R v Ambrosoli - [2002] NSWCCA 386

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v AMBROSOLI [2002] NSWCCA 386

FILE NUMBER(S):
60886/01

HEARING DATE(S): 1 July 2002

JUDGMENT DATE: 30/09/2002

PARTIES:
Regina
Richard Patrick Ambrosoli

JUDGMENT OF: Mason P Hulme J Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0470

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL:
Crown: GIO Rowling
Appellant: JS Stratton

SOLICITORS:
Crown: SE O'Connor
Appellant: DJ Humphreys

CATCHWORDS:
Evidence Act s65(2)(b),(c) & (3)
Justices Act s48AA, 48A-H

LEGISLATION CITED:

DECISION:
Appeal dismissed

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 60886/01
MASON P
HULME J
SIMPSON J
Monday, 30 September 2002

REGINA v Richard Patrick AMBROSOLI

Judgment

MASON P: The appellant was tried and convicted in the District Court on an indictment containing charges of malicious wounding and assault. He was sentenced to imprisonment for four years with a non-parole period of two years on the first count and to a concurrent term of imprisonment for one year on the second count.
The charges arose out of a mêlée at a New Year’s celebration on 1 January 2000 at the Proud Aussie Tavern at Halliday’s Point near Taree.
The circumstances of the offences were described in the following terms by the trial judge (Twigg DCJ) in his remarks on sentence:
Shortly after midnight on 1 January 2000 the offender was dancing with friends on the dance floor and so too was the victim David Cruickshank. Cruickshank was carrying a glass of beer in his hand and was, so Cruickshank said, fairly drunk, having consumed about fifteen to sixteen schooners of beer that evening. He tripped over a speaker, fell to the ground and spilt his drink onto that speaker. He was approached by the offender and an altercation took place.
There were differing versions at the trial, from various of those who were witnesses, as to how the altercation started and who instigated it however during the altercation Ambrosoli struck Cruickshank in the face with his right hand which was then holding a glass previously held by Cruickshank. The glass broke on impact causing a number of lacerations to the chin and lip of the victim. That is the subject of the malicious wounding conviction. Ambrosoli said, later, to Robert Wickenden, that he did not realise at the time he had the glass in his hand.
After the incident there was a melee involving the victim, Ambrosoli and a number of other of the hotel patrons. Again differing versions as to who caused it but Ambrosoli kicked Cruickshank – this was the assault – and that was admitted by Ambrosoli in the record of interview with Police.
Although he had the opportunity the offender did not give evidence at his trial but he had given a version of events in the record of interview. The basis of that was that Cruickshank was on the dance floor because of his annoying behaviour when he bumped into Ambrosoli and his girlfriend a number of times. He saw him fall over the speaker and spill the beer so he tried to help him. He stated he picked up the glass from the floor and while helping him to his feet Cruickshank wriggled, thrust and thrashed about and his face bumped the glass, smashing it causing the cuts to his face. The essence of that explanation was that there was no malicious intent but that it was an accident. The offender told Police that whilst he was being held he saw Cruickshank hitting his sister-in-law so he kicked him in the head. Once again he claimed his actions were justified in defence of someone else.
By the jury’s verdict that claim of accident or self-defence was clearly negated. That verdict also rejects the evidence of those witnesses who in any way tended to support it. There was strong evidence before the jury, from Crown witnesses, that the offender Ambrosoli was the aggressor during this incident and it was clear that, when the victim was kicked, he was being held. The offender has said more than once, particularly today on his oath, that he likes to have a fight and he prides himself as to his boxing capacity.
The appellant had given a record of interview on 5 April 2000. He did not dispute that he had been involved in a serious altercation with the victim. Nor did he dispute that he was holding the beer glass which smashed into the victim’s face causing him serious injuries; and that he subsequently kicked the victim in the head. However, he said that the beer glass incident was accidental and that it was caused when the appellant tried to help him up after he fell over, spilling beer onto the band’s speaker. He picked up the victim’s beer glass as well and, as the victim started thrashing about, the victim’s head hit the beer glass smashing it and causing the injuries. As to the kicking incident, the appellant said that he acted in self-defence as well as in protection of a family member.
The record of interview contained material capable of leading the jury to have doubts about these explanations. In particular, the appellant said that the victim had been bumping into him all the time on the dance floor and that this was very annoying (ERISP A68, 72).
There is a single ground of appeal, asserting that the trial judge erred in admitting into evidence the statement and transcript of evidence at committal of Shane Clement Cornish (Ex E).
The trial judge’s decision to admit exhibit e
Mr Cornish made a signed statement to police on 17 June 2000 and he gave evidence at committal on 15 November 2000.
The trial took place in Taree and commenced on 19 March 2001. Mr Cornish had attended court in answer to a subpoena to give evidence on 13 March 2001, but he did not return and could not be contacted during the currency of the trial which ran at various dates until 29 March.
On 26 March 2001 the prosecution led evidence as to the police attempts to locate the missing witness. There was then a voir dire inquiry to determine whether the police statement should be admitted. The evidence in that inquiry consisted of Mr Cornish’s statement of 17 June 2000, his evidence at committal (being pp40-56 of the committal transcript) and the notice under s67 of the Evidence Act informing the defence of the Crown’s intention to rely on this material. It was common ground that the material upon which the Crown wished to rely was hearsay. The Crown invoked s65(2) and (3). The defence argued that the matter did not fall within these provisions and that, alternatively, the material should be rejected pursuant to s137.
Judge Twigg set out the first three sub-sections of s65, which read as follows:
65.         Exception: criminal proceedings if maker not available [NSW Act only]
(1)          This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)          The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:
(a)made under a duty to make that representation or to make representations of that kind; or
(b)made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)made in circumstances that make it highly probable that the representation is reliable; or
(d)against the interests of the person who made it at the time it was made.
(3)          The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:
(a)cross-examined the person who made the representation about it; or
(b)had a reasonable opportunity to cross-examine the person who made the representation about it.
…
The learned judge found that Mr Cornish was not available to give evidence, concluding that he was deliberately evading his responsibilities under the subpoena. This finding is not challenged in the appeal.
Addressing the remaining issues, his Honour said this:
Mr Healey on behalf of the accused Ambrosoli pointed out that the incident to which Mr Cornish is referring in his statement and evidence took place on New Years Eve ’99 into 2000 and that the statement that was taken on 17 June and evidence given on 15 November. I am satisfied that the requirements of section 65(2) have been made out. They are made [by me (sic)] within a time after the facts and in circumstances that make it unlikely that the representation is a fabrication. One only has to look at the evidence to see that he is not making anything up. It is in my finding highly probable that the representation is reliable. It may be replete with some vagueness, but it is reliable.
I am further satisfied that the accused had ample opportunity to test the evidence of Mr Cornish when Mr Crozier, an experienced criminal advocate and experienced advocate in criminal proceedings cross-examined the witness, to my mind rather effectively, on 15 November 2000. I say effectively, even so effectively that it impressed an even more experienced criminal advocate in Mr Healey. Mr Healey was good enough to concede that there are many parts of it that assist his client.
I am therefore satisfied that all the requirements of Section 65 have been made out.
I am required by Section 137 to consider the probative value of the evidence and its worth in relation to any prejudice that might be occasioned to the accused.
Section 137 is in the following terms:
“137. In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
The term “probative value” is defined in the dictionary as follows:
“Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”
Section 55(1) makes relevant evidence that if it were accepted could rationally effect the assessment of the probability of the existence of a fact in issue in the proceeding.
By “the risk of unfair prejudice” the Australian Law Reform Commission pointed out is meant the danger that the fact finder may use the evidence to make a decision on an improper perhaps emotional basis, that is on a basis logically unconnected with the issues in the case. That is the evidence might appeal to the horror of the fact finder or trigger some other human reaction that might cause the fact finder to base the decision on something other than the established propositions in the case.
My attention has been directed to the wise words of Chief Judge Hunt, as he then was in Carusi (1997) 92 A Crim R 52 where his Honour put in balance what a court might do in considering the probative value of the evidence as against the prejudice in the unfair way to which I have referred.
His Honour said at page 66:
“The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect.”
I must consider in dealing with unfair prejudice whether it may be unfairly prejudicial to a party if there is a real risk the evidence will be misused by the jury in some unfair way (see R v BD (1997) 94 A Crim R 131) particularly again the words of Justice Hunt at page 139.
Of course this evidence is prejudicial, particularly when you look at the evidence in paragraphs 7 and 8 of his statement where the witness seems to be the only witness who has the best view of this incident at the appropriate moment, and is the one who indicates that he saw what turns out to be the accused, as one looks at it, punch the bloke, apparently Cruickshank, on the ground with his right hand. He says that “At the same time the bloke struck the bloke on the ground, I heard the sound of breaking glass. I realised the bloke was David Cruickshank. I went to his aid and saw the bloke that struck Dave was still holding a broken schooner glass in his right hand.”
Mr Healey took me in some detail to the evidence before the Magistrate where the skill of the cross-examiner gets Mr Cornish to indicate some inconsistencies. That to my mind in testing shows some benefit to the accused.
The evidence is so highly relevant at the proceedings that it is the key to what actually happened. Other witnesses may be elsewhere or far away or got there too late. This man was at the scene and was watching and saw the lead up to the incident, the beer spilling and saw the striking of blow by the accused on the victim. The remainder of his statement of evidence goes to the aftermath, and is all relevant.
Of course it is prejudicial to the accused because it is so strong. That also highlights its probative value. It is to my mind very relevant to the facts in issue in this case and is close to the real essence of what it is all about.
I have weighed the evidence against its prejudicial effect, and its probative value in my opinion by far outweighs its prejudicial effect and I propose to allow the admission of the statement and evidence, including the cross-examination.
CROWN PROSECUTOR: Did you Honour say his cross-examination or examination in chief as well?
HIS HONOUR: The whole lot. All the evidence from page 40 to page 56 of his statement.
HEALEY: 37 is it your Honour, the lot of it?
HIS HONOUR: Page 40 it starts, not 37. The other is to do with the subpoena and that shouldn’t go in before the jury. The evidence starts at line 49 on page 40 and ends at page 56 at line 40. You can make copies of that available if you wish with those parts to which I have referred not included, but I’ll leave that to you Mr Prosecutor.
CROWN PROSECUTOR: We’ll do a number of copies for the jury. Your Honour doesn’t intend me to stand here and read it all out to the jury?
HIS HONOUR: No, make copies is the best way. I assume there’d be no objection.
(I have corrected obvious typographical errors.)
Section 65(2) (b) (representations made “shortly after”)
The appellant submitted that the facts could not possibly fall within s65(2)(b) because lapses of five months (the statement) and eleven months (the committal evidence) fell well outside the time span of a representation “made when or shortly after the asserted fact occurred”. We were referred to the Australian Law Reform Commission Report No 26 Evidence at para 692, Ratten v The Queen [1972] AC 379 at 389-40, Toki (2000) 116 A Crim R 536 at 549-50 and Williams (2000) 119 A Crim R 490 at 500-503.
The Crown did not suggest that s65(2)(b) was engaged. It was not. Indeed, it is far from clear whether the primary judge had this paragraph in mind when he referred to s65(2) in the passage set out above.
Section 65(2)(c) (representation “made in circumstances that make it highly probable that the representation is reliable”)
For s65(2)(c) to apply, the representation must have been “made in circumstances that make it highly probable that the representation is reliable”. I perceive that it was this provision to which Judge Twigg was referring in the opening paragraph of the passage set out above.
In his well crafted and most helpful written and oral submissions, counsel for the appellant took the Court to the authorities discussing s65(2)(c). This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission in the reports which were the primary bases for the introduction of the Evidence Act in the Commonwealth and this State.
There are lines of apparently conflicting authority as to the scope of the word “circumstances” in s65(2)(b) and (c).
The narrower view is represented by the ruling given by Sperling J in the trial of R v Mankotia (unrep, SCNSW, Sperling J 70049/97) where he said:
The second condition prescribed by s65(2)(b) is that the representation was made in circumstances that make it unlikely that the representation is a fabrication. The test is not one of reliability at large. It is a narrower test. First it is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial. Secondly, it is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances.
I would construe “circumstances” to mean the circumstances in which the representation was made, its factual setting at the time it was made. That construction has the effect of excluding from consideration, for the purposes of s65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s65(2)(c).
This construction of s65(2)(b) and s65(2)(c) is contrary to that given to the paragraph in Dean (Dunford J, 12 March 1997, unreported) and in Lock (1997) 91 A Crim R 356 at 360. I respectfully disagree with those decisions in this respect.
An argument put by the Crown in the present case demonstrates that unrestricted consideration of the unlikelihood of fabrication (s65(2)(b)) or of reliability (s65(2)(c)) cannot have been intended by the legislature. The argument was this. Certain of the representations in question in the present case are by the deceased, to the effect that the accused threatened to kill her. The Crown calls in aid the accused’s admission that he did kill her. That fact, it is said, enhances the likelihood that the representations were not fabricated and that they are highly likely to be reliable. The same situation arose in Dean.
The argument has given rise to no serious difficulties in the present case. But what if it were seriously in dispute as to whether the accused killed the deceased? There would have to be a trial within a trial. And, in the present case, the same approach would entitled the Crown to prove that the killing was done with an intention to kill, and without provocation for that matter, all of which would be logically relevant to whether a prior representation that the accused had threatened to kill the deceased was unlikely to be a fabrication or was highly probable to be reliable. The Crown would be entitled to call virtually the whole of its case on the voir dire and the accused would be entitled not only to test it but to answer it by evidence on the voir dire. This cannot have been intended.
The same situation arises in the present case in relation to multiple representations of a threat to kill. The Crown says that if the deceased told several people that the accused had threatened to kill her, each representation fortifies the likelihood that the others are not fabrications by her and are highly probable to be reliable. So too, it is said, admissions by the accused himself of having such an intention (contemporaneous admissions to others and retrospective admissions to the police) have a similar probative value. If that approach is legitimate, the court must decide in such a case whether it accepts such other evidence, and the accused must be entitled to challenge it by cross-examination and to contradict it by giving evidence if he wishes to do so. Again, this cannot have been intended.
The legislature has restricted consideration to unlikelihood arising from the circumstances for a reason. If the legislature had intended unlikelihood to be determined at large, there would have been no mention of circumstances. The only serious question to my mind is the meaning to be given to the phrase “the circumstances”. I have stated my opinion as to that.

Levine J agreed with those remarks in Polkinghorne (1999) 108 A Crim R at 196-7. Bell J cited the passage in R v Jang [1999] NSWSC 1040 and expressed her preference for the approach in Mankotia over that apparently adopted in Lock (1997) 91 A Crim R 356 at 360. She observed (at [11]) that the effect of Sperling J’s construction was to exclude from consideration events subsequent to the representation being made together with other representations made by the same person on other occasions.
Sperling J recognised that his construction was contrary to that given by Hunt CJ at CL in Lock and by Dunford J in R v Dean (unrep, SCNSW, Dunford J 70085/95). The former passage is implicit in its espousal of a broader view of the provisions, which looks at all of the circumstances of the case to determine unlikelihood of fabrication (par (b)) or high probability of reliability (par (c)). In Dean the matter at issue was the admissibility of representations by the deceased prior to her death. They related to threats by the accused to kill her, previous assaults by the accused and a statement that the deceased had decided to leave her marriage to the accused. Dunford J held that such evidence was within s65(2)(c). Addressing the question whether the representations were made in circumstances that make it “highly probable” that the representations were reliable, he said (p6):
The circumstances, in my view, include all the circumstances and there is no reason for limiting them to those known or existing at the time the representation was made, but all circumstances which together go to make it highly probable or otherwise that the representation is reliable may be taken into account. In the present case those circumstances include the breakdown of the marriage, which human experience shows can give rise to allegations and claims that threats have, in fact, been made irrespective of whether the person making the threats intended they be carried out, but in other cases human experience shows that allegations of the threats are themselves fabricated.
On the other hand, there is here in this case another very important circumstance which, in my view, outweighs the dangers to which I have referred, namely, that the threats said by the deceased to have been made have been fulfilled.
…
In my view a representation that a threat to kill had been made followed within a matter of days by the actual killing by the person who made the threat provides a high probability that the representation that the threat was made is reliable. Accordingly, I am satisfied the evidence that the deceases said she had been threatened is admissible in accordance with s65(2)(c). The other evidence in the case, that there had been a break down in the marriage, also makes it highly probable that the representation by the deceased to that effect was also true.
In Conway v The Queen (2000) 98 FCR 204 the Full Federal Court (Miles, von Doussa and Weinberg JJ) also disagreed with Mankotia. Their Honours said (at 244):
[145] We consider, however, that the trial judge erred in holding that the deceased’s statements were admissible pursuant to s65(2)(c) of the Act. It is difficult to see how the deceased’s statements can be said to have been made in circumstances that make it “highly probable” that they were “reliable”. The deceased was plainly confused, and possibly still disoriented, when she spoke to Mrs Dillon. Her recollection of the events of the morning of 25 April 1997 differed each time she recounted the details to a different neighbour. Although in Mankotia Sperling J considered that the word “circumstances” in s65(2)(c) precluded consideration being given to matters such as “inconsistent representations” when determining “reliability”, we respectfully disagree. We think that it is legitimate for a trial judge to have regard to evidence of what the maker of the previous representation has said on other occasions, when determining whether or not it is highly probable that a particular statement was reliable.
[146] The requirement in s65(2)(c) of the Act that it be “highly probable” that a representation be “reliable” in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating “reliability” alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule.
The discussion of the particular scope of “circumstances” in Conway was obiter. Accordingly the principles of stare decisis involving decisions of intermediate courts of appeal on federal legislation that were enunciated in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 are somewhat attenuated.
But the same cannot be said about the later Full Court decision of Williams (2000) 119 A Crim R 490. In a joint judgment, Whitlam, Madgwick and Weinberg JJ said (at 503-5):
[50] The appellant also submitted that the trial judge misconceived the appropriate test to be applied pursuant to both s65(2)(b) and s65(2)(c) because, rather than looking to the surrounding "circumstances" in which the interview was recorded, the trial judge looked to what he considered to be the apparent accuracy of the representations contained therein. The short sections of transcript set out above indicate that his Honour appeared to pay regard to the internal consistency of the representations made in the interview and their consistency with the other available evidence in concluding that they were reliable.
[51] In R v Polkinghorne [1999] NSWSC 704 Levine J said at para[33] that "one must look at the circumstances of the event being narrated rather than the narration itself", and in Mankotia Sperling J said at 10 that:
"... it is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances.
I would construe 'circumstances' to mean the circumstances in which the representation was made, its factual setting at the time it was made. That construction has the effect of excluding from consideration, for the purposes of s65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s65(2)(c)."
[52] This approach was not entirely followed in this Court in Conway. At para [145] the Full Court stated:
"We think that it is legitimate for a trial judge to have regard to evidence of what the maker of the previous representation has said on other occasions, when determining whether or not it is highly probable that a particular statement was reliable."
[53] It was said by Odgers in Uniform Evidence Law 4th ed (2000) at 142 that:
"It is suggested that the better view is that, while the question for the court is whether the circumstances in which the representation was made make it unlikely that the representation was a fabrication, the court should be permitted to consider any other events which are relevant to that issue."
[54] The statutory test is not whether, in all the circumstances, there is a probability (s65(2)(b)) or a high probability (s65(2)(c)) of reliability, but whether the circumstances in which the representation "was ... made" determine that there is such a probability. Following the Conway approach, the trial judge was entitled to consider other available relevant evidence as to all the circumstances in which the statement was made. Nevertheless, whilst it was open to his Honour to consider the consistency of what was said with other material in the Crown case, this is only part of the inquiry as to whether those circumstances make it probable or highly probable that the representation was reliable. His Honour appears not to have adequately addressed the concerns raised at the trial by counsel for the appellant that, at the time of the interview, Mr Stewart had been cautioned that he was suspected of having aided and abetted the appellant, and that a sawn-off rifle had been found in his back yard. In response to the submission that these factors made the circumstances such that the interview was far from reliable, his Honour said in the course of argument:
"Putting aside the denial of any involvement ... what is contained in the record of interview that affects the accused, is wholly reliable, is it not? ... I would understand the aiding and abetting as being some suggestion that Mr Stewart gave refuge or provided a hiding place or provided the means of getting rid of the implements that were used. That would be aiding and abetting or an accessory after the fact. But so far as what the accused did, is concerned, and limiting what Mr Stewart said about what the accused did, what is unreliable about it?"
[55] It appears from these comments and otherwise that his Honour addressed only the question of whether the evidence contained within the transcript of interview was reliable, rather than, as Conway would have it, all the circumstances as to the making of the statement. This was an erroneous approach to s65(2)(c) or a mistaken application of the principle to admit the interview under that section. This is particularly so in light of the onerous requirements imposed by s65(2)(c). In Conway the Court said at para[146]-para[147]:
"The requirement in s65(2)(c) of the Act that it be 'highly probable' that a representation be 'reliable' in order to be admissible is an onerous one. It is easy to see why that should be so. S65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating 'reliability' alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule.
It is true that in Pollitt v The Queen (1992) 174 CLR 558 Mason CJ favoured the development of an exception to the hearsay rule based solely upon 'reliability'. However, the High Court eschewed that approach in Bannon v The Queen (1995) 185 CLR 1, and there are plainly dangers associated with it."
[56] Mr Stewart made the statements in the course of an interrogation of him by police. In Mr Stewart's home, the police had found, buried in the garden, a sawn-off shotgun. Mr Stewart had within the previous few days tended his garden. To possess such a weapon is a serious offence (s5(1) Prohibited Weapons Act 1996 (ACT)). Mr Stewart was, on his own account, a man who would assist a friend who had "done a rort" by making equipment available for the destruction of evidence. He was apparently a drug addict living a fringe existence. He had a variety of reasons to tell the police what he perceived that they wanted to hear. It is very likely that he perceived that they wanted to hear matters that would implicate the appellant.
[57] Further, Mr Stewart was a suspected accomplice of the appellant. Had he given evidence against the appellant (and been liable to cross-examination by the appellant's counsel) the trial judge would have been required to direct the jury that his evidence, if uncorroborated, should not be accepted unless scrutinised with particular care. That is because accomplices notoriously seek to lessen their own blameworthiness by enlarging that of their alleged co-offenders: see eg Webb per Toohey J at 92-93.
[58] Although the resolution of this question of fact does not turn on any impression of any person's demeanour, real respect should be paid to the view of the learned trial judge. Nevertheless, we are unable to feel that his Honour's view was the correct one. There was not, in our view, any unlikelihood that Mr Stewart's statements were fabrications, still less any high probability that his representations were reliable. In our view, his Honour erred in admitting evidence of the statements.
The differences between the various views should not be exaggerated. Let me illustrate by reference to the facts of R v Bedingfield (1879) 14 Cox CC 341, a classical decision described by Lord Wilberforce in Ratten at 390 as “more useful as a focus for discussion than for a decision on the facts”. (The decision was effectively overruled in R v Andrews [1987] 1 AC 281 at 300.) The accused was charged with murder by cutting a woman’s throat and his defence was that she had committed suicide. The deceased came out of the room in which the accused was subsequently found. Her throat was cut and she immediately cried: “See what Bedingfield has done to me”. The statement was ruled inadmissible by Cockburn CJ.
The statement would be clearly admissible under s65(3)(b), but why? It would be because the person who heard the deceased’s statement (being the “previous representation” about the asserted fact of the cause of death) heard that “previous representation” shortly after the asserted fact occurred “and in circumstances that made it unlikely that the representation is a fabrication”. The evidence would also be admissible under s65(2)(c) because, absent special facts, the deceased’s statement was made in circumstances making it highly probable that the representation was reliable. In each case the critical circumstance is (one assumes) the immediacy of the allegation and the unlikelihood that a very seriously wounded person would have had the opportunity or interest to make up a lie about the reason for her cut throat. (I have referred to a “previous representation” about an asserted fact. The latter concept is defined in s59 and, in my view, it is not confined to the alleged crime itself: cf R v Serratore (1999) 48 NSWLR 101 at 108).)
This example from Bedingfield illustrates that there is work for s65(2)(b) and (c), even on the narrower view of “circumstances” adopted by Sperling J.
Note that Sperling J excluded material tending only to “unlikelihood at large” as distinct from “unlikelihood of concoction”. Translated to Bedingfield, this would exclude material concerning the accused’s hostility towards the deceased insofar as that material was tendered on the voir dire as it were, in aid of the admissibility of the deceased’s statement. Such evidence might of course go directly to the jury in its own right, as providing evidence of motive.
Sperling J’s approach treats the paragraphs as directed at the circumstances of the making of the representation. I agree with this reading of the paragraphs. It follows that it is those circumstances that are to be examined to determine unlikelihood that the representation is a fabrication (par (b)) or high probability that the representation is reliable. Since the matter to be determined is the admissibility of the evidence of the person who saw, heard or otherwise perceived the previous representation the focus remains the reliability of the representation, not (directly) the reliability of the asserted fact.
But it does not necessarily follow that evidence of events other than those of the making of the previous representation cannot throw light upon the circumstances of the making of that representation and its reliability as affected thereby. Events subsequent to the representation being made might do this, for example a (genuine) express retraction by the maker of the previous representation, or evidence indicating that the person who made the previous representation was incapable of having heard or seen the matter which was the subject of the previous representation. To this extent, I would doubt the complete accuracy of Bell J’s summation of the impact of Mankotia (par 19 above).
Returning to Bedingfield, assume a second witness who saw the accused brandishing a razor in the presence of the victim. The witness’s evidence would be admissible in the trial, but it would have nothing to say as to the circumstances of the deceased’s “previous representation”. The second witness may not have heard the deceased’s exclamation. It would follow that the evidence of what the second witness saw the accused doing would cast no relevant light upon the circumstances of the making of the previous representation by the deceased.
The cases in the Federal Court differ from Mankotia, but to a degree that should not be exaggerated. They also explain why the Dean/Lock approach to “circumstances” goes too far. In Conway the court held that it was legitimate for the trial judge to have regard to evidence of what the maker of the representation had said on other occasions, when determining whether or not it was highly probable that the hearsay statement sought to be adduced was reliable. As I read par [146] of the extract from Conway the Court was saying that “reliability” alone could not be used on the basis for admissibility, because that represented too radical break from the common law of hearsay evidence. In other words, evidence tending merely to the reliability or otherwise of the asserted fact (usually the ultimate issue at the trial) could not be advanced on the voir dire for or against the admissibility of the evidence of the previous representation.
Such a reading of Conway seems to accord with the way that case was viewed in the later decision of Williams. (The Court in each case included Weinberg J.)
In Williams the Court (at [52]) described the approach in Mankotia as “not entirely followed” in Conway. The passage from Conway quoted immediately after this remark demonstrates the relatively narrow point of disagreement, namely the legitimacy of the trial judge having regard to “evidence of what the maker of the previous representation has said on other occasions”. The passage quoted from Odgers in [53] is similarly confined, but it reinforces the correctness of Sperling J’s exclusive focus on the circumstances in which the representation was made. The need to focus on the circumstances of the making of the statement tendered as the previous representation is emphasised in the balance of the passage I have set out. The trial judge’s error, as found in Williams, was his confinement to examination of the reliability of the material in the record of interview (ie the asserted facts) and his failure to look at the material indicating the likelihood that the person who gave the statement (Stewart) would have fabricated his statement or otherwise have been unreliable in his representations because of his status as an accomplice. This was not an endorsement of what the trial judge did so much as a disendorsement of what he failed to do in determining the admissibility of the hearsay material.
It would therefore appear that Mankotia, Conway and Williams are at one in:
•focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and
•excluding evidence tending only to prove the asserted fact.
In my view this is a correct approach to s65(2). To the extent that Dean and Lock decide otherwise they should not be followed.
The point of disagreement between Mankotia on the one hand and Conway/Williams on the other is the legitimacy of resort to inconsistent or consistent statements of the maker of the previous representation or other circumstances (whenever occurring) directly touching the credibility of the maker of the representation at the time of making the representation (cf the victim in Bedingfield). Sperling J indicated obiter that he would disregard these matters (see his reference to excluding from consideration “other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations have the opposite effect”). On this I prefer the view of the Federal Court, a fortiori because it is presumptively binding having regard to the Marlborough Gold Mines principle. I would, however, emphasise that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s65(2).

Accordingly, I would not exclude reference to events outside the time and place of the making of the previous representation itself from the range of “circumstances” capable of reflecting on the unlikelihood of it being a fabrication when made or the high probability of it being reliable when made.
The upshot in the present case is that material disclosed in the committal cross-examination of Cornish was pertinent to the judicial examination of the “circumstances” of the making of the written statement, as well as the evidence in chief at the committal itself. The totality of the material was both the “previous representation” as well as the information to be examined in testing whether the circumstances of its making (primarily at the police interview culminating in the signed statement) made it highly probable that what it represented as to the appellant’s conduct was reliable. The judge was entitled to take this material into consideration, as he did, in addressing the high probability of reliability issue presented by s65(2)(c).
Judge Twigg held that it was “highly probable that the representation is reliable”. The appellant submits that the committal evidence given by Cornish reveals that his observation of and recollection about the incident was unreliable. We were referred to portions of the committal cross-examination where Cornish said of his statement that
(1)“It seemed to be typed out a little incorrect” (p44)
(2)he just presumed that the police officer would type up his statement the way he told him (p48)
(3)he “pretty much” never read the statement before he signed it (p48)
(4)he wouldn’t say that the part of his statement dealing with the punching of the victim on the ground was entirely accurate (p49)
(5)he was generally unhappy that the statement contains a number of things which were probably incorrect (pp50-51)
(6)there were a considerable number of matters in the statement which were wrong (p53).
In my view, these matters should have led the judge to be not satisfied that s65(2)(c) was met. It is true that Cornish did not abrogate the totality of his statement. Indeed, he was vague about the details of his unhappiness with it. The cross-examiner at committal was generally content to leave it at that. One also gets a distinct impression from the committal testimony as a whole that this was a non-cooperative and hostile witness (as regards the Crown), and one who was willing to assist the defence in a range of matters. However, the earlier signed statement was not given in circumstances that necessarily made it highly probable that it was reliable. This is not to say that a police statement always bears this stamp, but there was enough about the present one to preclude the positive finding of high probability that is the key to admissibility under s65(2)(c).
In my view, the material was not admissible under s65(2)(c).
Section 65(3) (representation made in the course of evidence)
Next, the appellant challenged the finding that the evidence was admissible in light of s65(3).
It is submitted that s65(3) was not engaged because Mr Cornish did not adopt the statement as the truth in his sworn evidence at committal. We were referred to portions of the committal transcript that were not tendered at trial. With some hesitation, I am prepared to look at this material to the extent that it clarifies the way the statement was dealt with at committal, but in the upshot it does not assist the appellant.
The committal took place at Taree before Magistrate Hodgson on 9 June, 23 June and 15 November 2000. Mr M Meyer represented the informant and Mr M Crozier represented the defendant.
At the outset the court was informed that the matter had been listed “for a 48E application”. It was indicated that there was a dispute as to whether the matter was appropriate for three nominated witnesses to be directed to attend in accordance with s48E. At that stage they did not include Mr Cornish because his statement had not yet been given to the police.
Mr Meyer tendered the entire prosecution brief as it then stood. There were lengthy submissions and the matter was adjourned to 23 June.
On 23 June the court was informed that the charges had been amended to include an additional charge of malicious wounding. The prosecution brief of evidence was tendered afresh and admitted without objection (Tr p20). By that stage it included Mr Cornish’s statement of 19 June.
Mr Cornish’s statement was as follows:
1.            This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true.
…
5.            About 9pm on Friday the 31st day of December, 1999, I went to the Black Head Tavern situated in Blackhead Road, Hallidays Point. From memory, I got a lift to the hotel with a friend and met up with my sister Tina, David CRUICKSHANK, brother Larney and a number of other town people that I socialised with but I didn’t really remain with anybody in particular.
…
7.            A short time after midnight I contemplated leaving the hotel to go home and prepare for work. I stood from the table where Tina was seated with myself. Almost immediately after standing I turned to leave via the exit door to the right of out table and I saw a bloke with his back to me on the left hand side of the dance floor getting to his feet. At the time he was down on one knee and I didn’t recognise who it was at that time. There was another bloke slightly to the left hand side of the bloke on the ground. I noticed the other bloke appeared to punch the bloke on the ground with his right hand. I recall the music was still going and the remainder of the people on the dance floor were dancing. At the same time the bloke struck the bloke on the ground I heard the sound of breaking glass. About this time I realised the bloke with his back to me on the ground was David CRUICKSHANK. I went to his aid and saw the bloke that struck Dave was still holding a broker schooner glass in his right hand. At the same time there were a number of others that all crowded around and I lost sight of the bloke that hit Dave.
8.            When I got to Dave, the bar attendant had just got there and there was another bloke that Dave knew but I am unable to recall his name. They were getting Dave to his feet and trying to remove him from that area and take him into the room where they serve the meals. I notice that Dave had a large and deep cut to the left side of his face in the region of his chin. I couldn’t describe the cut at that stage as there was blood covering his face and streaming down onto his shirt and jeans. I helped the other two and took Dave into the rear room that is off to the left of the dance floor. At the same time we were trying to get him into the back room these other blokes were trying to get at him, yelling abuse and that. I remained at the dor and tried to keep the blokes form coming in. I was saying, “Just stay out and leave him” but they were all yelling works like, “No were going to get him”. At the time there was about two or three trying to get past then about five others were backing them up. I said, “Don’t worry about it just leave”. Next think a couple appeared to shape up at me then these girls arrived and started abusing the blokes which put them off and they seemed to stop. I went to bar attendant and spoke to him and he let me out of the dor to the rear of the restaurant area. I went out of the door and turned right and ran toward the front of the club towards the carpark. As I went past the front of the club I just walked as I didn’t wish to draw any attention to myself. As I passed the entrance door I saw the bloke that hit Dave initially on the dance floor.
9.            The bloke I saw both hit Dave and again at the entrance to the club is described as being about, late twenties or early thirties, about 5 foot 10 inches tall, white guy of medium build with short brown hair. At the time he was wearing light coloured jeans and flannelette shirt but I’m not one hundred percent sure because I only got two quick looks at him. I would recognise him again if I saw him.
10.         I went to Dave’s car and drove out of the club towards Black Head as there was a number of blokes with the bloke that hit Dave. I drove around Black Head and then came back to the rear of Red Head Road then back past the club and it looked like it had quietened down. I reversed down the restaurant side to the rear entrance and went to get Dave. At this time I saw there was a fat looking male standing outside, about the middle of the dance floor area and walking towards me. He was it was me then he signalled with his arm, waving around to indicate for someone to come. A number of blokes that were previously at the front entrance with the bloke that hit Dave then came around the corner towards me so I ran and got into the car and took off towards Black Head again.
11.         I did the same as before and drove around Black Head and past the club a number of times. This time I parked the car along Black Head Road and snuck back down without the car to get Dave and Tina out of the club. At this time I was fearful that I would also be assaulted by these blokes.
12.         I returned and managed to get Dave and Tina then drove him back to our house. I had a look at Dave’s injuries and saw that he was still loosing a lot of blood and realised he was going to need stitches. I then drove Tina and Dave to Taree Hospital.
13.         The entire time I was at the club I only had two beers of Victorian Bitter, in schooner glasses. I had the two beers shortly after arriving and never had any other alcohol because I know I had to work. I saw Tina have a couple of drinks but I wasn’t there all the time. Dave and Larney were drinking schooners of beer from memory but I could tell how many theyhad but Dave didn’t appear to be too affected by the alcohol he had, you could tell he had a beer but I would describe him as being drunk. Larney had left the club about 11 or 11.30pm that night. I recall he had left before twelve.
14.         To assist in making this statement I have drawn a rough sketch of the floor plan of the tavern.
…
Senior Constable Muxlow, the police informant, gave evidence about various matters. The case for the prosecution was then closed (Tr p27). Mr Crozier then indicated that he made “an application for a s48E” with respect to the fresh statements. There were then submissions with particular reference to Mr Cornish’s statement, although some of the submissions also address the question whether or not the defendant should be committed for trial. The Magistrate held that Mr Crozier had convinced him “that Shane Cornish is a witness that should attend. There are substantial reasons for him being here and we will get him along to give evidence in the matter” (Tr p34). The proceedings were adjourned part heard to 7 September 2000. It would appear that Mr Cornish failed to attend that day and the matter was stood over until 15 November.
Apparently Mr Cornish again failed to attend on 15 November. There was discussion as to whether or not the informant would “need to withdraw the tender of the witness’ statement” (Tr p38). The matter was stood down in the list and ultimately Cornish arrived at court.
The entirety of his evidence forms the extract on pp40-56 of the committal transcript that became part of Ex E in the trial. After he had been effectively admonished by the magistrate for his discourtesy and lack of cooperation he was then questioned and cross-examined about the statement given to the police on 17 June. Nowhere was he asked in terms to affirm the correctness of the statement. However, very early in the examination in chief Mr Meyer reminded the Magistrate that the statement had already been tendered in evidence (Tr p43). Mr Cornish agreed that his signature appeared on the bottom of each page of the statement. He was asked whether there was any portion that was in any way incorrect (Tr p43) and his response in chief referred only to one portion of §13 about which he made little more than a quibbling amendment (Tr pp43-45). It related to the extent of intoxication of the victim and Mr Cornish ultimately corrected his statement so that it was to the effect that the victim was “getting drunk but … hadn’t reached the stage of being what you would say rolling drunk” (Tr p45). Mr Cornish was asked some additional questions in matters of detail relating to his observations on the night in question.
In the cross-examination that followed Cornish qualified his statement in a number of respects, almost invariably in ready response to leading questions from the cross-examiner. The following extracts are representative of his committal evidence in cross-examination and re-examination:
CROZIER:            Q.           Sir you’ve indicated you didn’t read it before signing it, is that the case?
A.           Pretty much, yeah. I mean I ----
Q.           You just trusted the police to have written out what you said to them?
A.           Yeah I just – I just told him and he typed it out and I just presumed that was ---
Q.           Look, I just want to put to you and you can clarify it for us fairly easily. You notice the other bloke appeared to punch the bloke on the ground. Did you notice that at all?
A.           Well it was – it was so fast, I guess, you know, I heard a glass, I heard a glass smash and then there was just – then there was a scuffle, there was a big scuffle ---
Q.           There was a scuffle, but did you see a man punching a man with his right hand?
A.           Not actually, not actually at that point, no.
….
Q.           So when read this sentence out to you, “There was another bloke sightly to the left hand side of the bloke on the ground. I noticed the other bloke appeared to punch the bloke on the ground with his right hand”, you would say to the Court today, that’s not accurate?
A.           Well I wouldn’t say it’s entirely accurate, yeah. At that point ---
Q.           It’s not entirely accurate?
A.           ---at that point of time, no.
Q.           At that point of time?
A.           Maybe probably afterwards, yeah, like afterwards.
….
Q.           But it’s the case also that you didn’t see a man, right, I’ll read it out very carefully, “I noticed the other bloke appeared to punch the bloke on the ground with his right hand”, did you see that?
A.           Yeah, it depends when, yeah, probably afterwards yeah, after, later on, but not – I mean I’m sort of --
Q.           After, later on?
A.           -- I’m sort of - it’s well I got, I don’t know how to say it. I heard glass smash and then I sort of looked, sort of looked around and then – and the next minute it was pretty much – it was just a big scuffle, it was just that, it was just that fast, it was just.
Q.           But what I’m saying to you?
A.           Yeah.
Q.           You’d agree with me that what the police officer has put there is not correct?
A.           Yeah it’s not, it’s not correct, it’s not.
Q.           And it’s true, is it not, that you didn’t see another bloke slightly on the left hand side of the bloke on the ground. “I noticed the other bloke appeared to punch the bloke on the ground.” Now you say at stage it didn’t happen?
A.           Yeah, there was a guy there, but I didn’t see – I didn’t see a punch thrown at that time.
Q.           You didn’t see a, “there was a guy there, I didn’t see a punch thrown at that time”?
A.           Yeah.
Q.           So you saw the bloke on the ground punched at a later time, is that what you’re saying?
A.           Yeah, the guy – year – not – at a later time.
Q.           Can you recall who that man was that punched him at a later time?
A.           Look I don’t know, I don’t know, I couldn’t, I couldn’t tell you, so it’s that long ago, like it’s New Year’s, it’s --
Q.           Well here’s a man sitting behind him, a man in a black --
A.           In all honesty I would not be able to – I would not be able to confidently say that that was – yeah, I could not identify anyone confidently.
Q.           You couldn’t identify anyone, is that correct?
A.           That’s correct.
…
Q.           And it’s certainly not the case that you saw the man on the ground struck with a glass?
A.           No, didn’t see that, all I heard was glass smashing and that was it.
Q.           And it’s certainly the case you didn’t se the man at the start on the ground?
A.           No – of he was on his knees sort of thing.
….
Q.           Well you’re sitting at the moment quite close to this man and it’s a brightly lit Court room and have a look at him. Is that the man that was standing near the man who was on the ground that we’ve just read about?
A.           I just couldn’t – I couldn’t tell you one way or the other, sorry.
BENCH:               For the record, Mr Crozier was pointing at Mr Ambrosoli the defendant as he asked that question.
CROZIER: Q.       Ambrosoli, the defendant?
A.           I couldn’t tell you one way or the other.
Q.           But would it be fair to say that you’re generally unhappy that the statement that you’ve been given to have a look at today, you’d be unhappy that it contains a number of things that you – probably aren’t correct, are they?
A.           Yeah, I think so, year, yeah I think so.
Q.           So can you say to the Court today, in all honesty and you’re on your oath, that you haven’t seen this man in the vicinity of the man that was on the ground striking him during the night?
OBJECTION.   QUESTION WITHDRAWN.
WITNESS:            Well I can’t, I can’t – like I said, I couldn’t tell you one way or the other, I would – I would – I don’t, I don’t know, I don’t – like I would not have known, like today I could say, I would not have known it was – I wouldn’t have been, if you’d said – if you put five blokes there and said can you just point the one out, I couldn’t, I just couldn’t. So in all honesty I wouldn’t know if it was or it wasn’t that’s just – that’s it.
Q.           Do you say that your recollection of this night is very unreliable?
A.           Yeah, now it is, it’s like 11 months ago.
Q.           At the time you wrote this statement to the police officers?
A.           Yeah even --
Q.           Well you didn’t write it sorry, but you gave them information?
A.           Even then when I was telling the story I couldn’t give him a proper – I couldn’t give him – I would not even be able to identify anyone at that time if I had to, I just give a rough description of what I thought and that, like you know.
Q.           But you’d agree with the contents – if you have a look at your statement in respect of paragraph 7?
A.           Yeah.
Q.           Would you agree that that paragraph 7 that I’ve read out a number of sentences --
A.           It’s not –it’s not the way I would have – I would have like – would have liked – you know, it’s not the way it should have been worded I don’t think.
….
Q.           So it’s be fair to say that – I’ll leave that at that. But you certainly – it’s not the case that you can say, “Look, the glass broke over beside those two or three people”?
A.           That’s right, I couldn’t. I’m sorry, but I can’t, yeah.
….
Q.           Now you say, back in question 8, “As I went to the front of the club I just walked as I didn’t wish to draw any attention to myself as I passed the entrance I saw the bloke that hit Dave initially in the dance floor”, are you happy for that to be in your statement at the moment?
A.           Well it’s – it’s all like quick, quick looks, like you couldn’t – you know, it’s like – I mean I seen what I thought I seen --
Q.           So you’re not actually saying, you couldn’t be sure whether it was the bloke that hit Dave or not?
A.           Yeah I seen what I thought to be – would have been the guy, but I didn’t want to – you know, naturally --
Q.           Give him a good look?
A.           If I, if I look at say – looked at this person for too long well then you know, who knows.
Q.           You don’t recognise this man as being the man?
A.           Oh no I don’t, no, it’s you know --
Q.           But as far as you’re concerned, in general terms sir and in specific terms you wouldn’t be in a position to identify whoever struck Dave?
A.           Yeah, no I couldn’t – yeah I couldn’t say one way or the other. You know if it was a week later or something, possibly, yeah, but not now, no way.
Q.           Would it be fair to say that generally, upon reflection and looking at this statement, there are a considerable number of matters in it that are wrong?
A.           Yeah, looking back through it, yeah. It’s not worded the way I would have probably liked it. Maybe I should have read through it, but all I did is, I just told the way I seen it sort seen things and that was just – I didn’t bother looking at it, because I just thought that it’d be right.
….
Q.           You had a conversation with this man outside and indicated much the same as you’ve said in Court today, is that right?
A.           That’s right, yeah.
….
In re-examination
Q.           No, just listen to the question. What conversation did you have with the defendant about the contents of your statement, if any?
A.           I didn’t really – I didn’t really go into what, what specific parts, I just – was talking about the bits that I wasn’t happy, I didn’t mention, like specific parts.
Q.           You just said – what did you just say you weren’t happy?
A.           Yeah.
Q.           Did you tell him why you weren’t happy?
A.           No, mainly because it probably just wasn’t the way I would have worded it. But I didn’t go into – I didn’t want to go into detail about it.
….
Q.           Did you tell him what you weren’t happy about?
A.           No, I didn’t go into detail, I just said there was bits that I wasn’t happy with and that was pretty much it.

The appellant first submitted that the statement was not “evidence of a previous representation made in the course of giving evidence” (cf s65(3)) because Mr Cornish had not adopted it in his sworn testimony.
I would reject this submission.
It is true that there was no explicit adoption, but this occurred implicitly when Mr Cornish agreed that his signature appeared at the bottom of the statement already admitted into evidence and when he pointed to only one correction he wished to make (Tr pp43-45).
In any event, the statement was given evidential effect by its very terms and the manner in which it was treated at the committal. Subdivision 7A of the Justices Act (ss48-48I) deals with written statements in committal proceedings. So far as presently relevant that subdivision provides:
….
48AA.   Mandatory use of written statements in committal proceedings
(1)Evidence for the prosecution in any committal proceedings must (subject to this section) be given by means of written statements which are admissible as evidence under section 48A.
(2)The evidence of a person need not be given by means of such a statement if the Justice or Justices is or are satisfied, on the application of the informant, that:
(a) the statement was prepared but a copy of the statement could not reasonably be served on the defendant,
(b) any other requirement of this Subdivision relating to the statement could not reasonably be complied with, or
(c) the evidence is additional evidence of a person whose statement has already been admitted in evidence and a further written statement is not appropriate.
(3)If an application under subsection (2) is not granted, the Justice or Justices may:
(a) adjourn the committal proceedings in order to enable the appropriate written statement to be prepared and served on the defendant, or
(b)proceed with the committal proceedings without taking that evidence.
48A.   Evidence in the form of written statements in committal proceedings
(1)Notwithstanding any other provision of this Act, but subject to this Subdivision, a written statement by any person is, if tendered by the informant, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by that person.
(2)Any document or other thing identified in any written statement admitted as evidence under this section shall, if the document or other thing is produced as an exhibit in the committal proceedings, be treated as if it had been identified before the Justice or Justices by the person who made the statement.
(3)A written statement that is inadmissible as evidence under this section by virtue of any provision of this Subdivision may nevertheless be admitted as evidence in accordance with any rule or law of evidence, as if this Subdivision were not in force.
48B.   Copies of statements to be given etc
(1)A written statement is not admissible as evidence under section 48A in any committal proceedings if:
(a) the informant has not served, or caused to be served, before the expiry of such period as the Justice or Justices may direct, on the defendant:
(i)a copy of the statement, together (where relevant) with a copy of the translation of the statement referred to in section 48C or of so much of the statement as is not in the English language, and
(ii)a copy of the proposed exhibits (if any) identified in the statement or, in the case of a proposed exhibit which it is impossible or impracticable to copy, a notice specifying a time and place at which the proposed exhibit may reasonably be inspected,
(b)here a notice referred to in paragraph (a) (ii) has been served on the defendant, the defendant has not been afforded a reasonable opportunity to inspect each proposed exhibit referred to in the notice,
(c)the age of the person who made the statement is not specified in the statement, or
(d)such other requirements (whether of the same or of a different kind) as may be prescribed by the regulations have not been complied with.
(2)In any committal proceedings, the Justice or Justices may and, on the application of or with the consent of the defendant, shall dispense with all or any of the requirements of subsection (1), on such terms and conditions as appear just and reasonable, and accordingly those requirements shall, to the necessary extent, not be applicable in relation to those proceedings.
(3)Subsection (2) does not apply to such of the requirements referred to in subsection (1) (d) as are declared by the regulations to be requirements that may not be dispensed with under subsection (2).
(4)In any committal proceedings, it shall, for the purposes of this Subdivision, be presumed, in the absence of evidence to the contrary, that the age specified in a statement purporting or appearing to be the age of the person who made the statement is in fact the age of that person.
….
48C.   Requirements as to statements
(1)A written statement is not admissible as evidence under section 48A in any committal proceedings if:
(a) the statement is not endorsed in whichever of the following forms is appropriate in the particular case:
(i)except in a case to which subparagraph (ii) applies:
This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in Court as a witness.
The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.
(ii)in a case where the person who made the statement is a child under 12 years of age:
I have not told any lies in this statement.
(b)          (Repealed)
(c) the statement or such an endorsement is not written in a language of which the person who made the statement has a reasonable understanding,
(d) where the statement is written, wholly or in part, in a language other than English, there is not annexed to it a document purporting to contain a translation of the statement, or so much of the statement as is not in the English language, into the English language,
(e) the statement is not signed by the person who made the statement, or
(f) the statement is not signed by another person as a witness, who attested the signing of the statement (by the person who made it or by the person who signed it under subsection (3) on behalf of the person who made it).
(2)In any committal proceedings, it shall, for the purposes of this Subdivision, be presumed, in the absence of evidence to the contrary, that:
(a) the language in which a statement or endorsement is written, as referred to in subsection (1) (c), is a language of which the person who made the statement has a reasonable understanding, or
(b)a signature on a statement purporting or appearing to be that of:
(i) the person who made the statement, as referred to in subsection (1) (e), is in fact the signature of that person, or
(ii)a person who signed the statement as a witness, as referred to in subsection (1) (f), is in fact the signature of a person who attested the signing of the statement (by the person who made it or by the person who signed it under subsection (3) on behalf of the person who made it), or
(c)a statement purporting or appearing to have been signed in accordance with subsection (3) was in fact signed in accordance with that subsection and the signature on the statement purporting or appearing to be that of the person who signed under that subsection is in fact the signature of that person.
(3)If a person who makes a statement is unable to sign it, the statement is for the purposes of subsection (1) to be considered to have been signed by the person if it is signed by another person who:
(a)signs it with the consent of and in the presence of the person who made the statement, and
(b)signs an endorsement on the statement to the effect that the person signed the statement on behalf of, with the consent of and in the presence of the person who made the statement.
(4)A written statement is admissible as evidence under section 48A in a committal proceeding even if it is in the form of questions and answers.
….
48D.   Information as to rights of defendant
(1)A written statement is not admissible as evidence under section 48A in any committal proceedings if the informant has not served, or caused to be served, before the expiry of such period as the Justice or Justices may direct, on the defendant a notice in or to the effect of the prescribed form explaining the effect of this Subdivision and the rights of the defendant in relation thereto.
(2)Where in any committal proceedings the defendant is not represented by counsel or an attorney, a written statement is not admissible as evidence under section 48A in those proceedings if the Justice or Justices:
(a)has or have not addressed the defendant in or to the effect of the prescribed form of words, or
(b) is or are not satisfied that the defendant understands the defendant's rights under this Subdivision.
48E.   Direction to witness to attend
(1)For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices.
(1A) The Justice or Justices must give the direction if an application is made by the defendant or the informant and the other party consents to the direction being given.
(2)In any other circumstance, the Justice or Justices may give the direction only if:
(a)in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence---the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or
(b)in any other case---the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.
(3)The Justice or Justices must not give the direction if the written statement has already been admitted as evidence.
(4)A defendant may apply for a direction under subsection (1) only if the defendant has served on the informant, within such period as the Justice or Justices may direct, a notice that the defendant wishes the person who made the statement to attend at the proceedings.
(5)If a direction has been given under subsection (1), the statement is not admissible as evidence under section 48A in the proceedings, unless the direction has been withdrawn.
(6)A direction given under subsection (1) on the application of a defendant or informant may be withdrawn:
(a)only on the application, or with the consent, of the applicant, or
(b)if the applicant fails to appear, on the application of the other party.
(7)If the Justice refuses or Justices refuse to give a direction under subsection (1), the Justice or Justices must give reasons for doing so.
(8)The regulations may make provision for or with respect to the determination of special reasons under subsection (2) (a) and the determination of substantial reasons under subsection (2) (b).
(9)   In this section:
"offence involving violence" means any of the following offences:
(a)a prescribed sexual offence within the meaning of the Criminal Procedure Act 1986,
(b)an offence under sections 27--30 of the Crimes Act 1900 (attempts to murder),
(c)an offence under section 33 of the Crimes Act 1900 (wounding etc with intent to do grievous bodily harm or resist arrest),
(d)an offence under section 35 (b) of the Crimes Act 1900 (infliction of grievous bodily harm),
(e)an offence under sections 86--91 of the Crimes Act 1900 (abduction or kidnapping),
(f)an offence under sections 94--98 of the Crimes Act 1900 (robbery),
(g)any other offence that involves an act of actual or threatened violence that is prescribed by the regulations for the purposes of this section.
48EA.   (Repealed)
48F.   Rejection of whole or part of statement
(1)Where in any committal proceedings it appears to the Justice or Justices that the whole or any part of a written statement tendered as evidence under this Subdivision is inadmissible, the Justice or Justices shall reject the statement or that part, as the case may be, as evidence. However, the Justice or Justices must not exclude evidence on any of the grounds set out in Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.
(2)Where a part of a written statement is rejected under subsection (1), the Justice or Justices shall, by one of the means referred to in section 36 (4), make a record identifying the part that has been rejected and indicating that it has been rejected.
(3)The regulations may, for the purposes of subsection (2), prescribe the manner of identifying a part of a statement that has been rejected and of indicating that it has been rejected.
48G.   Adjournments
Without limiting the powers of the Justice or Justices to adjourn committal proceedings, the Justice or Justices shall grant such adjournments as appear to be just and reasonable as a consequence of any of the provisions of this Subdivision.
….
48H.   False statements
(1)Where a written statement made by any person is tendered in evidence for the purposes of this Subdivision, the person is guilty of an offence if the statement contains any matter:
(a)that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect, and
(b)that was inserted or caused to be inserted by the person in the statement.
(2)Division 3 of Part 2 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under this section.
(3)A person guilty of an offence under this section is liable:
(a)where the offence is dealt with summarily---to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months, or both, or
(b)where the offence is dealt with on indictment---to a penalty not exceeding 50 penalty units or to imprisonment for a term not exceeding 5 years, or both.
(4)     (Repealed)
….
From these provisions it can be seen that s48AA stipulates that “evidence for the prosecution … must be given by means of written statements”, subject to presently immaterial exceptions. Section 48A made the statement, when tendered by the informant, “admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect”. The statement contained in §1 thereof an assertion as to its own accuracy and truth (as required by s48C(1)(a)(i)) and the other presumptions stipulated in s48C(2) were also engaged.
Next, it was submitted that the statement became inadmissible because a direction to attend had been given to Cornish pursuant to s48E. Subsection (3) states that such a direction must not be given if the witness’s written statement has already been admitted as evidence in the committal.
Portion of the transcript made available to this Court – but not to the trial judge – indicates that the decision to direct Mr Cornish to attend pursuant to the “application for a s48E” was made after the statement had been tendered as part of the prosecution brief (see pars 47-49 above).
The appellant submits that the decision to direct Mr Cornish to attend, pursuant to s48E, effectively amounted to the withdrawal of the statement from evidence. In my view, this does not follow. Section 48E(3) seems to be directed to the timing of the admission into evidence of a written statement.
Section 48E(5) provides that, if a direction is given under subsection (1), the statement is not admissible as evidence under s48A in the proceedings, unless the direction has been withdrawn. Subsection (6) indicates the limited bases upon which the direction may be withdrawn. Of present importance, however, subsection (5) speaks of admissibility. This means that the witness statement will not be capable of being put into evidence over objection so long as the direction remains unwithdrawn. It does not mean that the court must reject a written statement if the parties to the committal are happy for it to go into evidence. So long as the deponent is available for cross-examination, one would expect that this level of cooperation will frequently be forthcoming.
Subsection (5) is thus silent about what happens if the statement is already in evidence. I see no basis for reading it as having the effect of whisking the statement out of evidence sub silentio and regardless of any application being made or determined to that effect.
In any event, this committal proceeded without any such point being taken. The statement had gone into evidence without objection on 23 June 2000, obviously subject to the defence right to press for Cornish’s attendance pursuant to s48E. When Cornish attended and was cross-examined things were sensibly left as they were. I see nothing wrong with such a procedure. If Cornish had become unavailable then it was doubtless open to the Magistrate to exclude the statement.
The appellant submitted that the decision in Manley (unreported, SCNSW, Loveday J, 30 August 1991) was to the contrary. There Loveday J held that, where notice was given requiring the attendance of a witness at committal and where the witness attended and where the defence objected to the giving of evidence in chief by means of the statement, then the totality of his evidence had to be given in oral form.
In 1991 s48E(1) provided:
Witness may be called
48E (1) Where in any committal proceedings -
(a)the defendant has been served with a copy of a written statement, as referred to in section 48B, and serves on the informant, within such period as the Justice or Justices may direct, a notice to the effect that the defendant desires the attendance at those proceedings of the person who made the statement; or
(b)the Justice or Justices (if satisfied that it is in the interests of justice to do so), on his, her or their own motion, or on the application of the defendant, gives or give a direction requiring the attendance at those proceedings of the person who made a written statement tendered as evidence under this Subdivision,
the statement, if not already admitted as evidence in those proceedings, is not admissible as evidence under section 48A in those proceedings if -
(c)in a case to which paragraph (a) applies – the defendant, after serving the notice referred to in that paragraph, does not consent to the admission in evidence of the statement; or
(d)in the case to which paragraph (b) applies – the Justice or Justices, after giving the direction referred to in that paragraph, does not or do not withdraw the direction.
Loveday J referred to this provision, in particular the requirement that the statement “if not already admitted as evidence … is not admissible as evidence under s48A … if … the defendant, after serving the notice referred to … does not consent to the admission in evidence of the statement”.

Section 48E has now been radically recast. It is true that subsection (5) provides that, if a direction has been given under subsection (1), the statement is not admissible as evidence under s48A unless the direction has been withdrawn. But in the present case the statement had already been admitted into evidence, no application was made for its withdrawal and the cross-examination proceeded on the basis that the statement was part of the evidence in the committal.
The only possible procedural defect was the giving of the direction after the statement had already been admitted into evidence (cf subsection (3)). The appellant can hardly complain about that and it has no bearing upon the admissibility issues presented in the appeal.
Section 65(3) was satisfied.

Section 137 (whether evidence should have been rejected because its probative value was outweighed by “the danger of unfair prejudice to the defendant”)

Finally the appellant submitted that Judge Twigg erred in declining to exclude the evidence under the statutory duty imposed by s137 which provides:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
It is submitted that the probative value of the evidence was very low, because in effect the jury were left with two mutually inconsistent versions from the same witness and no means of determining which one was the truth. The danger of unfair prejudice was great because the jury did not have the opportunity of seeing the witness.
This submission misconceives the role of s137. As I said in R v GK (2001) 53 NSWLR 317 at 324:
Section 137 requires the exclusion in criminal proceedings of evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The key term is “unfair prejudice” in the sense of evidence creating “a real risk that the evidence will be misused by the jury in some unfair way”; R v BD (1997) 92 A Crim R 131 at 139, per Hunt CJ at CL; see also Papakosmas v The Queen (1999) 196 CLR 297 at 325-326; Ordukaya v Hicks [2000] NSWCA 180; R v Lisoff [1999] NSWCCA 364 at [52]; R v Toki (2000) 116 A Crim R 536 at 548. Merely because evidence points overwhelmingly to guilt does not make it unfair to adduce it. And even if evidence carries a prejudicial overlay its genuine probative value must be put in the scales.
In the passage from Papakosmas there cited, McHugh J warned against judges being too influenced by the common law attitude to hearsay evidence, and thereby failing to give sufficient weight to the change that the Evidence Act has brought about in making hearsay evidence admissible to prove facts in issue.
Merely because evidence is hearsay and inadmissible under the common law does not render it inadmissible under the Evidence Act nor necessarily unreliable. The jury were given the totality of Cornish’s committal evidence to assess. A direction under s165 might have been sought and given to flesh out the difficulties presented by hearsay evidence from a witness not presented for cross-examination. However, there was no dispute about the committal transcript and the absence of Cornish from the witness box at trial was too obvious to require judicial underlining. In any event no s165 direction was sought.
The appeal should be dismissed.
HULME J: I agree with Mason P.
SIMPSON J: I agree with Mason P.

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LAST UPDATED: 22/10/2002