R v Brett Staas (No 2)
[2013] NSWDC 220
•04 October 2013
District Court
New South Wales
Medium Neutral Citation: R v Brett STAAS (No 2) [2013] NSWDC 220 Decision date: 04 October 2013 Before: Cogswell SC DCJ Decision: Tender of psychologist's report purporting to contain admissions rejected.
Catchwords: CRIMINAL LAW - Evidence - admissions - hearsay - admissibility of psychologist's report admitted in sentence proceedings objected to in application for confiscation of proceeds of crime proceedings - whether report an admission by offender? - whether hearsay rule applicable? - second hand hearsay - whether report part of "transcript" of earlier sentencing proceedings? - meaning of word "transcript" - report not part of transcript - transcript not the same as an exhibit. Legislation Cited: Confiscation of Proceeds of Crimes Act 1989, s 17.
Evidence Act 1995, s 59, s 68, s 82, s 87.Cases Cited: Lee v R [1988] HCA 60; (1998) 195 CLR 594; (1998) 102 A Crim R 289.
Vickers v R [2006] NSWCCA 60, (2006) 160 A Crim R 195.Category: Principal judgment Parties: Regina (Applicant)
Brett Staas (Respondent)Representation: Counsel:
M L Barr (Applicant)
B Neild (Respondent)
File Number(s): DC 2009/42332
Judgment
Brett Staas was convicted and sentenced for supplying drugs. The Director of Public Prosecutions has brought against him proceedings for the confiscation of what the Director says are proceeds of crime. The Director is represented by Mr M L Barr as Crown Prosecutor.
Mr Barr has tendered a document which I marked for identification 1. It is a psychologist's report. It was tendered on behalf of Mr Staas in his sentence proceedings. Mr Barr has tendered it in these proceedings because, he says, it contains assertions noted by the psychologist to have been made by Mr Staas. Those assertions are said by Mr Barr to be relevant and admissible in these confiscation proceedings. Mr B Neild, who appears for Mr Staas, objected to the tender of the report in these confiscation proceedings, even though he had relied of the same report in Mr Staas' sentencing proceedings.
Obviously, the form of the evidence is hearsay. Mr Barr argues that the psychologist's report is an admission by Mr Staas and therefore admissible as such under the Evidence Act 1995. In addition, he argues that the hearsay rule, which is contained in s 59 of the Evidence Act, does not apply because of s 68. The third limb of his argument turns on s 17 of the Confiscation of Proceeds of Crime Act 1989: he argues that the psychologist's report is part of the transcript of the earlier proceedings.
I will deal first with that last argument. Section 17 of the Confiscation of Proceeds of Crime Act says that if "an application is made to a Court for a confiscation order in respect of a person's conviction of a serious offence, the Court may, in determining the application, have regard to the transcript of any proceedings against the person for the serious offence." It is common ground between Mr Barr and Mr Neild that the sentence proceedings for Mr Staas were proceedings against him in respect of his conviction of a serious offence. The question at issue is whether the psychologist's report, which was admitted as an exhibit in the sentence proceedings, can be said to be part of "the transcript" of those proceedings.
Mr Neild says that the word "transcript" should be given its ordinary meaning, namely, copy of oral evidence given in Court. But Mr Barr said it must be given a broader meaning and encompass the whole of the material referred to in the transcript, which would pick up the exhibit. He pointed out that an exhibit such as the psychologist's report may be read out to a jury, but not necessarily transcribed.
For two reasons I reject Mr Barr's argument that the psychologist's report can be regarded as part of the transcript of the proceedings. The first reason relates to the meaning of the word "transcript". With the agreement of counsel, my associate provided me over the adjournment with definitions of that word from two online sources. One is The Oxford English Dictionary which defines transcript as a "written copy". It may also be a "printed reproduction of this". The Macquarie Dictionary defines, in its online version, transcript as "something transcribed or made by transcribing; a written copy". A secondary definition is, "a reproduction in writing or print". Interestingly, a fourth level definition, with particular reference to law, is "an official written copy of proceedings in a Court". To my mind, those definitions make it clear that the ordinary meaning of "transcript" is something which is heard and then rendered into writing, so that it represents a written copy of what the transcriber heard. That is not the same as an exhibit, be it a photograph, a physical item or a document referred to in the proceedings which are being transcribed. In addition, I put some weight on The Macquarie Dictionary definition by specific reference to law as "an official written copy of proceedings in a Court".
The second reason for my rejection of the argument is that s 17 refers to "a person's conviction of a serious offence". The meaning of "conviction of a serious offence" is set out in s 5 of the same Act, which provides for the circumstances which shall be taken to mean that a person has been convicted of a serious offence. They include the circumstance that a person has been "convicted, whether summarily or on indictment, of the offence by a Court" and that the person "has been charged with the offence and the Court hearing the charge has made an order" under s 10 of the Crimes (Sentencing Procedure) Act 1999, and that the person has been sentenced for another offence, but the Court has taken into account the offence in question. That suggests that the purpose of having regard to the transcript, which s 17 provides for, may be to ascertain whether any of those circumstances referred to in s 5 exist or not. For those reasons, in my opinion, the psychologist's report is not part of the transcript of the sentence proceedings in respect of Mr Staas.
Turning to Mr Barr's other arguments, one of them relies on s 82 of the Evidence Act. I should point out that that provision is contained in Part 3.4 of the Evidence Act, which deals with admissions. Its preceding section, s 81, relevantly provides that the "hearsay rule" does "not apply to evidence of an admission". Interestingly, s 82 goes on to provide that s 81 "does not prevent the application of the hearsay rule to evidence of an admission" unless "it is given by a person who saw, heard or otherwise perceived the admission being made" or "it is a document in which the admission is made".
It is common ground that there is no evidence being given by a person who heard Mr Staas saying what is contained in the psychologist's report. In other words, the psychologist has not been called to give evidence.
Mr Barr says that does not matter because the alternative is that the report is "a document in which the admission is made".
Mr Neild responds to that by saying that the assertions contained in the document which Mr Barr relies upon are irrelevant. He says all that is asserted is that the author of the psychologist's report heard Mr Staas make the assertions which the Crown seeks to rely upon. Mr Neild argues that that fact, namely, that the words were said, is not relevant. What would be relevant would be direct evidence from a person in the witness box saying that they heard Mr Staas saying those words. Mr Neild says that the psychologist's report faces the same problem as the evidence sought to be tendered but rejected by the High Court in Lee v R [1988] HCA 60; (1998) 195 CLR 594; (1998) 102 A Crim R 289 and which was also the subject of discussion in Vickers v R [2006] NSWCCA 60, (2006) 160 A Crim R 195. Tendering the document alone, says Mr Neild, is second hand hearsay. It proves no more than the fact that the words were said. It does not prove the truth of the words. The psychologist cannot be reasonably supposed to have intended to assert, as a matter of truth, what she recorded Ms Staas as saying. Had she been called to give evidence in person, then that would have been a different matter. She would have given direct evidence of what she heard Mr Staas say, and that would, it seems to me, amount to an admission. But that is not the case.
In Vickers, Simpson J (with the agreement of James and Hall JJ) referred at 208 ([64]) to what the High Court had said in Lee about the Evidence Act and "the inherent unreliability of second-hand hearsay, affected as it is by the honesty and accuracy of the recollections of the person who is said to have heard, seen or otherwise perceived the making of the original representation, but who does not himself, or herself, actually give evidence." Her Honour went on to say that if the witness's previous representations in the case being determined by her Honour "as to what he heard the appellant say were to be admitted, there was no way that his honesty or accuracy could be tested or could be evaluated by the jury." That was because, like here, that witness was not called.
To my mind, s 82's reference to "a document" should be interpreted consistently with the High Court's observations about the purpose of the hearsay provisions in the Evidence Act. The document should be a document authored by the person against whom the admission is sought to be tendered. That is consistent with the provision in s 82(a) that the alternative is evidence of the admission being given by a person who perceived it being made. It is also consistent with the wording of the section which provides that the admission "is a document". It seems to suggest that the document itself should be the admission, which is consistent with my opinion that the author of that document should be the person against whom the admission is tendered. In my opinion s 82 does not assist Mr Barr and the report is not admissible under that section.
Mr Barr goes on to argue that the assertions in the report of the psychologist about what Mr Staas said are assertions made by the psychologist on the authority of Mr Staas. He relies on s 87 of the Evidence Act.
To my mind the answer to that question is the point argued by Mr Neild that the document here in question - the psychologist's report - does not contain any relevant admission. It is an assertion made by the psychologist around 13 December 2011, which is the date of the report, of the psychologist's then recollection of what Mr Staas told her when she interviewed him in her office on 6 December 2011. It is no more than an assertion of the psychologist's recollection of the words that Mr Staas said. It is, as Mr Neild says, second hand hearsay.
Were the psychologist called to give evidence and gave evidence in the witness box of what she heard Mr Staas say, and evidence of what she heard him say amounted to an admission, then they could be admissions. In other words, I do not think the document contains admissions.
Were the document authored by Mr Staas it would contain admissions. Were the psychologist called and, even refreshing her memory from her report, gave an account of what she heard Mr Staas say, then that evidence would be capable of amounting to admissions by Mr Staas.
Finally, I think Mr Barr's reliance on s 68 of the Evidence Act fails for the same reason, that it is a provision about first hand hearsay rather than second hand hearsay, which this is.
To some it may appear that this decision represents a highly technical relief provided to a person who has clearly said things which are relevant and admissible against him. There is some force in that opinion. But the problem is in the form in which the evidence is tendered. It is, as the layman would understand it, hearsay upon hearsay. Had the psychologist herself been called then there would be no problem. The law regards it as important that if something that somebody has said against their own interests is to be admitted in evidence against them, that then there be reliable proof that they said those things. The reliability of that proof needs to be able to be tested. The person who claims to have heard what was said should be examined and cross examined in the witness box. That is the real problem here. The tender of a report by the psychologist deprives the person against whom the material is being tendered, namely Mr Staas in this case, from testing the reliability of what the author of the document says that she heard.
That is the real problem with the evidence and why I reject the tender of MFI 1.
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Decision last updated: 15 November 2013
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