R v Haines - [2016] SASC 96

Supreme Court of South Australia
(Criminal)
R v HAINES
[2016] SASC 96
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
16 June 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - DEPOSITIONS - OF ABSENT WITNESS - PERSONS UNABLE TO ATTEND THROUGH DEATH OR ILLNESS - GENERALLY
The accused was charged with the murder of her partner on 7 March 2015 in Port Augusta.
At trial, the prosecution intended to tender a written statement of the accused’s mother who was too ill to attend to give evidence, pursuant to s 34KA of the Evidence Act 1929 (SA). The mother was the eye witness to the events leading to the victim’s death.
This is an application by the accused for the exclusion of the statement pursuant to s 34KD of the Evidence Act 1929 (SA). The applicant submitted that the statement-taking process was such that there was a risk of unreliability making it unfair to admit without the option of cross-examination, due to the way in which the police conducted the interview and the ill health of the mother.
Held, allowing the application:
1. The statement is excluded due to the forensic disadvantage to the accused.
Evidence Act 1929 (SA) ss 34K, 34KA, 34KD; Summary Procedure Act 1921 (SA), referred to.
R v Lobban (2001) 80 SASR 550; R v Christie [1914] AC 545, considered.

R v HAINES
[2016] SASC 96
Criminal
KOURAKIS CJ (ex tempore):

Veronica Joan Haines is charged with the murder of her partner Benjamin Reid on 7 March 2015 at Port Augusta. This is an application by the accused for the exclusion of the written statement of an eye witness to the events leading to his death, which the prosecution proposes to tender on her trial pursuant to s 34KA of the Evidence Act 1929 (SA) (the Evidence Act).
The prosecution will lead evidence that Benjamin Reid, who was known as BJ, died of a stab wound to his chest which passed through his lung and the right ventricle of his heart. The accused has made an admission for the purposes of these proceedings that she wielded the knife which caused that wound and BJ’s death.
Police and paramedics were called to the home of the accused and the deceased in Russell Street, Port Augusta, at about 9.16 pm on 7 March 2015. The knife which caused the wound was found in the kitchen sink. It was a kitchen knife about 250 millimetres in length and with a blade of approximately 120 millimetres. The deceased was found in the lounge room. A meat hammer was found under his body.
Subsequent blood analysis showed that at 1.45 am the next day the accused’s blood alcohol level was 0.104 per cent and contained traces of cannabis. An analysis of the deceased’s blood revealed an alcohol level of 0.16 per cent and traces of cannabis and naproxen (within the therapeutic range).
The prosecution proposes to call witnesses who were drinking with the accused and BJ in nearby Pilton Street. They were at the Pilton Street address for about two hours before they returned to their Russell Street home where the accused’s mother, Veronica Haines Senior (‘Mrs Haines’), was caring for their three children and another of her grandchildren.
Police took a witness statement from Mrs Haines between about 10.00 pm on 7 March and 2.30 am on 8 March. It is common ground between the prosecution and the accused, and I find on the medical evidence provided to me, that Mrs Haines is too ill to attend to give evidence. It is for that reason that the prosecution intends to tender her statements.
The statutory provisions
The prosecution intend to tender the statement given by Mrs Haines pursuant to s 34KA of the Evidence Act which relevantly provides:
34KA—Admissibility of evidence of out of court statements by unavailable witnesses
(1)Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a)     oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b)     the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and
(c)     any 1 of the conditions specified in subsection (2) is satisfied.
(2)The conditions are as follows:
(a)     that the relevant person is dead;
(b)     that the relevant person is unfit to be a witness because of a bodily or mental condition;
(c)     that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;
(d)     that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;
(e)     that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.
…
(4)Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to—
(a)     any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and
(b)     the statement's contents; and
(c)     any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross examine the person); and
(d)     any other measures that could be taken by the court in relation to the relevant person; and
(e)     any other relevant circumstances.
…
(8)In this section—
prescribed proceedings means—
(a)     proceedings for a criminal offence; or
…
The accused has made an application that I exclude that statement pursuant to s 34KD of the Evidence Act or the common law discretions which it preserves. Section 34KD of the Evidence Act provides:
34KD—Court's general discretion to exclude evidence
(1)In prescribed proceedings the court may refuse to admit a statement as evidence of a matter stated if—
(a) the statement was made otherwise than in oral evidence in the proceedings; and
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.
(2)Nothing in this section derogates from any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).
(3)In this section—
prescribed proceedings means—
(a)proceedings for a criminal offence; or
(b)proceedings under the Serious and Organised Crime (Control) Act 2008.
Mrs Haines’ statements
The statements taken by Mrs Haines are in the form of statements of witness prescribed by the Summary Procedure Act 1921 (SA). The first statement, sworn on 8 March 2015 (‘the witness statement’), is signed by Mrs Haines and witnessed by Senior Constable Jason Griffin to whom I will refer, because of a recent promotion, as Sergeant Griffin. Mrs Haines’ statement records that the accused and BJ arrived back from Pilton Street drunk and that they were both angry and abusing each other. According to Mrs Haines’ witness statement ‘[b]oth of them were being as bad as each other, they were both yelling and swearing using “dirty” words towards each other’. The accused told her mother that BJ had tried to rape her and that he had punched her. BJ angrily denied that claim. Mrs Haines described her daughter’s clothes as looking dirty as if she had fallen on the ground. She couldn’t work out what had happened and who to believe.
Her witness statement records that BJ then walked into the kitchen where her daughter ‘flew’ at him really fast. She punched him repeatedly before BJ pushed her off with a lot of force which moved her all the way back across the kitchen until she hit the sink. Mrs Haines’ witness statement continues:
She grabbed a sharp knife from on the sink as there were a lot of clean dishes that had been washed earlier. As she grabbed the knife she looked at BJ and said, "You wait you prick." I would describe the knife as silver in colour, and the whole knife was about fifteen (15) centimetres long, including the handle. The blade itself was only about ten (10) centimetres long. It was a blade that is fat, as in high, and it was the normal thickness that most knife blades are.
At this time BJ pulled a meat hammer out of his pants. He got it out of his pants on the right hand side from the front where his stomach is. About a week or so ago BJ got 'double-banked' (assaulted by numerous people) at the Russell Street house and I know he was carrying this meat hammer around for protection.
BJ was holding the hammer in his right hand and it was down by his side. Veronica Junior was still next to the sink and was holding the knife in her right hand like a dagger. Her hand was near her right shoulder and the knife blade was coming out of the bottom of her clenched hand.
While this was occurring I was still standing near the laundry door and Veronica Junior and BJ were only two (2) metres from me. The four (4) children in the house were all sitting at the kitchen table or standing by the doorway that I was standing near.
BJ said to her, "You're not going to do nothing, you're not going to do it, you're not going to do it." I think he was just trying to be a 'man' and save face in front of me and Veronica Junior. At this point in time BJ and Veronica Junior were roughly only about one (1) to one point five (1.5) metres away from each other. Without warning, other than what had been said, Veronica Junior took one step at BJ and stabbed him with the knife. I saw this and I think the four (4) children would have seen it as well.
A little later, after a description of the bleeding caused by the stabbing, Mrs Haines’ witness statement records:
When Veronica Junior stabbed BJ she wasn’t protecting herself. Although both of them were holding weapons BJ wasn’t threatening her with the hammer he was holding.
Mrs Haines’ witness statement describes her daughter going straight up to BJ immediately after she stabbed him and hugging him. She was saying ‘I’m sorry, I love you, I didn’t mean to do it, I love you, I love you.’ Together the accused and BJ walked to the lounge room where BJ collapsed.
The concluding paragraph of the witness statement records Mrs Haines telling Sergeant Griffin that ‘I am very tired and am sure there are things I have forgotten to mention’.
The circumstances in which the witness statement was taken by Sergeant Griffin, and his methodology, were subjected to close scrutiny in cross-examination. I will return to this topic below.
On 20 March 2015 Mrs Haines swore an affidavit which had been prepared over the proceeding weeks by a solicitor, Adrienne Lea, who was employed by the Aboriginal Legal Rights Movement (ALRM). In that affidavit Mrs Haines gives a different account of the events in the kitchen:
The grandchildren were near the laundry door in the kitchen, the little ones waiting for their bottles to be warmed up. They were in the kitchen the whole time but I don't know what the little children saw. I think [S] saw what I saw too but I am not sure.
Benjamin and Veronica were screaming at each other, swearing. Benjamin was using really filthy words. Veronica was saying "you tried to rape me." Benjamin was yelling "shut up, I'll hit you, you can't do anything, you haven't got it in you, you are a slut," things like that. The argument was getting worse and Benjamin came towards Veronica. She kept yelling, "You did do it, you tried to rape me." Veronica started to push Benjamin back, but then he pushed her back up hard against the sink. Veronica fell backwards a bit. We both stayed up against the sink and Benjamin went over to the fridge.
Benjamin got a meat tenderizer, I call it a meat cleaver thing, off the top of the fridge and put it in his right pocket. He came straight over to Veronica and me. He grabbed Veronica around the throat with one hand, his left hand, choking her tight so she couldn't move away. I saw him pull the meat cleaver out of his pocket and he kept holding Veronica by the throat and raised the meat cleaver up high to hit her. He kept yelling and kept his arm up ready to hit her.
Things were happening really fast but I remember I was thinking when he finishes bashing her with that thing he is going to bash me with it too.
Then Benjamin leant forward right up close to Veronicas left ear and said something quietly that I couldn't hear properly because he had gone real quiet but he looked like he was saying something really really nasty. He had a really nasty bad look.
Then Veronica reached back with her right hand and grabbed a knife that was on the sink. She made one stab at Benjamin with the knife and then threw it back behind her on the sink.
Benjamin said "you got me, you got me" and stumbled a bit. He let go of Veronica and he dropped the meat cleaver and I saw the blood and the stab wound in his chest. He grabbed at his chest with both hands. Then Veronica went towards him and hugged him and held him. I tried to help him to stagger to a chair but I couldn't get him to sit on a chair.
Ms Lea gave evidence before me on this application about the degree of care she took in taking Mrs Haines’ affidavit. She took particular care to slowly read out the entire affidavit to Mrs Haines ensuring that she had comprehended and understood what was read out to her before it was sworn. I accept Ms Lea’s evidence.
A further affidavit was taken from Mrs Haines on 2 March 2016 by another solicitor employed by ALRM. In that affidavit Mrs Haines took issue with the witness statements attributed to her by Sergeant Griffin. She swore:
I disagree with what was said in paragraph 1 of page 5. I did not say that "Veronica Junior flew at him really fast" at all. I said that Veronica was hitting him.
I saw Benjamin push Veronica up against the sink with his left hand holding her throat. At this time I was between Veronica and Benjamin. I did not see Veronica reach behind her as I was facing Benjamin and between them.
I did not tell the police that "she grabbed a sharp knife from the sink".
I told the police that Benjamin pulled a meat hammer out of his pants and that he came towards us both.
I saw Benjamin say something to her, 1couldn't hear what was said.
I saw Benjamin with the meat hammer in his hand at chest height.
I deny I said to the police that Veronica was "holding the knife in her right hand like a dagger". 1 did not say that at all.
Benjamin was coming towards Veronica with the meat hammer. He held her by the throat with his left hand. I didn't see Veronica grab the knife, I only saw the knife when she stabbed him. I did not say "I think he was just trying to be a man and save face in front of me and Veronica Junior".
In her affidavit of 2 March 2016 Mrs Haines also deposes that her interview finished at about 4.00 am and that she told the police that she needed reading glasses to read the statement. She deposes that the statement was read to her quickly and that she was very tired and just signed it when asked to.
The taking of the witness statement
I accept the evidence of Dr Brennan that when Mrs Haines gave her statement to Sergeant Griffin on 7 and 8 March 2015 she was suffering from several chronic illnesses. She had long standing diabetes, suppurative lung disease and heart disease. Several weeks after the interview, she suffered a heart attack. She also suffered from chronic pancreatitis, emphysema and kidney disease.
Even though only diagnosed subsequently it is likely that Mrs Haines had, by 7 March 2015, also contracted sacral osteomyelitis secondary to severe skin infections. Mrs Haines had also lost much weight, a condition described by Dr Brennan as cachexia.
However, I do not accept the evidence of Dr Brennan that Mrs Haines was hypoglycemic. That opinion of Dr Brennan was little more than speculation based on her known conditions and the description of very general symptoms given by Sergeant Griffin. Dr Brennan first saw Mrs Haines nine months after the interview.
The interview process took over four and half hours. In that time Sergeant Griffin never told Mrs Haines that she was free to go home if she was too tired or unwell to continue. He never offered to bring in a family member to keep her company. It was described by Sergeant Griffin himself as protracted in part because it was interrupted by frequent cigarette breaks. Sergeant Griffin also said that Mrs Haines was tired, distracted and that it was difficult to keep her focussed. Mrs Haines told him that she had been unwell.
Sergeant Griffin testified that during the course of taking the statement, Mrs Haines said on several occasions ‘I hope BJ’s okay’. Sergeant Griffin knew at that time that BJ had died but made a deliberate decision not to tell Mrs Haines. That decision was part of a strategy agreed upon with the officer in charge of the investigation, Detective Everlyn, that Mrs Haines would not be told of BJ’s death unless she specifically enquired. Detective Everlyn and Sergeant Griffin explained that they adopted the strategy because they feared that Mrs Haines might not fully cooperate with them if she were told that BJ had died. They also feared that her emotional reaction to BJ’s death might interfere with the accuracy of her statement. Sergeant Griffin testified that he did not consider Mrs Haines’ expressions of hope that BJ was ok, to be a direct enquiry.
Sergeant Griffin testified that during the interview he assumed that Mrs Haines knew that BJ was dead. I reject that evidence. I find that his state of mind was that he did not know whether or not Mrs Haines knew of BJ’s death but that he hoped that she might not yet know that he had died. It was in that hope that he and Detective Everlyn decided not to inform Mrs Haines of BJ’s death, or to confirm any suspicion to that effect which she may have had.
Sergeant Griffin testified that his statement taking methodology was to first ask Mrs Haines to relate to him what she had seen. He allowed her to give her account without interruptions so that he could gain an overall appreciation of her account. He then commenced typing the statement summarising what Mrs Haines had said from memory reading what he had typed to her, and interrogating as to further detail. From time to time he would read a completed paragraph and ask Mrs Haines if she was happy with it. Something of that methodology is apparent in the following passage:
Veronica Junior responded and said, “He punched me mum,” and when she said this he moved into the lounge room area out of your sight. Veronica had moved to the kitchen at this time and I looked at her closely.
(emphasis added)
Sergeant Griffin testified that he had mistyped the word ‘your’ instead of ‘my’, because he had simply typed the words of his summary he was reading, or had read out, to Mrs Haines.
The methodology is also manifest in the use of words in the witness statement which are more likely to have been words selected by Sergeant Griffin than actually used by Mrs Haines.

The extent to which Sergeant Griffin put Mrs Haines’ account, in his words and not hers, is evident from the following description of the layout of the Russell Street house in Mrs Haines’ witness statement:
1 Russell Avenue is a three bedroom house. As you look at the house from the street the front door is roughly in the middle of the house. As you walk into the front door you walk directly into the lounge room in the left side of it. You walk along the left side of this lounge room and turn left into the central corridor of the house which runs side to side. As you walk down this corridor there is a bedroom to your left which shares the wall to the lounge room, and then the next door to your left is the second bedroom.
At the end of this corridor there is a third door for the last bedroom, and this bedroom is on the back half of the house. Almost directly opposite the first bedroom on the left, is a door to the bathroom and if you do a turn back around on yourself there is the doorway to the kitchen. When you walk into the kitchen the sink is on the far wall (so the right hand wall of the house as you look from the street) and half way along at the rear of the kitchen there is another doorway to the rear of the house. When you walk through this doorway there is a small laundry section and when you turn to your left there is a door to go into the rear yard.
After taking that statement when Sergeant Griffin came to describe the layout of the Russell Street house in his own statement of witness, he copied and pasted those same passages.
It is apparent from Sergeant Griffin’s testimony that the witness statement is not a faithful record of words actually used by Mrs Haines, but is a summary, in Sergeant Griffin’s terms, of his understanding of the events she was describing.
Sergeant Griffin testified that when he was walking Mrs Haines out of the interview room, he told her that BJ had died and that Mrs Haines then said that her daughter had acted in self-defence. Sergeant Griffin did not record that detail in the witness statement he typed soon thereafter. He testified that he did not do so because he did not consider that statement to be ‘relevant’.
Jacinta Haines is the sister of the accused. She gave evidence that she was in the waiting room of the Port Augusta Police Station with her father Graham Haines from shortly after 10.00 pm. Her father was later taken into the interview room in which the accused was being kept. Jacinta Haines testified to hearing her mother call out for her husband Graham many times. I accept Jacinta Haines to that effect. She impressed me as a witness of truth and I think it is inherently probable that Mrs Haines would have called out for her husband. Sergeant Griffin may not have been present when she did, or if he was, may have thought it of no consequence and forgotten it.
Jacinta Haines also testified that she asked police officers to see her mother but was told that she could not do so until the interview process was completed. I accept that evidence. The detail of her testimony had the ring of truth.
Jacinta Haines also testified that it was as late as 3.30 am to 4.00 am the next morning that the police officers brought Mrs Haines to the foyer of the police station. Jacinta Haines described two police officers supporting Mrs Haines on either side and that she did not appear to be able to support her own weight. She testified that she and Graham Haines carried her to the car. I accept that evidence of Jacinta Haines.
It is consistent with the evidence of Mrs Haines’ medical conditions and the fact that she must have been very tired. It is also consistent as to the timing with the evidence of Ms Lea who saw Jacinta Haines at the police station when she left at about 3.30 am. Sergeant Griffin must be mistaken when he testified that Mrs Haines was escorted from the interview room by no later than about 3.00 am and probably earlier. No explanation appears from the evidence for Mrs Haines being kept in the police station for so long after her statement was taken. The length of time is not consistent with the care and respect any witness, particularly one in Mrs Haines’ circumstances should be shown by police.
On this application it is not my role to pass a judgment, either from a moral perspective or from a policing perspective on the decision by Detectives Griffin and Everlyn to adopt the strategy of not informing her of BJ’s death. Nor is it my role to comment on the appropriateness of the decision to keep Mrs Haines in isolation in the interview room for as long as she was. However, the following findings are relevant to the assessment of the reliability of the Mrs Haines’ witness statement for the purpose of the application now made by the accused:
·Mrs Haines was distracted by her concern for BJ’s health during the course of the interview.
·Mrs Haines was unwell at the commencement of the interview and extremely tired by the end of it both because of the lateness of the hour and her medical conditions.
·Mrs Haines found the isolation from her family in a police station over a long period of time stressful.
·Mrs Haines is likely to have been very concerned about the arrangements which had been made for the care of her grandchildren.
Analysis
Section 34KA of the Evidence Act renders admissible the statements of persons who are, relevantly to this application, too ill to attend to give evidence in court. The statement is admissible, without more, if the two pre‑conditions, first that the witness could have testified as to the contents of the statement and secondly that one of the prescribed reasons, other than fear, for the inability to give evidence, are made out. If the witness is unable to testify because of fear, the Judge must also exercise the discretion conferred by s 34KA(4) of the Evidence Act in favour of admission of the statement. I need not stay to further consider that particular case.
However, even though the statements are admissible on satisfaction of the pre-conditions, s 34KD confers on the Court a statutory discretion to exclude the proferred statements and also preserves the common law discretions to exclude evidence of any kind.
My initial view was that the statutory discretion conferred by s 34KD is a wide one which encompasses considerations relevant to the common law discretions. However, s 34KD of the Evidence Act mirrors clause 15 of the Criminal Evidence Bill recommended by the English Law Commission Report “Evidence in Criminal Proceedings: Hearsay and Related Topics”. It is apparent from that report that the statutory discretion is designed to prevent the waste of time which was feared might result from the tender of a multitude of written statements of little value. The particular considerations mentioned by s 34KD, waste of time and the value of the evidence, are specific to the admission of statements pursuant to s 34K and s 34KA. However, s 34KD of the Evidence Act preserves the general unfairness discretion[1] and the Christie[2] discretion (prejudicial value exceeds probative value), which are also important.    It is the former which is determinate on this application.
[1]    See R v Lobban (2001) 80 SASR 550.
[2]    R v Christie [1914] AC 545.
Plainly enough, the rendering of admissible statements which at common law are inadmissible as rank hearsay, is a fundamental departure from the common law of evidence. It is also a fundamental departure from the common law principle that an accused should be able to test by cross-examination the evidence of witnesses against him or her in open court. The abrogation of those important common law protections by s 34KA of the Evidence Act is not unqualified but is subject to the discretions conferred and preserved by s 34KD of the Evidence Act. The forensic unfairness resulting from the loss of those protections in all of the circumstances of the particular case must be evaluated. The considerations relevant to that exercise include:
·The value of the evidence.
·The significance of the statement to the prosecution case overall.
·Whether the statement is supported in material respects by other prosecution evidence.
·Whether the statement constitutes a major part of the prosecution case.
·The reliability of the evidence that the statement was made.
·The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken.
·The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement.
·Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify.
The loss of the procedural right to cross-examine a prosecution witness in open court places an accused in a position of significant forensic disadvantage. It must be accorded substantial weight in the application of the general unfairness discretion. The more complex the subject matter of the statement, and controversial the circumstances in which it was taken, the greater will be that unfairness.
There are strong reasons to admit the evidence in this case. It is a statement of a witness who directly observed the killing of BJ. The statement provides reasonably strong evidence of the commission of the offence of murder even though on its own terms it does not necessarily exclude self-defence.
On the other hand, the following considerations tell against its admission. It was a statement obtained by the police in accordance with a strategy calculated to optimise the prospects that the statement would incriminate the accused. Moreover, Mrs Haines’ family were excluded from the interview room, and there was no independent observer, or record, of the taking of the statement. I do not mean to suggest, and I certainly make no finding, that overwhelming pressure was brought on Mrs Haines to incriminate her daughter. However, care should be taken before admitting a statement, the taking of which has not been electronically recorded or observed by someone independent of police. The taking of the statement for policing purposes is one thing. It is quite another thing to admit into evidence, in place of the sworn testimony of a witness, a hearsay statement when it has been taken in circumstances of police control of the kind which I have described.
Secondly, the time over which the statement was taken, together with Mrs Haines’ health, gives some reason to doubt its comprehensiveness and reliability. So too does Mrs Haines distraction by her concern for BJ and the detention of her daughter. The statement itself records that Mrs Haines was tired and may have forgotten events.
Thirdly, Sergeant Griffin’s statement taking methodology did not result in a close record of Mrs Haines’ own words. Sergeant Griffin’s decision to make no immediate record of Mrs Haines’ exculpatory statements that her daughter acted in self-defence is a further reason to have reservations about the reliability of the witness statement.
Sergeant Griffin could not remember whether at the conclusion of the interview he read the statement to Mrs Haines or allowed her to read it. There is in those circumstances little evidence as to the degree of care taken in ensuring the statement reflected her account before Mrs Haines signed it. Asking Mrs Haines for running commentary paragraph by paragraph may have elicited general agreement for no other reason than a desire to complete the process. If Sergeant Griffin had left the statement to Mrs Haines to read she may not have read it carefully. If he read it out to her there is no indication that her attention remained sufficiently on what he read out to make additions or corrections.
There is no evidence that the standard warning at the commencement of the witness statement that it is an offence to give a false statement was brought to Mrs Haines’ attention.
The contrary affidavits sworn by Mrs Haines in effect amount to a retraction of those parts of the statement that suggest that the accused was not acting in self-defence. If Mrs Haines had been well enough to give evidence it is unlikely, having regard to her subsequently sworn affidavits, that she would give evidence to the same effect as the witness statement. If she were called to give evidence it is more likely that she would give evidence in accordance with the later affidavits. The use of the witness statements therefore puts the accused in a significant forensic disadvantage relevant to the position she would have faced at trial if Mrs Haines had been well enough to give evidence.
Moreover the admission of the witness statement taken by Sergeant Griffin and the affidavits would make the forensic contest at trial a contest as to whether, in effect, Mrs Haines’ statement made on the night of the incident was more likely to be reliable and truthful than the subsequent affidavits taken by her daughter’s lawyers. Competing arguments would be put to the jury at trial on that question. On the part of the prosecution it would be argued that later concern by Mrs Haines for her daughter led her to regret making what was a truthful witness statement to Sergeant Griffin and caused her to make falsely exculpatory statements to the accused’s lawyers after the event.
On the part of the defence it will be put that Mrs Haines’ statement was paraphrased in an incriminatory way by Sergeant Griffin, whether consciously or unconsciously, and that Mrs Haines was not in a position, because she was unwell, upset and tired, to ensure that the exculpatory aspects of her statement were taken down fully and correctly. Those arguments would, by hypothesis, take place in the absence of testimony from Mrs Haines herself who is the only witness who could speak directly to those questions. If Mrs Haines were called as a witness and the differing accounts in her statements put to her, the jury could make an assessment based on both the content of her answers and her demeanour as to what to accept or not to accept. But she will not be called.
The prosecution of the accused for murder would for all practical purposes take place ‘on the papers’. The forensic unfairness of a trial in that form for this offence and in the circumstances of this case is too great to countenance.
For those reasons, I exclude the statement of witness taken on 7 and 8 March 2015 by Sergeant Griffin of Mrs Haines.
If the defence were to tender the affidavits of Mrs Haines taken on 20 March 2015 and 2 March 2016, I would allow the prosecution to lead the statement of witness taken by Sergeant Griffin.