R v Briggs (No 4)

[2014] NSWSC 853

Supreme Court

New South Wales

Medium Neutral Citation:	R v Briggs (No 4) [2014] NSWSC 853
Hearing dates:	9 June 2014
Decision date:	10 June 2014
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	The evidence will be allowed in the form foreshadowed by the Crown Prosecutor.
Catchwords:	CRIMINAL LAW - EVIDENCE - examination in chief of witness - whether a police officer giving evidence should be permitted to read from his written statement - Evidence Act s 33 - whether written statement was made "soon after the occurrence of the events to which it refers"
Legislation Cited:	Evidence Act 1995 (NSW), ss 32, 33
Cases Cited:	Chisari v R (No 2) [2006] NSWCCA 325 Dodds v The Queen [2009] NSWCCA 78; 194 A Crim R 408 Orchard v Spooner [1992] 28 NSWLR 114 Steve v The Queen [2008] NSWCCA 231; 189 A Crim R 68
Category:	Interlocutory applications
Parties:	Regina Cecil Paul Briggs
Representation:	Counsel: Mr J McLennan (Crown) Mr C Bruce SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2012/399846

Judgment

1. HIS HONOUR: An application has been made by the Crown Prosecutor to have Constable Hill read through his signed statement, pursuant to s 33 of the Evidence Act 1995 (NSW), as his examination-in-chief. Defence counsel has opposed that course. The statement became exhibit G on the voir dire.

1. The chronological background is that the statement recounts events that occurred some time after 3.45pm on 24 December 2012 at Armidale. It also recounts subsequent events with regard to which I understand there to be no objection to the statement being read.

1. The statement is dated 26 December 2012, but it seems that it was signed by the witness at 12.30am on 27 December 2012. Counting from 3.45pm on 24 December 2012, that is two days and almost nine hours after the events in question.

1. Section 33 of the Evidence Act is as follows:

33 Evidence given by police officers

(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.

(2) Evidence may not be so given unless:

(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers, and

(b) the police officer signed the statement when it was made, and

(c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution.

(3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.

1. Only s 33(2)(a) is in dispute. In a nutshell, the question is whether the statement was made "soon after" the occurrence of the events to which it refers.

1. There is a paucity of authority on the point even though, as I understand it, s 33 replaced the almost identical s 418 of the Crimes Act 1900 (NSW) when the Evidence Act commenced in 1995. In Orchard v Spooner (1992) 28 NSWLR 114, Newman J extracted a passage from the Second Reading Speech with regard to s 418 of the Crimes Act. That passage demonstrates that the section was originally directed to ameliorating the laborious process of police officers attempting to memorise statements, and then going through the process at common law analogous to the current s 32 of the Evidence Act. The then Attorney General described that process as a "farce".

1. Newman J said at 119B:

"It is a question of fact for the court hearing a matter to determine whether a witness' statement falls within the indefinite time restraints referred to in the subsection."

1. In that case his Honour held that the reading of a statement made six weeks after the events in question did not fall within the section.

1. In Steve v The Queen [2008] NSWCCA 231; 189 A Crim R 68, although there was a ground of appeal founded upon the section, in the event senior counsel for the appellant did not submit that a statement made approximately eight days after the events in question did not fall within the section.

1. In Dodds v The Queen [2009] NSWCCA 78; 194 A Crim R 408, the ground of appeal was founded on a misapprehension as to the timing of the events described in a statement. The events were not those that had occurred some months before, but rather a review of those events that took place at the time of the making of the statement. Accordingly, the ground was not upheld.

1. Finally, in Chisari v R (No 2) [2006] NSWCCA 325, no error was detected in the decision of the trial judge to permit reliance upon a statement made up to eight days after the events in question. The Court of Criminal Appeal emphasised that the question is a discretionary one, and that sometimes it will be preferable for the police witness to be led through the statement by way of questions and answers, rather than reading it.

1. Here, I consider that the statement was made "soon after" the events in question. I repeat: the timeframe is no more than two days and nine hours.

1. I do not consider that there is any discretionary basis upon which I should refuse the application, bearing in mind that 18 months have passed since the events about which evidence is to be given.

1. Finally, it is a matter for the learned Crown Prosecutor whether he wishes to adduce the evidence by way of the witness reading the statement, or by way of the witness being led through it.

1. My order therefore is that the evidence will be allowed in the form foreshadowed by the Crown Prosecutor.

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