R v Jones & Ors (No5)

[2007] NSWSC 1155

CITATION:	R v Jones & Ors (No5) [2007] NSWSC 1155
JUDGMENT DATE :	10 April 2007
JUDGMENT OF:	Buddin J
DECISION:	Objection upheld.
CATCHWORDS:	Objection to tender of statement of Crown witness
PARTIES:	Regina Adam Jones Samuel Jones Elizabeth Jean Jones Lydia Jones Adam Samuel Jones
FILE NUMBER(S):	SC 2006/2009; 2006/2010; 2006/2011; 2006/2012; 2006/2007
COUNSEL:	J Pickering (Crown) D Price (Adam Jones) (Accused) D Stewart (Samuel Jones) (Accused) G Whitehead (Elizabeth Jones) (Accused) C Watson (Lydia Jones) (Accused) W Terracini SC/J Trevallion (Adam Samuel Jones) (Accused)
SOLICITORS:	S Kavanagh (Solicitor for Director of Public Prosecutions) Conaghan Hunter P/L (Adam Jones) Ross Hill & Co (Samuel Jones) Neil J O'Connor & Associates (Elizabeth Jones) Ian Rolfe Solicitor (Lydia Jones) Adamson Solicitors (Adam Samuel Jones)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

TUESDAY 10 APRIL 2007

2006/2009 - Regina v Adam JONES
2006/2010 - Regina v Samuel JONES
2006/2011 - Regina v Elizabeth Jean JONES
2006/2012 - Regina v Lydia JONES
2006/2007 - Regina v Adam Samuel JONES

JUDGMENT – (No 5) Objection to tender of Statement of Mary Rose Smith

1 HIS HONOUR: The Crown seeks to tender in re-examination the statement of Mary Rose Smith made on 9 October 2005. That course is objected to by counsel on behalf of each of the accused.

2 Adam Jones Snr, Adam Jones Jnr, Samuel Jones Snr and Elizabeth Jones are each alleged to have murdered William Smith and to have seriously injured his brother, Noah Smith Snr. Lydia Jones is alleged to be an accessory after the fact to those offences.

3 Ms Smith has given evidence that she witnessed an attack upon the deceased, who is her uncle, by each of the four accused who are charged with his murder. I have been informed that as many as a dozen members of the Smith family claim to have witnessed the fatal incident.

4 Ms Smith maintains that each of the four accused was armed with a weapon at the time. She denied however that any member of her family was armed at the time. This latter aspect of her evidence was subject to vigorous challenge by all counsel.

5 The nature and extent of the challenge to the rest of her evidence however differed. Adam Jones Snr and Adam Jones Jnr have each pleaded guilty to manslaughter. By their pleas they have admitted not only being present at the time of the fatal incident but have also acknowledged participating in it. Sam Jones Snr and his wife Elizabeth Jones have each pleaded not guilty to the charges brought against them and, as I understand the situation, deny any responsibility for the fatal incident.

6 The Crown submits that the thrust of the cross-examination of Ms Smith was designed to suggest that she had the opportunity to discuss the incident with other members of her family (who are also witnesses) before the police took a statement from her, or indeed, from those other family members. The Crown further submitted that it had then been suggested to Ms Smith that she had colluded with other family members in order to produce a version of events which was false in material respects. That suggestion includes, but is certainly not limited to, her evidence that no member of her family was involved in any wrongdoing on that night.

7 I am prepared to assume, for the sake of the present argument, that the tenor and purpose of the cross-examination was as the Crown described it. It can also be anticipated that the witness’ evidence will be attacked by counsel in final address as being the product of both contamination and collusion. No doubt her evidence will also be criticised as having been motivated by a desire on the part of the witness to remain loyal to her family, rather than to tell the truth. The circumstances in which she came to make her statement will accordingly assume some significance as an issue in the trial.

8 The Crown readily concedes that, subject to certain exceptions, it is unusual for a statement of a Crown witness to be tendered. Nevertheless the Crown submits that the statement is admissible pursuant to s 55 of the Evidence Act. In written submissions, the Crown advanced the following arguments to support the tender of the statement.

The Crown submits that it is going to create a completely unrealistic scenario for the jury when it comes to submissions on behalf of each of the accused at the end of the trial when they make a central part of their addresses about the false statement of Mary Rose Smith, and how it is the result of contamination, family pressures, and being compelled to lie for her family in circumstances, where the tribunal of fact will not even be allowed to see the document that has supposedly been created by that collusion.
To put this argument in a more practical way, the Crown submits that the tribunal of fact is entitled to make an analysis of the detail of the statement made by Mary Rose Smith on 9.10.2005 at around 7 am, in determining whether it was even possible or practical for a 16 year old girl to have taken instructions in the few hours she had between about 1.30 am and 3.30 am (when her parents were still at the BBQ area) and to gather instructions under stress and then recount it in detail to police (in her first ever statement) a few hours later. A jury would be able to examine in detail the 5 pages of the statement and determine the likelihood of this conspiracy theory.
In the absence of the statement the jury will have NO IDEA of the detail of that statement, or the complexities involved in making up a statement like that in a few hours. Instead the jury will be completely in the dark about the statement of Mary Rose Smith whilst counsel for each of the accused launches into significant attacks on how the statement of Mary Rose Smith is simply “the Smith concocted family versions”.

9 As I understand the situation, and bearing in mind the cases which will be advanced on behalf of the respective accused, it will not be suggested that the entirety of Ms Smith’s evidence has been fabricated. It might also be noted that not insubstantial parts of the statement have already been introduced into evidence during the course of cross-examination.

10 The critical question to be determined is the extent of any opportunity which the witness may have had in which to engage in any form of collusion before making her statement. I am unable to see how a suggestion that a witness has colluded with other people about an incident is necessarily overcome just because the witness provides a detailed account of that incident in the form of a statement. Taken to its logical conclusion, the Crown’s submission would mean that the issue of whether there had been collusion between the various members of Ms Smith’s family could only be properly resolved by the tribunal of fact examining all of the statements provided by them to police. That course of action could scarcely be countenanced.

11 It is to be observed that there is already evidence before the jury upon this very issue. In addition to denying that there was any collusion, the witness gave evidence that she was unaware, at the time when she was speaking to members of her family, that she was going to have to provide a statement to police. She also said that although there was some discussion between them “we didn’t actually sit down and talk about it” because everyone was screaming and hysterical in the aftermath of her uncle’s death. She agreed that her family was very close and would “stick together” but denied that they “would stick together no matter what”.

12 Moreover I anticipate that the Crown will, in any event, be in a position to point to inconsistencies in the accounts given by the various witnesses to support a submission that there has been no collusion of the kind alleged on behalf of the accused. Nor would there seem to be any impediment to further evidence being led in the conventional fashion in relation to that issue if such a course was thought to be necessary.

13 Before leaving this aspect of the matter, I should indicate that the Crown informed me that he had been unable to locate any authorities which would lend support to his argument that the statement which is, after all a hearsay document, is admissible pursuant to s 55 of the Act. That may suggest that the argument which he advances is, at least, somewhat novel.

14 The issue concerning the statement of Ms Smith also brings into sharp focus some unusual problems which arise from her evidence. Ms Smith told the Court that she has never been to school. She also gave evidence that she is unable to read although she did say that her statement had been read to her before she signed it. Secondly, she said that she was unfamiliar with basic concepts such as height, time and distance and accordingly could not give specific evidence as to how those things might be measured. Nor, she said, was she able to tell her right side from her left. Her statement is nevertheless replete with references to such matters. Furthermore, the terminology and modes of expression used in the statement seem to be considerably at odds with the way in which the witness expressed herself whilst giving evidence. In the circumstances it is difficult to avoid the conclusion that her statement is the product of not only her recollections of the events of the evening but also the police officer’s interpretations of what was said by her to him at the time.

15 There is a further complication. During the course of cross-examination Ms Smith was taxed as to inconsistencies between the evidence which she gave and the contents of her statement. In responding to those challenges she maintained that some of the matters which appear in the statement, are not things that she told police. Conversely there are a number of other matters which do not appear in the statement, but which Ms Smith maintains ought to have been there. As to those matters she says that she thought that she had informed police about them.

16 In any event, the consequence of her evidence is to give rise to a substantial issue as to whether the contents of the statement do in fact accurately reflect what the witness told police. In short, there is considerable doubt that the witness has acknowledged, in sufficiently clear terms, that she has truly adopted the contents of her statement as her own.

17 In all the circumstances it is strongly arguable that the statement lacks any probative value at all and that accordingly it could not be relevant within the meaning of s 55 of the Act. That being so, I reject the submissions advanced by the Crown in respect of s 55.

18 The Crown also submits that the statement is admissible pursuant to s 108(3) of the Evidence Act which is in the following terms:

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a) evidence of a prior inconsistent statement of the witness has been admitted; or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion;
and the court gives leave to adduce the evidence of the prior consistent statement.

19 Particular reliance is placed upon s 108(3)(b).

20 The Crown submits that the tendering of the statement will help to re-establish Ms Smith’s credibility following the attack upon her in cross-examination. It was submitted that the thrust of the cross-examination was designed to establish that her evidence was, to use the language of the statute, “the result of a suggestion”.

21 It is common ground that the Crown requires leave before it can adduce the evidence in question. In considering that question I must have regard to the matters identified in s 192 of the Act. I must also have regard to ss 135 and 137 of the Act.

22 Even if, contrary to the view which I have expressed when discussing s 55 of the Act, the statement does have probative value, I would nonetheless conclude that its probative value “is outweighed by the danger of unfair prejudice to the accused”. In those circumstances, I am required, pursuant to s 137 of the Act, to exclude the evidence. The risk, which I am prepared to accept is a very real one, is that the written statement would be treated by the jury as a substitute for the witness’ oral evidence, and any shortcomings in her evidence would be simply swept away.

23 Other problems also exist. I have earlier referred to Ms Smith’s evidence concerning her belief as to what was, or perhaps what should have appeared, in her statement. It is not immediately clear how that issue might be resolved but there remains the possibility that, were the statement to be admitted, considerable time and effort would have to be devoted to attempting to clarify the situation. Sections 135 and 192 in particular are directed to that issue and I have had particular regard in determining this issue to the various matters referred to in those sections. Furthermore, for reasons which I have identified, there is a real risk that “the probative value of [what is contained in her statement] is substantially outweighed by the danger that [it] …might be misleading or confusing” within the meaning of s 135 of the Act.

24 Given the concerns that I have identified about Ms Smith’s statement, it appears to me that it cannot be properly used as a basis for restoring the witness’ credibility.

25 In short, even if the terms of s 108(3) were otherwise satisfied, there are as I have indicated, various reasons why in my view it would not be appropriate to grant leave to the Crown to “adduce the evidence of the prior consistent statement”.

26 Accordingly, leave is refused.

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