Director of Public Prosecutions v Paterson
[2024] ACTSC 313
•16 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Paterson |
Citation: | [2024] ACTSC 313 |
Hearing Date: | 10 October 2024 |
Decision Date: | 16 October 2024 |
Before: | Christensen AJ |
Decision: | (1) The representations made on 30 November 2023 are admissions and are admissible at the trial of the accused. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application seeking advanced ruling as to admissibility of evidence – whether representations are admissions – adverse to interest – misleading or confusing – unfair prejudice |
Legislation Cited: | Evidence Act 2011 (ACT) Dictionary pt 1, ss 55, 76, 81, 135, 137 |
Cases Cited: | Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; 205 FLR 217 |
Texts Cited: | Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 19th ed, 2024) |
Parties: | Director of Public Prosecutions ( Respondent) Craig Alistair James Paterson (Applicant) |
Representation: | Counsel M Howe ( Respondent) S Baker-Goldsmith ( Applicant) |
| Solicitors ACT Director of Public Prosecutions Bevan & Co ( Applicant) | |
File Number: | SCC 171 of 2024 |
CHRISTENSEN AJ:
Introduction
By way of application in proceeding dated 30 September 2024, the applicant, who is the accused person, seeks an advance ruling as to the admissibility of representations made to police on 30 November 2023. The grounds of the application, as amended at the hearing, are that:
(a)the representations are not admissions, and are accordingly inadmissible hearsay; or
(b)if the representations are admissions, the probative value is outweighed by the danger of unfair prejudice: s 137 of the Evidence Act 2011 (ACT) (Evidence Act).
The respondent opposes the application, asserting that the representations are admissible as admissions, and that their probative value outweighs the danger of unfair prejudice.
Evidence
The purported admissions were made to police by the applicant during the police investigation into an alleged aggravated burglary and theft that occurred on 25 September 2023. The applicant and a co-accused are alleged to have entered an apartment complex and stolen property. Closed circuit television footage (CCTV) of the alleged entry captures a person that the prosecution contend is the applicant. The identity of the alleged burglar is the primary fact in issue in the criminal proceeding.
Both parties filed material in support of their positions. This included evidence of the representations, which were contained on body worn camera footage taken by the investigating police during the execution of a search warrant at the applicant’s residence on 30 November 2023.
Having listened carefully to the recording, I am satisfied that it contains the following representations:
PoliceDo you wish to declare anything that is listed on the warrant as being here on the premises?
ApplicantYeah, probably the hooded jumper with the ‘ride sideways’ on it…um, when it comes to jeans with tears in them…I think you’ll find quite a number of them…there’s probably a black beanie somewhere.
After being shown a still image from the CCTV footage, the following conversation occurred:
Police Can you tell me what you see on this photo?
ApplicantUm, a pushbike with someone that looks like me, probably could be me, I don’t know…um…yeah.
Police Do you recognise any of the clothing in that image?
Applicant Yeah, [indistinct] …that jumper – hooded jumper
Police So that image is a still of the CCTV footage at Ipima Street in Braddon. You told me you weren’t familiar with that address. We’re alleging that that’s you in that image.
Applicant Yeah
Police Do you have any comment on that?
Applicant No it looks like me
Police Okay. And just to clarify, you do recognise that hooded jumper?
Applicant mmm
Police Do you own that hooded jumper?
Applicant Yep
It was not in issue that the photograph showed to the applicant by police is an image from the CCTV that clearly shows the style and design of the jumper (with the words ‘I ride sideways’ on the front) worn by the alleged offender. The CCTV also shows the alleged offender to be wearing a black beanie, and jeans with tears on them. It was also not in issue that at least the jumper was not located by police during the execution of the search warrant at the applicant’s residence.
Submissions
The primary submission made as to the representations is that they are not adverse to the applicant’s interest, and accordingly are not admissions. The Dictionary to the Evidence Act provides:
admission means a previous representation that is –
(a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b)adverse to the person’s interest in the outcome of the proceeding.
If the Court finds that they are admissions, it was submitted that the representations are equivocal, such that they are of little probative value, with a high danger of unfair prejudice, being the risk of misuse by the trier of fact. On behalf of the applicant, it was submitted that a jury would likely be seduced into the same ‘trap’ as made by the prosecution in concluding that the representations were admissions, when it could be equally open that they are not. There was submitted to be a very high risk of misuse by the trier of fact in mischaracterising the evidence and giving it too much weight.
As the submissions developed, it was apparent that s 135 of the Evidence Act was also relied upon on behalf of the applicant (with counsel who appeared at the hearing not involved at the stage the application was filed), it being submitted that there was a danger of the evidence being misleading or confusing. It was submitted that this danger substantially outweighed the probative value of the evidence. The unfair prejudice asserted was submitted to extend to the admission of the representations compelling the applicant to give evidence to ‘clarify’ his statements, with reliance on this submission being Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 19th ed, 2024) (Odgers) at 1379.
There was no dispute between the parties that the Court is to assess the use to which the evidence might be put at its highest: IMM v The Queen [2016] HCA 14; 257 CLR 300 at 313-314.
The respondent submitted that the Court should approach the matter with reference to the distinct admissions, and that the representations as to recognition of the jumper were clearly adverse. It was submitted that the representations as to any purported recognition of the person in the photo as being the applicant may not be as plainly adverse, but that taken at their highest, the Court would find they were admissions. It was submitted that to the extent there was anything equivocal in the representations, that any prejudice could be addressed with directions to the trier of fact.
During the course of argument, submissions were also made as to the representations regarding the identity of the person in the photograph. It was submitted that this was a lay opinion such that they were not admissible on this basis: s 76(1) of the Evidence Act. As the prosecution raised, s 81(1) of the Evidence Act provides that the hearsay rule and opinion rule do not apply to evidence of an admission.
Accordingly, the determination in this matter becomes one of whether the representations are admissions, and if so, whether a discretionary (s 135 Evidence Act) or mandatory (s 137 Evidence Act) exclusion provision applies. There was no dispute that the preliminary threshold of relevance is met: s 55 of the Evidence Act.
Consideration
It is appropriate to determine the issues that arise with reference to the distinct representations sought to be excluded.
Representation (a) – clothing that accords with items in the warrant
As to representation (a), it can be concluded that, at its highest, the representation amounts to the accused acknowledging ownership, or at least association with through their presence at his premises, items of clothing being:
(a)a hooded jumper with a ‘ride sideways’ design;
(b)a black beanie; and
(c)jeans with tears.
Such items of clothing are said to have been worn by the alleged offender. Only one of these items is particularly distinctive, however it is open for the trier of fact to conclude that the applicant was acknowledging awareness of items that have characteristics consistent with clothing items as described in the warrant.
I am satisfied such an acknowledgment is adverse to the applicant’s interests in the outcome of the proceeding. An association with, if not ownership of, such items is capable of forming a strand within the circumstantial identification case. It is capable of rationally affecting the assessment of the probability of the identity of the alleged offender.
As to the issue of exclusion of this representation, the assessment of the probative value of this portion of the purported admission is, to an extent, informed by the description of the items in the warrant, with this not in evidence for the purposes of the application. However, it did not appear to be submitted that the representations made by the applicant in regard to the clothing items differed in substance from the warrant descriptions such that this could be said to undermine the probative value.
I also observe that in this portion of the representations, the applicant also denies ownership of other items of clothing that police were searching for, by inference being items that are alleged to have been worn or used by the alleged offender. To this extent, this portion of the representations is a mixed statement containing exculpatory and inculpatory representations.
There is a high probative value, and little scope for these representations to be characterised as misleading or confusing. To the extent that the trier of fact may instead conclude that the applicant was simply acknowledging he had clothing items that broadly fit the relevant descriptions, this is a matter that can be the subject of submissions to the trier of fact, and be the subject of directions as to the considerations that inform this evidence.
Representation (b) – recognition of the person in the photograph
In considering the aspect of the representations in which the applicant is responding to questions as to the identity of the person in the image, it has been important to consider this evidence with reference to the footage itself. This has involved viewing the footage and observing the demeanour and the timing of the responses of the applicant. When the evidence is considered in this form, this evidence is, at its highest, the applicant acknowledging he is the person in the photograph.
I accept that when considered purely with reference to the words on a page there may be a perceived equivocalness. But the manner of response by the applicant, that is, how he responds to the questions as to the image of the person shown in the photograph, dissipate any such characterisation. It also dissipates a characterisation of the representations as not being adverse to the applicant’s interest.
The words used of “no looks like me” by the applicant is more in the nature of an acceptance of the reasonableness of the police allegation that it is him. That is, the applicant is accepting that the police consider it is him, because it does look like, and is, him. This portion of the representations is capable of being accepted by the trier of fact as an unequivocal acceptance that the applicant is depicted in the photograph. Accordingly, it is adverse to the applicant’s interest in the outcome of the proceeding and is an admission.
To the extent that any level of equivocalness exists, that is, that it is misleading or confusing, this will again be a matter appropriately the subject of submissions, and as appropriate and necessary, directions. This can include as to matters such as the applicant having made those representations in response only to a photograph. The probative value is not substantially outweighed by the danger that the evidence might be misleading or confusing.
Representation (c) – recognition and ownership of the hooded jumper
The final portion of the representations involving the recognition of the jumper is in two parts. Firstly, the applicant states that he recognises the jumper. I accept that in isolation this could be no more than an acknowledgment of recognising a particular item of clothing with no consequence attached.
However, subsequently, and after representation (b), the applicant unequivocally responds to a question that he owns the particular jumper as shown in the image. At its highest, this is a representation acknowledging ownership of the particular jumper being worn by the person shown in the image, which he has immediately before acknowledged was himself.
I am satisfied that, taken as whole, the representation amounts to an admission. I am further satisfied that this is not misleading or confusing. The probative value is not substantially outweighed by any such danger.
Unfair prejudice
29. As to the submission in respect of the representations as a whole that unfair prejudice is established by there being a consequence of admission that the accused would need to give evidence to respond to a prosecution case containing purported admissions, I do not accept this. No authority, beyond commentary of Odgers, was relied upon in this regard. Rather, authority from the New South Wales Court of Criminal Appeal suggests the opposite: Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; FLR 217 at 293.
30. I do not accept that unfair prejudice can be established solely on a basis that an accused may have to make a forensic choice to respond to the evidence. If that was the law, all evidence that the prosecution seeks to adduce could be said to be unfairly prejudicial. Evidence is not unfairly prejudicial merely because it makes it more likely that an accused will be convicted: Papakosmos v The Queen [1999] HCA 37; 196 CLR 297 at 325.
Conclusion
When the evidence of the representations is considered in the form in which it will be considered by the trier of fact, that is, by watching and listening to the footage showing the applicant as he speaks the relevant words, the representations are adverse to the applicant, and are not misleading or confusing to such an extent warranting or compelling exclusion. Any unfair prejudice, to the extent any arises, is capable of being addressed by directions as necessary and appropriate.
Orders
For those reasons, I make the following ruling, based on the formulation in the application:
(1)The representations made on 30 November 2023 are admissions and are admissible at the trial of the accused.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen Associate: Date: |
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