R v Ambrosoli

Case [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

  1. 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.

  2. 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.

  3. 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…

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R v Ambrosoli [2002] NSWCCA 386
Case
[2002] NSWCCA 386
Decision Date

CaseChat Overview and Summary

In the case of R v Ambrosoli, the appellant challenged the admission of a witness's statement and transcript of evidence at committal into the trial proceedings. The key issue for the court was whether the trial judge correctly admitted the evidence under the hearsay exception provisions of the Evidence Act, specifically sections 65(2) and (3), and whether the probative value of the evidence outweighed any prejudicial effect it might have on the accused. The appeal focused on the decision to admit the statement and evidence of Shane Clement Cornish, who was unavailable to testify as he had evaded his subpoena.

The court examined whether the witness's statement, which was made shortly after the events in question and under circumstances making it unlikely to be fabricated, met the criteria for admissibility under section 65(2)(b) and (c). Additionally, the court had to consider if the accused had a fair opportunity to cross-examine the witness, as required by section 65(3). The judge found that the statement was made shortly after the incident, under reliable circumstances, and that the accused had ample opportunity to test the evidence through cross-examination. The judge also concluded that the probative value of the evidence significantly outweighed any prejudicial effect, adhering to the requirements of section 137 of the Evidence Act.

The court ultimately upheld the trial judge's decision to admit the evidence. The reasoning emphasized the reliability of the witness's account, the thoroughness of the cross-examination, and the critical relevance of the evidence to the case. The appellate court found no error in the trial judge's decision, thereby affirming the admissibility of the contested evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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”)

Decision

Reasons for decision

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”)

Ratio Decidendi

Legal Principle Established

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