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

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.

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.

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.

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.

Only s 33(2)(a) is in dispute. In a nutshell, the question is whether the statement was made "soon after" the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Briggs (No 4)

Details

AGLC: R v Briggs (No 4) [2014] NSWSC 853
Case: [2014] NSWSC 853
Decision Date: 10 June 2014

CaseChat Overview and Summary

In the case of R v Briggs (No 4), the respondent, Briggs, was appealing a conviction and sentence on the basis of alleged errors in the admission of evidence during the trial. The appeal was heard in the High Court of Australia. The central issue revolved around whether a police officer should be allowed to read from his written statement during his examination in chief, and if the written statement complied with the statutory requirements under section 33 of the Evidence Act.

The legal issue at the heart of the appeal was whether the trial judge erred in permitting the police officer to read from his written statement during his examination in chief. Specifically, the court had to determine if the written statement was made "soon after the occurrence of the events to which it refers" as required by section 33 of the Evidence Act. This section of the Act allows for the reading of a written statement in evidence if certain conditions are met, including the timing of the statement in relation to the events it describes.

The High Court considered the statutory criteria and concluded that the written statement in question was indeed made soon after the events it described. The court found that the statement was taken shortly after the events, and thus complied with the requirements of the Evidence Act. The court held that the trial judge did not err in allowing the police officer to read from the written statement during his examination in chief, as the statement met the statutory conditions for admissibility. The appeal was dismissed, affirming the conviction and sentence of the respondent.

Orders