R v Forster-Jones
[2019] ACTSC 159
•17 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Forster-Jones |
Citation: | [2019] ACTSC 159 |
Hearing Date: | 17 June 2019 |
DecisionDate: | 17 June 2019 |
Before: | Elkaim J |
Decision: | See [19] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-Trial application –application for co-accused to be declared ‘not available’ to give evidence within the Dictionary meaning in the Evidence Act 2011 (ACT) – application for leave to adduce evidence of previous representations |
Legislation Cited: | Evidence Act 2011 (ACT) ss 17, 59, 65, 66A, 135, 192A |
Cases Cited: | Curtis v R [2014] NSWSC 1392 Lee v The Queen [2014] HCA 20; 253 CLR 455 R v Will [2017] ACTSC 356; 13 ACTLR 81 |
Parties: | The Queen (Crown) Peter Forster-Jones (Accused) |
Representation: | Counsel A Williamson (Crown) R Davies (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 113 of 2018 |
ELKAIM J:
The trial in this matter commenced before me today. The jury, having been empanelled, was asked to return on Wednesday (it now being Monday) when the evidence would commence.
Part of the reason for the delay was to enable me to deal with an application by the Crown, dated 29 May 2019, in which it sought leave, pursuant to s 65(2) of the Evidence Act 2011 (ACT) (Evidence Act), to adduce certain hearsay evidence as set out in its Notice of Intention to adduce evidence of previous representations, dated 28 May 2019. (Unless otherwise stated all references in these reasons to a section refer to a section in the Evidence Act).
The Notice is annexed to an affidavit of Mr James Melloy, affirmed on 28 May 2019. No objection was taken to this affidavit.
The written application was confined to the admissibility of the representations pursuant to s 65(2). It was said that a co-accused, who is being tried separately, was not available to give evidence in this trial thereby generating the exception to the hearsay rule permitted by s 65.
The co-accused was not available, said the Crown, because it would have been unlawful to call him as a witness. This submission was derived from the decision in the High Court in Lee v The Queen [2014] HCA 20; 253 CLR 455 (Lee).
Paragraph 33, in Lee, give substantial support to the Crown’s submission. However as pointed out by Mr Davies, who appears for the accused, s 17(3), especially against the background of s 17(2), appears to directly blunt the Crown’s submissions. The Crown responded that I should follow Lee because it was a decision of the High Court and, if not in stated terms, s 17(3) contradicted the spirit of the decision. The reasons in Lee do not mention s 17(3), nor could the Crown point to any decision where the apparent conflict was discussed, let alone resolved.
The written submissions relied upon by the Crown expanded the application to submit that the representations were admissible under s 66A. When the matter commenced this morning there was a further expansion by the Crown placing reliance upon s 59, to the effect that the representations were in any event admissible because they were not being relied upon to prove the existence of a fact.
The latter expansion of the application, which was not opposed, was perhaps a recognition of the strength, or absence of strength, of the application under s 65.
In my view the Crown is correct in the path it has taken under s 59. It is necessary to briefly state the facts leading up to the alleged murder. On 22 September 2016 the accused, and allegedly the co-offender, went to the house of Mr Eden Waugh, in relation to some drug transactions, and assaulted him.
The Crown says that the two co-accused returned to Mr Waugh’s address on 3 November 2016 and murdered him. The accused has admitted his involvement in almost all of the allegations made by the Crown as charged in the Indictment dated 4 June 2019. This includes a plea of guilty to the manslaughter of the deceased but excludes Count 7 which asserts that the accused murdered the deceased.
The plain issue before the jury is whether or not the accused intended to kill or seriously injure the deceased. The possible reckless indifference of the accused is not relevant to the present argument, although does form part of the Crown case.
The Crown submits that the representations upon which it seeks to rely are relevant to establishing the intention of the accused, namely to silence the deceased to avoid the possibility of him giving evidence which would incriminate, and ultimately imprison, his co-accused.
The Crown submitted that its intent in calling the evidence did not involve proving the existence of a fact, but was confined to providing, assuming the representations were accepted by the jury as having been made, the basis for the drawing of a rational inference that the accused had the relevant intent when discharging the weapon which caused the death of the deceased.
When the Crown opened the case to the jury it was stated that the representations took place in the presence of the accused. It followed, submitted the Crown on the application, that the accused upon hearing the representations, and being particularly close to the co-accused, formed the intent to murder the deceased.
Counsel for the accused said that there was no reliable evidence that the accused was present when the representations were made. The Crown conceded, in discussion during the application, that if it did not establish the presence of the accused, then the representations could not be used by the jury to ground the inference that the Crown says the jury should draw. It is implicit that the probative value of the evidence is significantly enhanced by the representations being heard by the accused.
In my view, strictly limiting the representations to evidence which could lead to a conclusion about the intent of the accused, exempts the representations from falling within the hearsay rule as described in s 59.
I therefore intend to allow evidence of the representations to be adduced through the evidence of Ms Aparicio. However, as I outlined in discussion, if the Crown did not establish the presence of the accused when the representations were made, a direction would be given to the jury, in the strongest terms, to disregard Ms Aparicio’s evidence about the representations.
Although not stated in these terms I understood Mr Davies to submit that if I otherwise thought the evidence was admissible I should nevertheless exclude it pursuant to s 135 because it’s probative value was substantially outweighed by it being unfairly prejudicial to the accused. I agree that it would be prejudicial to the accused but it’s probative value, going to the very essence of the remaining dispute between the parties, is such that I do not think this value is outweighed by the prejudice.
Accordingly, in response to the orally amended application by the Crown, I rule that the evidence of Ms Aparicio may include the representations stated in the Notice dated 28 May 2019.
I note, as stated above, that if the Crown does not establish the presence of the accused when the representations were made then the jury will be directed to exclude the evidence from its deliberations.
The result of this decision is that it is not necessary for me to decide the applications under ss 65 and 66A. I would only add that I would have been very reluctant to find that a provision as plain in its meaning as s 17(3) had been discarded without comment by any appellate court. I note in this regard that the decisions relied upon by Mr Davies (R v Will [2017] ACTSC 356; 13 ACTLR 81, Curtis v R [2014] NSWSC 1392 and MAC v The Queen [2017] NSWCA 219; 328 FLR 276) indicate that the effective extinguishment of s 17(3) is not as apparent as suggested by the Crown.
| I certify that the preceding twenty one [21] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim. Associate: Date: 17 June 2019 |
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