R v Henderson

[2020] ACTSC 146

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Henderson

Citation:

[2020] ACTSC 146

Hearing Dates:

2 – 5 June 2020

DecisionDate:

3 June 2020

Reasons Date:

4 June 2020

Before:

Elkaim J

Decision:

The evidence of the telephone conversation between Ryan Henderson and Michelle Crampton is excluded.

Catchwords:

CRIMINAL LAW – EVIDENCE – Hearsay Rule – Maker unavailable exception – witness not compellable due to domestic partner objection – no notice given to defence – probative value outweighed by prejudice to accused

Legislation Cited:

Evidence Act 2011 (ACT) ss 18, 65, 67, 135, 137

Cases Cited:

Mindshare Communications Ltd v Orleans Investment Pty Ltd [2007] NSWSC 976

Parties:

The Queen (Crown)

Grant Mathew Henderson (Accused)

Representation:

Counsel

S McFarland (Crown)

C Watson (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Accused)

File Number:

SCC 221 of 2019; SCC 222 of 2019

Publication Restrictions:

Not to be published until the conclusion of the trial

ELKAIM J:

1. These are my reasons for refusing, yesterday, the Crown leave to adduce evidence of an intercepted telephone conversation between Mr Ryan Henderson and Ms Michelle Crampton.

1. During the evidence in chief of Detective Senior Constable Saunders he was asked about a conversation he had with the accused’s partner, Ms Crampton. He said:

I can tell you that Grant is with us at the moment. He has been arrested for trafficking in cocaine. He is with investigators at the watchhouse in the city.

1. Because the accused had objected to this evidence I heard it on a voir dire. The Crown said that its relevance would become apparent during the evidence of Constable Wilson‑Smith.

1. Prior to Constable Wilson-Smith giving evidence, the accused indicated that objection would be taken to certain evidence the Crown proposed to call from her. This evidence related to an intercepted phone call between Mr Ryan Henderson, the accused’s brother, and Ms Crampton. According to the intercept Mr Henderson asked Ms Crampton “What did they find?”, to which she replied “Half”.

1. The Crown said the evidence was relevant because the reference to “Half” could be inferred as meaning the almost half kilogram of cocaine that was found in the vehicle being driven by the accused.

1. Although conceding the statement by Ms Crampton was hearsay, the Crown said that it fell within the exception provided by s 65 of the Evidence Act 2011 (ACT).

1. The accused responded with these points:

(a)Ms Crampton was not unavailable so that s 65 did not apply;

(b)If the section did apply, no notice had been given as required by s 67; and

(c)In any event the evidence should be excluded under ss 135 and 137 as being unfairly prejudicial to the accused. Part of this submission included the absence of any questions being asked of Mr Ryan Henderson about this conversation when he gave his oral evidence.

1. In relation to unavailability, the Crown submitted that the result of my permitting Ms Crampton to rely on s 18 of the above Act, rendered her unavailable. Ms Crampton had objected to giving evidence under s 18 on the basis that her evidence would harm her relationship with the accused. She is his current partner and the mother of their two children.

1. In my view, once her objection was upheld, she became unavailable within the meaning of s 65. I agree with this summary by Hamilton J in Mindshare Communications Ltd v Orleans Investment Pty Ltd [2007] NSWSC 976 that subparagraph (g) of the definition of “Unavailability” of persons in the Evidence Act:

… is to deal with the situation where the attendance of the witness has been secured, but it is impossible to obtain the evidence, because, for instance, the witness declines to give it on the ground of privilege or simply refuses to give it, whatever threats are made concerning the consequences arising out of a contempt of court.

1. The Crown had secured the attendance of the witness and she had declined to give the evidence, relying upon s 18. Having done so she then became unavailable.

1. In relation to notice, the Crown said that the requirement to give notice did not arise until the witness had become unavailable. Because that only occurred yesterday the Crown could not be criticised for not having given notice and leave should be given to not require the giving of notice.

1. I disagree with the Crown’s submission on notice. The Crown informed me at the commencement of the trial that Ms Crampton had not provided a statement and had not been cooperative. The Crown was aware of her status as the partner of the accused. It could reasonably have been contemplated by the Crown that Ms Crampton would object to giving evidence under s 18. That would have alerted the Crown to the necessity to inform the accused that it intended to rely upon the intercepted conversation.

1. The accused conceded that he had been served with the intercepted conversation. Nevertheless, I am of the view that notice should have been given, if not formally, then at least by indicating that if objection was taken by Ms Crampton to giving evidence, the conversation would be relied upon.

1. I am also influenced in my decision by the lack of any questions of Mr Henderson during his evidence about the conversation.

1. There is another aspect which is relevant. The Crown told me that the accused had not spoken to his partner between arriving home and being arrested and taken to the

   
   

   ACT Watch House. This meant, as conceded by the Crown, that the information about the “Half” could not have been communicated by the accused to Ms Crampton after he arrived home. The Crown said that there was no reason why he could not have told Ms Crampton about the cocaine prior to him arriving home. This is of course a possibility, but it does not sit with the question asked by Mr Henderson, namely “What did they find?”.

1. Accordingly, I refused leave for the Crown to rely on the conversation. This refusal includes my refusal to exempt the Crown from giving notice of its intention to rely on the evidence, and also my view that, in any event, the evidence would have been unfairly prejudicial to the accused. I would also add that I think its probative value is far outweighed by its prejudice to the accused.

1. The order of the Court is that the evidence of the telephone conversation between Ryan Henderson and Michelle Crampton is excluded.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 4 June 2020