Ku-ring-gai Council v John David Chia (No 3)

[2018] NSWLEC 61

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ku-ring-gai Council v John David Chia (No 3) [2018] NSWLEC 61
Hearing dates:	16, 17, 18 and 20 April 2018
Date of orders:	20 April 2018
Decision date:	20 April 2018
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [15]
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application – evidence – criminal trial – application by defendant to exclude evidence under s 138 of the Evidence Act – subsequent application by prosecutor to adduce on voir dire audio of interviews where transcript of interviews already in evidence – whether relevant – application of prosecutor refused
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) s 119S Evidence Act 1995 (NSW) ss 55, 56, 135, 138
Cases Cited:	Ku-ring-gai Council v John David Chia (No 2) [2018] NSWLEC 44
Category:	Procedural and other rulings
Parties:	Ku-ring-gai Council (Prosecutor) John David Chia (Defendant)
Representation:	Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with A Djemal (Defendant)   Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant)
File Number(s):	2016/00293131

EX TEMPORE Judgment

1. In Ku-ring-gai Council v John David Chia (No 2) [2018] NSWLEC 44, I outlined an application made by the defendant on the third day of these Class 5 proceedings to exclude certain evidence proposed to be adduced by the prosecutor by operation of s 138 of the Evidence Act 1995 (NSW) (‘Evidence Act’) (‘s 138 application’). An application to tender certain audio recordings made by the prosecutor today pertains to the s 138 application. Some background to the s 138 application is set out in my earlier judgment, and I do not propose to repeat it here.

2. Briefly stated, the prosecutor proposes to tender on the voir dire audio recordings of Mr Philip Myles’ interviews with Mr Craig Edgar, Mr Jesse Draeger, and Mr James McKenzie. The transcripts of each of these interviews were tendered by the defendant and have already been accepted as evidence on the voir dire.

3. The application to tender the recordings came before the Court reasonably urgently by way of correspondence to my chambers received late yesterday afternoon. The application is opposed by the defendant. I have heard detailed oral submissions today.

4. The prosecutor submits in the first place that the audio of the interviews is the best evidence of those conversations, but stresses that this is not the sole ground upon which the application to adduce them is made, but rather their relevance is borne out by specific examples referable to submissions made by the defendant during his s 138 application.

5. By reference to oral submissions made by Mr Steirn, senior counsel for the defendant, on the third day of hearing in this matter, the prosecutor submits that the defendant seeks to allege that Mr Myles colluded with Messrs Edgar, Draeger and McKenzie to lay the blame for the alleged criminal behaviour in this matter squarely with the defendant. In view of that allegation, the prosecutor says that the Court would be assisted by hearing the tone of the questions put, and any pause between answers.

6. The prosecutor notes that Mr Steirn made reference to eight specific exchanges between Mr Myles and Mr Edgar (Mr Steirn’s references being being at p 166, 167, 168 and from 166 through to 173 of the transcript). The prosecutor submits that the Court would be assisted by listening to the exchanges of Messrs Myles and Edgar in the record of interview referred to by Mr Steirn in order to determine whether they carry the meanings to which Mr Steirn alludes. I was particularly referred to p 170 of the transcript, where Mr Steirn said “the fix is in”. This comment, according to the prosecutor, is emblematic of the collusion between the witnesses and Mr Myles that the defendant alleges.

7. The prosecutor also submits that the transcripts are not entirely accurate records of the audio recordings. However, Mr Howard, senior counsel for the prosecutor, indicated to the Court that he does not consider that the inconsistencies are such as to warrant admitting the audio recordings into evidence in the circumstance that the Court is not convinced of his primary position that the recordings should be heard in order to fully understand the nuance of the conversations.

8. The defendant submits that the argument concerning collusion between Mr Myles and Messrs Edgar, Draeger and McKenzie is not relevant to the s 138 application. Rather, the defendant submits that his application is that Mr Myles improperly inserted into the interviews information which was obtained from the defendant against his objection by operation of s 119S of the Environmental Planning and Assessment Act 1979 (NSW).

9. The defendant submits that submissions are not about any allegation of collusion and therefore not about nuance, but rather about the substance of what was put by Mr Myles in the interviews. The defendant submits that by operation of s 135 of the Evidence Act, the Court may refuse to admit evidence which is misleading or confusing (s 135(b)), or which would cause or result in an undue waste of time (s 135(c)) and submits that the Court should refuse to admit the evidence on either, or both, grounds.

10. In reply, the prosecutor submitted that there are two versions of the defendant’s s 138 application before the Court and that the Court would not be satisfied that the arguments as to collusion are not raised by the defendant. Moreover, the prosecutor submits that the ambit of the defendant’s s 138 application is much broader than a simple s 138 application because he does not simply object to the tender of the transcript but also seeks to prevent the witnesses from giving viva voce evidence.

11. I note that the general rule pursuant to s 56(1) of the Evidence Act is that relevant evidence is admissible. Evidence which is not relevant is not admissible (s 56(2)). Evidence is relevant if it could, if it were accepted, rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings (s 55(1)).

12. I do not consider, in all the circumstances, having looked at the transcript of Mr Steirn’s earlier submissions and having given consideration to the submissions made today, that I will be assisted in the consideration of the application pursuant to s 138 by hearing or listening to the audio of the detailed interviews of which I have the transcripts. I am told that the audio occupies approximately two hours. Although Mr Howard submits that I would not be required to consider the whole of the two hours, without undertaking that course I see no possible way of determining which parts are relevant and which are not.

13. Having regard to the the manner in which I presently understand the defendant puts its case, even if there were various nuances or pauses or the like, I do not believe I would be assisted by hearing them. I also note that whilst the defendant’s claim that there was collusion is not one which the defendant, through Mr Steirn, has specifically disavowed in relation to the conduct of the substantive proceedings, that claim is not relevant to the s 138 application.

14. In the circumstances, and particularly where the transcripts are already before me and will be closely read, including the references to which Mr Steirn took the Court, I do not believe the recordings would assist the Court. Indeed, to hear the audio recordings, I believe would be an unnecessary duplication of the evidence. As such, I decline to receive the audio recordings.

Orders

15. The Court orders that:

1. The prosecutor’s application to adduce evidence on the voir dire is dismissed.

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Decision last updated: 22 May 2018