the thing about it is that it can be done, and the other reason, I suppose, sir, why that evidence can be admissible, certainly as I understand it, is Bunning and Cross, which allows the police to obtain evidence illegally, but then it can still be admitted. Now the situation with the accused was that he was asked questions, and he answered some of them, and he said he didn't want to answer others. It would be my submission that you can accept that evidence as to what he said. It becomes evidence in the case. And he said he didn't assault Mrs Weir."
Counsel then turned to the charge of breaching the restraining order and a little later returned again to the charge of assault. As to that, his submission was that the learned Magistrate had the evidence of the complainant which he was entitled to accept but he asked his Worship to look at the evidence of the video in which the appellant denied assaulting her. The court was therefore in the position of weighing up the word of the complainant against that of the appellant and the complainant's evidence was not so "startling" that his Worship could necessarily accept it over what the appellant had told the police in the video interview.
In relation to the record of interview, his Worship said (AB 33):
"But to clear the air about it, I mean, your client's pleaded not guilty to the matter, and in the record of interview - and I take a different view about the admissibility of that record of interview - but the - - Mr Assafiri said he didn't go to the - - perhaps and in fact Miss Weir had gone to his house."
After some further brief exchanges, his Worship gave his reasons for decision without further retiring. Relevantly, they were as follows (AB 34):
"The overall factual circumstances are fairly straightforward. It's said that there was a restraining order against Mr Assafiri in favour of a Heather Ann Weir, and it's said that on the 9th of February Mr Assafiri breached that order by going to Miss Weir's home, and in the process of - - or during the period there, he struck Miss Weir on the back of the head, one punch to the back of head, constituting the assault.
From the defendant's point of view - - and the state of the evidence is - - depends on one view of things, but Mr Assafiri gave - - has pleaded not guilty to the matter, of course, but gave an explanation that he in fact had never been to - - or hadn't gone to Miss Weir's premises on that day and hadn't - - hadn't assaulted her. So in a sense the video didn't take the matter terribly much further than a not guilty plea. …
I turn to the evidence of Heather Ann Weir. She of course was the complainant - the victim, if you like. I didn't have any concerns, I must say, at the end of the day with Miss Weir's evidence. There were some curious aspects to her evidence. She liked to denigrate gratuitously Mr Assafiri, volunteered often quite damaging and unsolicited material against Mr Assafiri. I concluded that was more a sign of her dislike for Mr Assafiri that had obviously developed over time, without necessarily reflecting on her integrity or honesty.
There were some curious aspects, obviously somewhat amusing; her indication that she didn't drink beer, because she drank champagne. But there was - - as amusing as it might have been, it didn't reflect on her credibility. Nothing to suggest that that wasn't the case, and nothing really that emerged for me in the question - - in the cross-examination or her evidence in-chief that suggested that she was a other than honest witness. She was examined as to her credibility, whether she'd been in a relationship with this fellow Assafiri etcetera. All of the matters she answered, as I say, without giving me any cause for concern that she was being dishonest. There is, it seems to me, nothing that I can point to that would indicate that she was other than telling me the truth about what had happened.
The final witness was Darren William Horne, the officer who's made the complaint in this matter. He of course conducted a video record of interview. I'm of the view that that record of interview should be regarded as being inadmissible. The situation in that regard was that Mr Assafiri was cautioned. There was some difficulty with the caution obviously, because although Mr Assafiri indicated that he could understand it, when he was really asked to repeat in his own words or explain in his own words, he struggled with that.
But then what was absolutely crystal clear was that he made it known on a number of occasions that he didn't want to answer any questions, and said that repeatedly, and yet the interview proceeded. I don't, with respect, think Bunning and Cross has anything to do with the matter, and it is really a situation, in my view, that there is no point in administering a caution which tells people that they don't have to participate in the record of interview, and don't have to answer any questions, and when they then indicate they don't want to participate - - and you just ignore it and continue on.
It - - in my view, appropriate notice has to be taken of the - - of the caution and Mr Assafiri indicated he didn't want to answer any questions. That's exactly what should have happened. He should have - - in my view the interview should have ceased.
The point about Palmer's case; I absolutely accept that it was a different charge and different context, but the point about that case of course is that when you say to somebody, 'Why would someone lie about this,' you run the danger of reversing the onus of proof. It's not up in this case to Mr Assafiri to have to nominate why it might be that Miss Weir would make up things. That's not his job at all and, as I say, one runs the danger of reversing the onus of proof.
It's up to the prosecution to prove matters, not up to the defendants to explain why people might lie against them, and that's really the cornerstone of the dicta in Palmer's case. That's why I expressed the view, which I adhere to, that the officer shouldn't have asked why Miss Weir would say these matters. That's really a question for Miss Weir, and simply all that needed to happen was the propositions that Miss Weir was saying just simply needed to be put to Mr Assafiri.
Now I take the view that the video was inadmissible. Now I know to some extent that leaves the situation that Mr Assafiri then hasn't explained to some extent his version of things, because it would leave the court without evidence in that regard. But as I indicated earlier, the situation is anyway that Mr Assafiri has pleaded not guilty to the matter, and it was always up to the prosecution to prove the matter, and Mr Assafiri's explanations, as much as they could ordinarily be taken into account, really don't take the matter much further than in my view the not guilty plea.
If I'm wrong about the admissibility of the evidence of the video of interview, I simply make these observations; that Mr Assafiri said that he didn't go to the house and didn't assault Miss Weir, and that if anything, it was the case that she'd come to his place, and he was complaining about some incident where some bottle was involved, and some smashing and things like that. I simply, without trying to labour it too much, make the point that whatever his explanation was, it's not up to Mr Assafiri to do other than give an explanation if he wants to. If these matters are to be proved, it's up to the prosecution to prove them. …
As far as the assault matter is concerned, the - - looking at the - - at the matter, it seemed to me that - - as I've indicated, that Miss Weir was a credible witness. Now I've approached it on the basis that her evidence is to be critiqued only if I am satisfied that she is an honest and accurate witness - can I accept it - and of course Mr Assafiri has challenged that; if one takes into account what he said in the video, challenged it by saying of course that he had never - - hadn't gone to her place and hadn't assaulted her.
So her credibility was very much on the line, but there was nothing, as I indicated earlier, that made me doubt what she said. And I find in that regard that she was at home, as she indicated; on this day, that Mr Assafiri turned up uninvited and came into her house, that there was a situation where it was obvious that she wanted him to leave, or it became fairly obvious. I accept that she went to make a phone call and that Mr Assafiri punched her in the back of the head and left.
Although of course it followed that not having eyes in the back of her head, that the - - her evidence about it being with a closed fist and the right hand one could argue with, but she explained that by saying she felt the blow and concluded it was a fist, and she knew that Mr Assafiri was right-handed. So that was how she came to that view. Nothing turns on it, because there's no question about the application of force described in that way. Whether it was with a closed fist or an open hand, it constituted an assault."

I have watched the video record of interview ("the VROI").
The appellant is an invalid pensioner. It is obvious he has some mental disability. He became emotionally aroused from time to time at the questions being put to him. When he was told what the interview was about, he said he was not going to answer any questions. He repeated that emphatically a number of times. Nonetheless, the officer continued with the interview. The complainant's allegations were put to the appellant on several occasions. Each time he denied them loudly and emphatically. He vociferously asserted that he had not gone to her unit and that in fact she had gone to his four or five weeks before. He said he had not been to her unit that year.
The constable asked him several times "Why would she say you were there?" to which the appellant responded that "She makes up stories" and he repeatedly denied all the allegations put to him, saying he was not there.
The appellant told the officers he was at the Disability Services office at Balga at 10.30 that day and they took him home because they needed to wait for a plumber.
Again he was asked why the complainant would say all this, to which he replied that she was an alcoholic.
He said she had come to his place on 9 February about 9.30 am. She had two bottles under her arm and asked to come in. He refused. He said she threw the bottles and smashed them. There was glass everywhere.
He said he was never at her house and never touched her. The police officer asked whether she was making it all up and he said she was.
Against that background I turn to the grounds of appeal, which are:
"2.1The learned Magistrate made an error of law in his determination during his reasons for decision (given ex tempore) that the video record of interview of the appellant by Police was inadmissible.
PARTICULARS
2.1.1The Police adduced the interview without objection by defence Counsel and once received into evidence, it was not then open to the learned Magistrate to rule, at the time of giving his reasons for decision, or at all, that the evidence was to be disregarded determine (sic: by determining) that it was inadmissible.
2.1.2The learned Magistrate relied upon the case of Palmer v R (1998) 193 CLR 1 and rendered the whole of the said interview inadmissible but this case had no application to the case of the appellant and in any event, only that part of the interview that was objectionable, should be deleted.
2.1.3The appellant was thereby deprived of evidence of his denial to be considered in his defence and also as to whether the charges against him were proved.
2.2The learned Magistrate erred in his reasons for decision (by saying words to the affect (sic) of) after ruling the interview inadmissible, 'that in any event the denial of the appellant in the interview took his plea of not guilty no further' and this is an error of law.
PARTICULARS
2.2.1The appellant denied the allegations to the Police and this was evidence that required to be weighed with the testimony of the complainant and other evidence, but after it was rendered inadmissible there was no evidence that the appellant had denied the offence.
2.2.2The learned Magistrate linked the denial of the appellant as evidence to the plea whereas the evidence given in the trial is not determinative of the plea at all and has no necessary nexus with it at all.
2.2.3The learned Magistrate reversed the onus of proof in his determination that the denial took the plea no further.
2.3The learned magistrate appears to have been provided with a report concerning the appellant that contained references to his previous record, at a time prior to his determination of guilt on the charges that are the subject of this appeal and this was an error of law."
Ground 2.3 was not pursued.
The appellant submits the first error of law made by the learned Magistrate was that once having received the VROI into evidence without objection, it was not then open to him to rule in the course of giving his reasons (nor at all) that it was inadmissible.
If this ground is taken as it reads, as an assertion that once having received evidence tendered by one party without objection by the other, a court cannot thereafter rule that evidence inadmissible, it is untenable. The general proposition is that it is the duty of a judicial officer to ensure that the verdict is founded only upon legally admissible evidence (R v Gibson (1887) 18 QBD 537). The critical point is accordingly that at which the tribunal comes to make its decision. This is reflected in the common practice of admitting evidence "conditionally" in the expectation that other evidence upon which it depends for its relevance or admissibility will be forthcoming. Sometimes that "legitimising" evidence is not forthcoming, so that at the end of the trial the "conditional" evidence is ruled inadmissible.
It is also reflected in the practice (in civil cases or appeals at least) of a court receiving evidence subject to a ruling on its admissibility to be made at a later stage, or even in the course of judgment.
More to the point here though, it is always open to a trial Judge (or Magistrate) to revisit an earlier ruling on evidence, in the course of a trial. This was succinctly expressed by the New South Wales Court of Criminal Appeal in R v Steffan (1993) 30 NSWLR 633; (1993) 67 A Crim R 506 at 639; 511:
"But rulings on evidence may always be altered - although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind."
That proposition was apparently thought to be so self‑evident as not to require the citation of authority. In my view it is, with respect, an accurate statement of the law.
The next error of law it is said the learned Magistrate made was to hold the interview inadmissible because of the principle in Palmer.
In that case the accused was on trial for sexual offences against a child aged 14. In the course of cross‑examination he was asked whether he could suggest any reason why the complainant would invent allegations against him. He was unable to do so.
It was held (Brennan CJ, Gaudron, Gummow and Kirby JJ, McHugh J dissenting) that the complainant's account gained no legitimate credibility from evidence that the accused could not suggest a motive for her to lie and in the circumstances of the case, the asking of that question had such a prejudicial effect that there may have been a miscarriage of justice.
In their joint judgment, Brennan CJ, Gaudron and Gummow JJ said (at [7]):
"It is one thing to permit cross‑examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross‑examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred … But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross‑examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts."
At [9] their honours observed that a complainant's account gained no legitimate credibility from the absence of evidence of motive and that if credibility which the jury would otherwise attribute to the evidence of the complainant is strengthened by an accused's inability to attribute a motive for the complainant to lie, the standard of proof is to that extent diminished.
The appellant submits that the principle in Palmer had no application to the present case first because the police officer's questions did not go so far as to ask "why would the complainant lie" and secondly because the questions were asked in a police interview and not in cross‑examination at trial.
The first point has no substance. The questions asked by the police officers were initially cast in terms "why would she say you were there?". That can mean nothing other than "why would she say you were there if it were not true?". In the context of the interview, it was precisely the same sort of question which the High Court held improper in Palmer.
Nor does it matter that the questions were asked in a police interview rather than cross‑examination at trial. The point is that they should not have been before the court at all. The mischief is in the court seeing and hearing the defendant being asked the question and having to respond to it. Such questions should not be asked in cross‑examination and nor should they be asked in the course of a police interview. Police officers who ask them run the very real risk, either that those questions and answers will be edited out of the transcript or video record of interview, or that the whole interview will be excluded from evidence.
That brings me to the next limb of this particular, which was that in any event only that part of the interview which was objectionable should have been deleted, the remainder then being in evidence.
An admission or confession by the defendant is admissible for the prosecution as an exception to the rule against hearsay. The rationale is that it is a statement against interest and therefore likely to be true. An admission of a fact in issue or a fact relevant to a fact in issue is accordingly evidence of the fact and so is relevant. Mere denials, however, have no probative value and so are irrelevant and hence inadmissible (R v Haycock [1989] 2 Qd R 56, 59). The prosecution need not, and cannot be compelled to, give evidence of mere denials (R v Graham (1972) 26 DLR (3d) 579; R v Newsome (1980) 71 Cr App Rep 325; Wogandt (1988) 33 A Crim R 31) and nor can the accused elicit them in cross‑examination of prosecution witnesses or give evidence of them in the defence case.
If the prosecution does not tender a statement of the defendant which contains both admissions and self‑serving material, the defendant cannot tender, or seek to elicit by cross‑examination, the self‑serving parts (R v Callaghan [1994] 2 Qd R 300, 303‑4).
A number of the foregoing propositions were canvassed in Kochnieff (1987) 33 A Crim R 1. There the appellant had been charged with a number of counts of indecent dealing with a girl under the age of 14 years. The trial Judge had held there was no case to answer in respect of two counts. The appellant had previously taken part in a record of interview with the police in which he had made incriminatory statements in respect of those counts but not the others. Once the evidence in relation to the two counts was excised, the record of interview contained only what were essentially self‑serving denials. The learned trial Judge held it to be inadmissible on that basis. On appeal, the appellant's counsel argued that self‑serving statements are an exception to the hearsay rule and the record of interview should have gone to the jury. The Queensland Court of Criminal Appeal held that the edited record of interview was properly regarded as a purely prior self‑serving statement and as such the accused could not have tendered it himself nor complain either that the Crown did not press for tender or that the Judge rejected it.
At 3‑5 Connolly J (with whom Kelly SPJ and Moynihan J agreed) said:
"The question then is whether it was correct in point of law to exclude the statement. It was somewhat boldly suggested by counsel for the appellant that self-serving statements represent an exception to the hearsay rule. A short statement of the rule against hearsay is notoriously difficult to formulate but the following, from D Byrne and J D Heydon, Cross on Evidence (3rd Aust ed, 1986) par 16.3 will suffice for present purposes:
'An assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of the truth of that which was asserted.' [Emphasis mine.]
The appellant's counsel sought to have the record of interview, in its edited form, before the jury on the footing that the protestations of innocence contained in it should be received as true. It was therefore hearsay. None of the standard texts which, traditionally, state the rule against hearsay and then enumerate the acknowledged exceptions, includes amongst those exceptions a self-serving statement. On the other hand admissions against interest constitute a recognised category of exception to the hearsay rule and the statement of the exception commonly contrasts the statement against interest with the self‑serving statement. Thus Cross (par 17.18) says:
'The self-serving statements of the parties to litigation are usually inadmissible as evidence of their truth on account of the fear of fabrication to which reference has already been made, but statements adverse to the maker's case are received as proof of the truth of their contents in civil and criminal proceedings.'
Phipson on Evidence (13th ed, 1982), par 16-16 tabulates the exceptions to the hearsay rule. The list includes admissions and confessions of parties. It does not, of course, contain self‑serving statements of innocence. It is said (at par 19-02) that in criminal cases statements made out of court by an accused are admissible against him and, in relation to confessions the word 'against' is italicised. The most generally accepted ground of reception is stated to be 'that a party's declarations, whether for or against his interest when made, may always be taken to be true as against himself': at par 19-04. The proposition that a purely self-serving statement is receivable as evidence of the truth of its contents by way of an exception to the hearsay rule is, in my opinion, contrary to principle. We are, of course, not concerned here with the admissibility of such a statement for a purpose other than the proof of the fact stated, such as the rebuttal of an allegation of recent invention or afterthought. Nor is the principle weakened by the rule that a confessional statement, once tendered by the Crown, is evidence not only against but for the prisoner, in so far as any part of its contents may support his own case. The accused is entitled to have the whole statement put in, including any explanations given by him, which he may elicit by cross‑examination: McGregor [1968] 1 QB 371; 51 Cr App R 338; Higgins v Dorries [1965] Qd R 389 although the tribunal in fact is not obliged to give them the same weight as the confessional matter. However none of this touches the present case. In my view it cannot be doubted that the accused is not entitled to tender his own prior self-serving statements. So much was decided by the Court of Appeal in Newsome (1980) 71 Cr App R 325 at 330 and Steel [1981] 1 WLR 690; 73 Cr App R 173.
In Lopes v Taylor (1970) 44 ALJR 412 at 421, Gibbs J, as he then was, after referring to the view expressed in some Australian cases that self- serving statements made in the course of an admission are admitted only as explanatory of or as qualifying the admission went on to state his own view in the following language:
'On the other hand, there is the view that where one party puts in evidence a statement made by the other the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated, although the court is not bound to accept all parts of the statement as true but may give different weight to different parts of the statement: see Higgins v Dorries; Higgins v Donnelly [1965] Qd R 389 at 395, 396; State Government Insurance Office (Qld) v Saarinen [1967] QWN 23; Horne v Tweed River Transport Pty Ltd (1967) 61 QJPR 114 at 119, 120; Eyre v Nationwide News Pty Ltd (1968) 13 FLR 180 at 185 and Sharp v Hotel International Ltd [1969] VR 103 at 109,110.'
In Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581 at 585 Barwick CJ said:
'The fact that a statement by the driver of the vehicle that the destination of his load was Sydney might be regarded as self-serving would not make the information in the checking slip, otherwise properly in evidence, irrelevant in the resolution of the nature of the carriage, although the tender of a self‑serving statement not otherwise in evidence and having no other basis of admissibility would be rejected.'
With respect, I take this to be a completely accurate statement of the law. I pause to say that the observations of both Barwick CJ and Gibbs J which I have set out, cast doubt on the views expressed in certain of the English cases to which the learned judge referred, to the effect that self-serving statements, though in evidence must not be treated by the jury as evidence of the facts. However that is a problem with which we are not presently concerned: cf Cox [1986] 2 Qd R 55 per Thomas J at 63 et seq.
The edited record of interview in this case was properly regarded as a purely self‑serving statement. As such counsel for the appellant could not have tendered it himself and the appellant cannot be heard to complain either that the Crown did not press the tender of the document or that the learned trial judge rejected it." (My emphasis)
Kochnieff was followed by Walsh J in Penfold v Hobbs, unreported; SCt of WA; Library No 7529; 15 February 1989.
In A Child v Andrews (1994) 12 WAR 552, Steytler J extensively discussed a number of authorities concerning the question whether failure to object to the admission of evidence at trial is necessarily a bar to the successful raising of the fact of the admission of inadmissible evidence as a ground of appeal. His Honour concluded that failure to object, or even the giving of consent, to the tender of inadmissible evidence would not be such a bar. The principles are usefully encapsulated in a passage quoted by his Honour from the joint judgment of Dixon, McTiernan, Webb and Kitto JJ in Shaw v The Queen (1952) 85 CLR 365 at 381:
"The prosecution must take the responsibility for leading the inadmissible evidence. The failure of the prisoner's counsel to object could not make it admissible, but it was calculated to place the presiding judge in a difficult and embarrassing position. For he could not be expected to see in advance that the evidence would never be made relevant. Moreover the failure of counsel to object to inadmissible evidence may provide grounds for an inference that the reception of the evidence can give rise to no substantial miscarriage of justice." (A Child v Andrews (ibid) 558) (My emphasis).
The authorities discussed by Steytler J in Andrews not unnaturally all concerned appeals in which a convicted appellant was seeking to overturn a conviction on the basis that despite the fact no objection had been taken at trial (or even that the evidence was admitted by consent) the conviction should be quashed because certain evidence before the court was inadmissible or ought to have been excluded in the exercise of discretion. The present case is exceptional in that it is the defendant who argues the prosecution evidence ought not to have been held inadmissible. Thus, the proposition accepted in the authorities as expressed in Shaw, that a convicted appellant might have difficulty succeeding on an appeal on such a ground because prejudice would be unlikely to be shown where the evidence was admitted by consent or without objection, has no application here. The convicted appellant contends the learned Magistrate should not have held the evidence inadmissible - not that he should have.

The general principles were discussed in S (2002) 132 A Crim R 326. That was an appeal against conviction on two counts of sexual penetration of a child under the age of 13 years. The trial Judge had refused to allow defence counsel to elicit parts of a video interview with the police that the prosecution had not led. The prosecution had adduced evidence merely that there had been an interview and that the appellant denied the allegations. The Court of Criminal Appeal held that as the prosecution had not led the evidence of the interview, it could not be the subject of questions in cross‑examination by the defence.
Parker J (with whom Anderson and Steytler JJ agreed) set out the general principles in the following passages (at [26] - [27]):
"26Some parts of the total interview could be taken to be against the appellant's interest, so that the whole interview could be regarded as a mixed statement in the sense frequently used in this context. The prevailing overall flavour of the interview was, however, distinctly self‑serving. The law is well settled, however, that by virtue of those parts of the interview which may be accepted as against the appellant's interest, or 'confessional in character', the statement, that is, the whole record of the interview might have been led in evidence by the prosecution: Middleton (1998) 19 WAR 179 at 182 and 189; 100 A Crim R 244 at 247 and 255-256. But if the prosecution determines against introducing the record of interview it could not have been led in evidence or be the subject of questions in cross‑examination by the defence: Callaghan [1994] 2 Qd R 300 at 303-304; (1993) 70 A Crim R 350 at 352-354. This position has been well settled for approaching two centuries: Higgins (1829) 3 C & P 603 at 604; 172 ER 565 at 565.
27The submission of the appellant is that the present case should be regarded as different by virtue of the evidence led, in virtually so many words, by the prosecution that the appellant had denied the allegations. This appears to me to be without substance as a point of distinction. Strictly it may be the position that evidence of the denials ought not to have been led, but it was clearly in the appellant's interest for the jury to know that the appellant had denied the allegations and no objection was made to this. This does not constitute in any real sense an attempt by the prosecution to lead evidence of parts of an out of court statement which suited the prosecution, without adducing the whole of the statement including those parts which favoured the appellant. This was in truth the opposite of that situation. No doubt out of a sense of fairness to the appellant the prosecution led evidence that when interviewed the accused had denied the allegations. The trial judge was not prepared to allow that to provide a springboard for a roaming cross‑examination as to what was said during the interview, or to a viewing of those aspects of the video record of interview which favoured the appellant and were, on many view, self‑serving of his interests. I am not persuaded that this ruling of his Honour was in error as a matter of law or involved any unfairness to the appellant. If there has been any defect in this respect it was one which favoured the appellant by allowing the fact of his denial of the allegations against him to be led as part of the prosecution case." (Emphasis added).
It is patently clear from the VROI that the appellant made no admissions whatsoever. The tape was accordingly not admissible at the behest of the prosecution on that account. To the extent it contains denials by the appellant, they were no more than prior self‑serving statements. As such, they were not admissible to prove the truth of those statements. In short, the content of the tape was not probative of anything. It was therefore irrelevant and inadmissible for that fundamental reason.
But that was not the reason the learned Magistrate held the evidence of the VROI to be inadmissible. This particular of the first ground of appeal assumes his Worship held the VROI inadmissible because it infringed the principle adumbrated in Palmer. On a careful reading of his Worship's reasons, that is not so either.
Having said he was of a view the VROI was inadmissible, his Worship explained the appellant obviously had difficulty understanding the caution, but more importantly, he repeatedly said he did not want to answer questions, yet the interview proceeded. His Worship said that in light of that, the interview should have ceased. This is a conclusion that the prosecution had not satisfied the learned Magistrate that the appellant's answers were made voluntarily - that is, in the exercise of a free choice to speak or remain silent (R v Lee (1950) 82 CLR 133, 149). On the evidence before him, it was open to his Worship to find the appellant's answers may have been given as a result of persistent importunity or sustained undue insistence or pressure (McDermott v The King (1948) 76 CLR 501 per Dixon J at 511; R v Lee, supra).
In the circumstances and in light of what he said, his Worship's conclusion that the evidence was inadmissible could only have been on the basis of a finding he was not satisfied the appellant's answers were made voluntarily, since the only conditions of admissibility of a confessional statement are relevance and voluntariness.
His Worship's following remarks made it clear he also regarded the police officer's questions about why the complainant would make the allegations, as infringing Palmer. He was clearly correct about that, but had the remainder of the interview been admissible (which it was not) it could have been led with those questions and answers edited out. In any event, the presence of those particular questions and answers would not have rendered the evidence inadmissible, merely susceptible to exclusion in the exercise of his Worship's discretion.
It follows from what I have said above, that the appellant was not "deprived of evidence of his denial to be considered in his defence and also as to whether the charges against him were proved". His denials and explanations given in the VROI were not evidence of the truth. They could not have been elicited in cross‑examination and nor could the appellant have given evidence of his prior self‑serving statements made in the course of the VROI, had he taken the witness stand.
His Worship was correct in ruling the VROI inadmissible and it was open for him to do so at any stage of the trial, notwithstanding he had earlier received it in evidence.
That conclusion is enough to dispose of the first ground of appeal as framed, but it was eventually put in argument on the appeal in a somewhat different way and so I shall deal with the way it was actually put.
In substance the contention was that had his Worship ruled the VROI inadmissible when it was sought to be tendered, or at any time before judgment, counsel for the appellant may have conducted his case differently. This is a natural justice or procedural fairness argument.
I would accept the proposition that if a party conducts his or her case on the basis of certain evidence having been accepted into evidence by the court, subsequent exclusion of that evidence without affording the party the right to be heard and, if necessary, to lead other evidence on the point, would prima facie be a denial of procedural fairness which may result in an unfair trial and a miscarriage of justice.
The learned author of "Cross on Evidence Australian edition" notes (at [1675]) that there is authority for the view that in criminal cases, hearsay and other admissible evidence should be excluded by the court even if not objected to by the parties. He observes there are "classical hearsay cases" in which the court excluded such evidence even though it had not been objected to (citing for example R v Gibson, supra and Teper v The King [1952] AC 480 (PC)) and says that the best explanation of them is that they are criminal cases. He quotes the statement of Lord Coleridge CJ in R v Gibson, (supra) that:
"The true principle … is that it is the duty of the Judge in criminal trials to take care that the verdict of the jury is not founded upon any evidence except that which the law allows".
The learned author adds that there are decisions which suggest that in criminal cases as well as in civil, there is a doctrine of waiver, namely that evidence admitted after a conscious decision not to object prevents any point being taken on appeal, although other cases suggest there is no waiver doctrine in criminal cases, although failure to object may be a sign that the evidence was not prejudicial. That was the point made in Shaw, supra.
The evidentiary value of hearsay evidence admitted without objection was the subject of consideration in Radford (1993) 66 A Crim R 210.
The appellant had been convicted of burglary, theft, assault and making threats to kill. The appeal was upheld on a number of grounds. One of them concerned a direction by the trial Judge that there was no evidence the accused had ingested Rohypnol prior to the relevant events. That was in a context in which the defence case was that the appellant had no memory of events between 10.30 pm on 4 May when he had been drinking with a man by the name of Parker at an hotel and 5 am the next morning when he awoke in his car outside the burgled residence and on hearing noises from it, went inside to find his co‑accused, armed and wearing camouflage, terrorising the residents. The Crown case was that he was the leader and had earlier taken part in a robbery to obtain weapons for the raid at the residence. There was evidence that a police constable had seen the appellant sitting on the bonnet of his car and had had a conversation with him elsewhere only an hour or so before the robbery.
The prosecution led evidence of two witnesses who claimed that Parker had told them that he had drugged the appellant with 12 Rohypnol tablets earlier that evening. The appellant sought to rely on the evidence of Parker's claims so as to provide an explanation for his otherwise inexplicable memory loss. The defence submitted to the jury that they should accept he had been drugged, as Parker claimed, and that given the substantial ingestion of the drug described by Parker, he would not have been physically capable of participating in the robbery.
The prosecutor suggested to the jury that the appellant's claim of memory loss was a desperate but convenient ruse when he was confronted with other evidence he had no hope of countering. The prosecutor argued that had so much Rohypnol been put into his system, the appellant would have been incapable of having a conversation with a police officer, as he did, only an hour or so before the robbery. Thus, the fact that the appellant had seized on the suggest that he had been drugged by Rohypnol, being incapable of being true, served to emphasise his desperation to come up with any defence when he knew he was guilty.
The situation therefore was that both the prosecution and defence sought to rely upon this evidence that Parker had said he had drugged the appellant. The Victorian Court of Criminal Appeal noted that evidence was, apparently, hearsay, since Parker did not give evidence at the trial. Neither side submitted that the evidence should be excluded because it was hearsay. Both sides wanted it before the jury and the trial proceeded on the assumption that it was before the jury. It was only on the appeal that the Crown sought to argue that the evidence should not have been admitted and that the learned trial Judge, having on his own motion, excluded the evidence from the consideration of the jury at the last moment, was correct to have done so.
Both the Crown and the defence called expert witnesses as to the effects of Rohypnol.
The court noted that at the end of all addresses and evidence, and before the trial Judge commenced his charge to the jury it had been the Crown which tendered depositions which contained the very passages, relating to Parker drugging the appellant, which it claimed on the appeal to have been inadmissible hearsay; it was the Crown which first called expert evidence as to the effects on the applicant had he taken 12 Rohypnol tablets, in order to discredit his assertion that he had no memory of the events of the night; the Crown did not object to the defence calling an expert witness as to the effects of Rohypnol and the prosecutor addressed the jury on the basis that the material relating to the statements made by Parker was evidence before them and, if believed, would be evidence of the truth of the facts asserted in those statements. He urged them, however, to reject them as being untrue. He further urged the jury that having rejected the truth of the statements attributed to Parker, they could view the appellant's adoption of those discredited statements as evidence of his desperation and opportunism in trying to manufacture a defence.
In the course of his directions to the jury, the trial Judge directed them there was no evidence that 12 Rohypnol tablets (or any other number of them) were ingested by the appellant. Nonetheless, his Honour told the jury subsequently that the two expert witnesses were essentially in agreement as to effect of 12 Rohypnol tablets mixed with alcohol although the jury was not bound to accept that evidence.
At the conclusion of the Judge's directions, the foreman asked what the legal position was "of a person at the scene when a crime is committed, if that person was asleep at the time". The trial Judge told the jury that such a person, provided he had not been involved in any planning, would not be acting in concert nor aiding and abetting and would not be guilty.
Having outlined the evidence in rather more detail than I have above, Phillips CJ and Eames J in their joint judgment said (ibid 225):
"This summary of events in the trial demonstrates that not only was the Rohypnol evidence introduced by the Crown, but on all sides it was referred to throughout the trial and treated as though it was capable of being evidence of the facts. The direction of the learned trial judge that there was no evidence of Rohypnol being administered was not made at the request of the Crown nor after discussions with counsel. Furthermore, it is plain that the issue was one which troubled the jury, hardly surprising given the expert evidence which was called, the repeated references to the statements reportedly made by Parker and the fact of Parker's unexplained absence."
The court thought that the real issue before them was whether, once admitted, even if incorrectly so, the jury were entitled to rely on the deposition material as evidence of the truth of the matter to which it referred and/or whether the Crown was estopped from arguing on appeal that the evidence was inadmissible.
Their Honours referred to the controversy surrounding the question whether in criminal cases, an appellant may be taken to have waived his right to argue that evidence at his trial was inadmissible when no objection was taken to it (see the discussion at 230 and following). Their Honours noted that it is not always the case that it is the Crown which has sought to introduce the hearsay evidence and it has been frequently asserted that the rule against hearsay evidence applies equally to restrain an accused from seeking to tender such evidence as it does to restrain the Crown (230 ibid).
At 231 their Honours said that the authorities concerned with the situation of hearsay evidence being introduced in the face of objection by the opposing party were of limited assistance in the appeal which presented many unusual features. In the case before their Honours, the hearsay evidence was first introduced by the Crown, deliberately and in full knowledge that the accused, far from objecting to it, would rely upon it to support his defence. Furthermore, it was apparent from the transcript that both the prosecution and defence proceeded on the assumption the evidence was capable of being relied upon by the jury as evidence of the truth. When the trial Judge directed the jury that the hearsay evidence of Parker was not evidence that the appellant had been drugged, he did so without any request from the Crown for such a direction and "to the apparent surprise of all concerned" (231).
There is a passage from their Honour's judgment (at 231) which is pertinent to the present appeal:
"Where one party to a civil trial has led his opponent to believe and rely upon the fact that hearsay evidence could be treated as evidence of the facts, thereby not seeking to establish the matter by admissible evidence, the former party may be precluded from objecting to the use of that hearsay evidence: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 at 153, per Gibbs J. Where it is the Crown, in a criminal trial, which has induced that belief on the part of an accused person (and one who, for part of his trial, was unrepresented) justice suggests that the Crown should be similarly precluded from taking this objection on a criminal appeal. Whilst it may be that Radford would not have sought, himself, to call Parker he nonetheless was plainly misled to believe that he had some evidence before the jury to establish the truth of what Parker had said. His belief in that regard was, we venture to suppose, shared by the Crown Prosecutor."
Their Honours concluded that in the circumstances the jury had not been properly directed as to the use which they could make of the evidence of Parker's statements. That was especially so given they were directed they could have regard to the expert evidence, although that depended for its relevance on Parker's statements being capable of establishing as true, his claim that he had introduced 12 Rohypnol tablets into the appellant's beer.
Their Honours said that given that conclusion, it was unnecessary for the purpose of deciding the appeal to determine the question whether inadmissible evidence once admitted without objection became admissible for all purposes. However, their Honours went on to make some observations as to that, as they had concluded the case should be subject to re‑trial and the same question might arise on the re‑trial.
On that issue their Honours said (232):
"We observe that there are many instances in the context of civil litigation where the courts have held that hearsay evidence, once admitted without objection, may be treated as evidence of the facts asserted within its parameters: see Re Lilley [1953] VLR 98; Walker v Walker (1937) 57 CLR 630; Stunzi Sons Ltd v House of Youth Pty Ltd [1960] SR (NSW) 220; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Re Miller [1979] VR 381."
At 232‑3 their Honours concluded:
"There is an absence of clear authority in criminal cases as to the evidentiary value of hearsay evidence admitted without objection. In our view, however, it would be appropriate to apply the principle espoused in the cases in the civil jurisdiction to which we have referred. In the present case deliberate choices were made by the prosecutor to adduce hearsay evidence, then to refrain from objecting to other such evidence and thereafter to address the jury on the assumption that they could, were they minded to do so (but he urged they not be so inclined), accept the truth of that which was asserted. In those circumstances the jury would be entitled to act upon the hearsay evidence as truth of the facts contained within it. In other words, it is too narrow a proposition, as asserted by counsel for the Crown on this appeal, to state that, once hearsay, evidence is always hearsay, and thereby incapable of establishing as fact matters contained within its compass.
This is not to say, of course, that the jury was bound to give equal weight to the assertions contained in the hearsay evidence as they would have given to viva voce evidence or other non‑hearsay evidence. An analogy may be drawn with the situation of a statement of an accused person admitted upon the application of the Crown as an exception to the rule against hearsay because the statement contained admissions against interest made by the accused. In those circumstances the jury is entitled to have regard to, and to treat as evidence of the facts, not only the confessional parts of the statement upon which the Crown relies but also those parts of the statement which would otherwise have been inadmissible because they amount to being self‑serving statements made, out of court, by the accused. (See generally, Cross on Evidence (Aust ed), par 33455.) Thus, in the present case the jury would appropriately need to have been directed that the weight they attached to the assertions contained in the out‑of‑court statements of Parker was a matter for them to decide and that they were not bound to either rely on those statements as proof of the facts or to give the statements the weight which they might give to other evidence before them."

Harper J said that the Crown having introduced the evidence, and having relied upon it, it became part of the common substratum of facts upon which the case was fought (257) and although the Crown might not have been estopped, the situation nevertheless remained that both sides fought the case on the basis that the Rohypnol evidence was before the jury in its hearsay aspect as well as being direct evidence. Both the Crown and the appellant called an expert witness to testify to the effects which Rohypnol has on the person who takes it and the jury were sufficiently in the topic to ask a question which prompted the Crown calling one of those witnesses. His Honour said it would in those circumstances be wrong to exclude the hearsay aspect of the Rohypnol evidence "… even if one could do so without leaving the jury in a state of hopeless confusion" (258).
It can be seen that the outcome of that appeal (in respect of that issue) turned on the failure of the trial Judge to properly direct the jury as to the use which they could make of the evidence of Parker's statements. The observations of Phillips CJ and Eames J as to whether inadmissible evidence once admitted without objection becomes admissible for all purposes, were obiter.
It is arguable that there is a distinction to be drawn for this purpose between hearsay evidence and evidence which is inadmissible for some other reason, for example because it is simply irrelevant (because it lacks any probative value). I incline to the view that authorities such as Re Petition by Van Beelen (1974) 9 SASR 163, Pollitt v The Queen (1992) 174 CLR 558 and Walton v The Queen (1989) 166 CLR 283 would lead to a conclusion that hearsay evidence may well be in a different category.
The rationale for a flexible approach to the admission of hearsay evidence as the truth of what is stated (Walton, supra per Mason CJ at 293 and Deane J at 308; Pollitt, supra per Mason CJ at 565, Deane J at 594 and McHugh J at 621‑2; and Astill (1992) 63 A Crim R 148 per Kirby P at 155‑159) has no application to evidence of a prior self‑serving statement by a defendant, whether sought to be led by the prosecution or the defence.
Another unusual case which in some respects has similar features to the present is that of R v Geesing (1984) 39 SASR 111. Geesing had been charged before Cox J and a jury with the abduction and murder of a young girl. A Crown witness, Mrs Smith, gave evidence of having received a telephone call at her home on a particular date. The caller did not give his name and said that he had picked her number at random. She did not recognise his voice. Things were said which suggested that the caller may have had some part in the abduction of the child. Mrs Smith reported the matter to the police. More than a month later, Mrs Smith found a child's pyjama top on her front lawn. There was evidence from which the jury could conclude it was the top the child was wearing on the night she disappeared. Mrs Smith said she did not know the accused.
When Mrs Smith had told the police all she could, they arranged for her to see a hypnotist. She gave evidence that during hypnosis she recalled seeing someone watching her on two occasions. She gave some details, although not many. In cross‑examination she gave a description of the person watching her which did not match the appearance of the accused in the dock.
All of this evidence had been led by the Crown, without objection by the defence. On indicating some uneasiness about the evidence as it was being led, the trial Judge was told by the Crown prosecutor that the Crown did not propose to call any medical evidence to assist the jury in interpreting and evaluating the evidence of the witness.
A few days after Mrs Smith had given her evidence, the trial Judge told counsel he was doubtful about its admissibility, especially if it stood alone, and said he would like to hear submissions on the subject at some suitable stage of the trial. He invited any party who thought the hypnosis evidence might advance its case to consider calling scientific evidence that might give it some relevance to the trial. No such evidence was called.
When all of the evidence at trial was in and having heard submissions from counsel, his Honour held the evidence was inadmissible. His Honour said he was not satisfied (ibid 115):
"… that Mrs Smith's hypnotic experience has any more relevance to the trial than would be provided by a visual hallucination or a dream or a supernatural vision or some other purely private or subjective experience. What she has said in this court is evidence of what happened on the occasion of the hypnosis, but no more than that. It appears, so far as I can judge, to be irrelevant to this case."
His Honour then came to the point which is presently apposite:
"There remains the question of what ought to be done, or said to the jury, about this part of Mrs. Smith's evidence. The fact is that the evidence went in without objection and the jury has heard it. Mr. Duggan, for the accused, has submitted this morning that, even if the evidence was wrongly admitted (and he argued to the contrary about that), it would not be right to strike the evidence from the record. It ought to be left for the jury to assess as they think fit.
It is not uncommon for evidence to be received conditionally, its ultimate place in the proceedings depending upon the introduction of supplementary evidence that will bestow upon it the requisite degree of relevance to the matter before the Court. Where it transpires that the expected condition is not fulfilled, the conditional evidence is simply ignored. Often the subject of such evidence is of relatively minor importance and its de facto exclusion is just taken for granted at the close of the trial. The evidence under consideration in the present case is unusual because of its subject matter and because the party who introduced it evidently had no intention from the start of fulfilling the necessary condition of its ultimate admission. As a matter of principle evidence, apparently important, that turns out to have been erroneously introduced into a jury trial should, as a general rule, be expressly withdrawn from the jury's consideration. The judge will in such a case tell the jury to disregard the wrongly admitted evidence; he may even, in order to avoid any possible misunderstanding, have it struck out of the transcript. Cf. R. v. Christie [1914] AC 545, at p. 555 and The Queen v. Ireland (No. 1) [1970] SASR 416, at p. 423. However, there may be exceptional cases in which it would be unjust to follow that strict course. For instance, the opposing party may, not unreasonably, have shaped his case according to the evidence that was wrongly introduced. I do not think that could be said of the defence here, and I warned the parties a week or two ago that I might well find this evidence to be inadmissible. Nevertheless I feel some difficulty about actually withdrawing the evidence from the jury's consideration where the party that wants to use it was not the party that wrongly introduced it." (My emphasis).
His Honour concluded that not without some misgivings, he had decided to allow the evidence to stand and simply comment upon it in an appropriate manner in his charge to the jury. The report does not indicate how his Honour dealt with it in the course of his directions, although it is fairly to be inferred that his directions would have reflected his reasons for concluding the evidence to be irrelevant.
In the present case, it was the prosecution which led the VROI, apparently at the request of counsel for the appellant. Had his Worship ruled at the time that it was inadmissible, there could have been no complaint about that. It seems to me the real question on this appeal is whether having accepted it into evidence, his Worship's ultimate ruling, given in the course of his reasons for decision, that it was inadmissible, when it was too late for the appellant to present his case differently, resulted in an unfair trial and a miscarriage of justice.
In considering this, it should be noted that his Worship expressly told counsel for the appellant (AB 33) in the course of counsel's address, that he took a different view about the admissibility of the VROI. Be that as it may, he did not at that stage say he was going to reject the tender of it and both the prosecutor and counsel for the appellant were proceeding on the understanding that the evidence was before the court.
What is clear, however, is that despite having ruled the VROI inadmissible, his Worship actually took into account what the appellant had said in it. He noted the appellant had denied going to the complainant's unit and denied that he assaulted her. He referred to what the appellant had said about the complainant going to his residence and smashing bottles. He approached the assessment of the complainant's evidence bearing in mind it had been challenged by the appellant, not merely by his plea of not guilty, but by positive denials that he had gone to her place and assaulted her. That was the way in which, and extent to which, counsel for the appellant had sought to rely upon that evidence.
In the event therefore, there was no unfairness to the appellant resulting in the way his Worship dealt with the matter and accordingly there was no miscarriage of justice.
I come now to the second ground of appeal. This seems to be directed to his Worship's comments that the appellant:
"… has pleaded not guilty to the matter, of course, but gave an explanation that he in fact had never been to - - or hadn't gone to Miss Weir's premises on that day and hadn't - - hadn't assaulted her. So in a sense the video didn't take the matter terribly much further than a not guilty plea." (AB 34)
and at AB 37:
"… Mr Assafiri's explanations, as much as they could ordinarily be taken into account, really don't take the matter much further than in my view the not guilty plea."
Mr Hanbury submitted that a plea of not guilty is not necessarily a denial of the facts of the case, but is rather a challenge to the prosecutor to prove the charge to a standard. He submitted that a denial in an interview is a denial of the facts and it is open to an accused person to plead not guilty and deny the facts. This does not mean the person is thereby guilty because the denial does not take the matter "much further" and equally, does not mean the person is innocent. He said that in this case the video is the evidence which the defence says proves the not guilty plea and there is no necessary correlation or connection between the evidence that is given and the not guilty plea.
He further submitted the learned Magistrate erred in determining, as a reason for holding the interview to be inadmissible, that the appellant's explanations really did not take the matter much further than the not guilty plea.
He submitted it is not open to a jury (sic) to disregard a denial on the basis it is a bare denial that does not take the plea of guilty any further. He said this implies that if there is evidence that took the plea further (whatever that means or is meant to convey), then his Worship may have "admitted" the record of interview into evidence - and in any event it had already been admitted into evidence.
A not guilty plea puts in issue all elements which the prosecution has to prove. The proposition that such a plea is not necessarily a denial of [all] the facts of the case may be accepted, as the facts of the case may well go beyond merely the essential elements - but it is tantamount to a denial of all the essential elements.
The purport of counsel's submissions on this ground were not easy to understand, but as I apprehend them, they amounted to an argument that a defendant may add to a mere plea of not guilty by denying specific facts relating to, or being elements of, the offence charged. That must be so, but it can be done only by way of admissible evidence.
What his Worship said cannot be construed as indicating any view on his part that the appellant was guilty because his denials to the police did not take the matter much further than his plea of not guilty.
Nor was his Worship's view that the appellant's explanations did not take the matter much further than his plea of not guilty, a reason for holding the VROI inadmissible. I have already adverted to those reasons above. His reference to this at AB 37 was in the vein of noting that a consequence of his ruling was that it left the court without evidence of the appellant's version of events. It was in that context he made the comment the appellant's explanation really did not take the matter much further than his not guilty plea.
The final point to be made about this is what his Worship said can be put no higher than a comment that "as a matter of fact" since essentially all the appellant had said in the VROI was that he had not gone to the complainant's premises on that day and had not assaulted her:
"… so in a sense the video didn't take the matter terribly much further than a not guilty plea". (My emphasis).
That seems to me to be a fair comment. It certainly does not disclose any error of law, as claimed, nor does it indicate any reversal of the onus of proof.
Indeed, the transcript shows his Worship correctly identified that it was up to the prosecution to satisfy the court beyond reasonable doubt as to each element of the offence (AB 35); that the fact the appellant did not give evidence did not mean that the prosecution witnesses were necessarily credible and should be believed (AB 35); and that whatever the explanation given in the VROI, it was not up to the appellant "to do other than give an explanation if he wants to. If these matters are to be proved, it's up to the prosecution to prove them" (AB 37).
The remaining particulars of this ground are covered by what I have already said in respect of ground 1.
This ground too has not been made out.
It follows that the appeal must be dismissed.