R v KJ and R v Jayden Hunter

[2009] NSWDC 237

Reported Decision: 9 DCLR (NSW) 374

District Court

CITATION:	R v KJ & R v Jayden HUNTER [2009] NSWDC 237
HEARING DATE(S):	10 September 2009
EX TEMPORE JUDGMENT DATE:	10 September 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The Crown application to play part of the Electronically Recorded Interview with the unfavourable witness is refused.
CATCHWORDS:	Criminal Law - Judgment on voir dire - Unfavourable witness - Tender of Electronically Recorded Interview - Hearsay - Second hand hearsay - Admission
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Adam v The Queen (2001) 207 CLR 96 Lee v The Queen (1998) 195 CLR 594 R v Suteski [2002] NSWCCA 509 Tan v R [2008] NSWCCA 332
PARTIES:	The Crown KJ Jayden Hunter
FILE NUMBER(S):	DC 08/11/1081; DC 08/11/1082
COUNSEL:	G O'Rourke - Crown A Evers - KJ J Stratton SC - Jayden Hunter
SOLICITORS:	NSW DPP JPM Legal - KJ ALS - Jayden Hunter

JUDGMENT

1 HIS HONOUR: This morning evidence was called from Mr Kennedy. He had previously been interviewed by police. A video recording of that interview is available. I have read the transcripts of what he said. There is material in the interview which the Crown seeks to rely on. There was also material which I expect that the accused will seek to rely on.

2 This judgment concerns the admissibility of that part of the recorded interview which concerns admissions made by KJ to Mr Kennedy. Mr Kennedy professed to have no memory of many things in the witness box when he was called on the voir dire this morning. In particular he could not recall someone called BR; did not know a person by the name of KJ or KB, one of the accused, and could not recall being to premises where it is common ground that relevant events occurred.

3 In the interview with the police, he said something quite different. Whether or not he was making a genuine attempt to give evidence, it is clear that Mr Kennedy has made a prior inconsistent statement and thus he can be cross-examined under s 38 of the Evidence Act. I did not understand counsel for either accused to challenge what I have thus far said.

4 The question then becomes what happens to the recorded interview that Mr Kennedy made with the police. The Crown wishes to tender that interview in accordance with the Court of Criminal appeal decision in Adam v The Queen (2001) 207 CLR 96. Mr Stratton SC and Mr Evers accept that the Crown is entitled to put before the jury some parts of that interview but submit that what is not admissible by the means I have just described is the playing to the jury of statements made by Mr Kennedy to police that the effect that KJ had made admissions to him.

5 This judgment as I have said is limited to the admissibility of that evidence. That is, is the Crown entitled to play to the jury that part of the ERISP where Mr Kennedy says to police that KJ made admissions to him? This issue is not without difficulty. It is, for me at least, a difficult area of the law. The jury has been in the jury room for the entirety of the morning. It is important therefore that I give judgment in the matter sooner rather than later.

6 The starting point perhaps for an analysis of the legal issue that presents itself is the decision of the High Court in Lee v The Queen (1998) 195 CLR 594. There the High Court held that the Crown was not entitled to put before the jury a statement made to a police officer in which the person making the statement had told police that the accused Lee had admitted to him that he had just committed a robbery. At first blush one might have thought that would cover the present situation but the Crown seeks to distinguish Lee on this basis: the Crown says that it is an important distinction that what Mr Kennedy said to police was recorded electronically rather than being simply typed out in a statement which Mr Kennedy signed.

7 The Crown relies on two decisions, in particular, of the Court of Criminal Appeal, one of R v Suteski [2002] NSWCCA 509 and one of Tan v R [2008] NSWCCA 332 In both cases, the Court of Criminal Appeal distinguished Lee and held that the Crown was entitled to play to the jury as evidence a video recording made when a witness repeated what the accused had told him. The Crown says that the point of distinction between Lee and the two Court of Criminal Appeal cases is that what the witness in Lee said was recorded only by way of written statement but in the latter two cases it was recorded electronically so that the jury could hear the witness’s very words as he told police what he had been told.

8 Mr Stratton and Mr Evers on the other hand say that that is not the relevant point of distinction at all. They say that the relevant point of distinction is that in R v Suteski and in R v Tan the original utterances were not relied on to establish the truth of what was said. They say that in this case the Crown seeks to rely on statements made by KJ to establish the truth of what is said and thus those statements were hearsay when they were said to Mr Kennedy and become second hand hearsay when he repeats them to the police.

9 The resolution of the issue is not without difficulty. It is required close examination of the two Court of Criminal Appeal decisions in particular.

10 It is to be noted that even if the Crown is right and there is a relevant point of distinction between Lee and the Court of Criminal Appeal cases concerning the means by which the witness’s utterances to the police are recorded, that does not necessarily mean that the point of distinction relied on by Mr Stratton and by Mr Evers is not also present.

11 The Crown has taken me to various passages of two decisions in which the Court of Criminal Appeal refers to the difference between a statement and an ERISP. The Crown relies on passages where the Court of Criminal Appeal points out that it is one matter to have a police officer repeat in the witness box what a witness has said to him or her but it is a completely different matter, as far as the law of evidence is concerned, for a video recording of the witness’s words to be played to the jury.

12 There is, as far as the laws of evidence are concerned, a difference between a statement made to the police, even one signed by the witness, and a video recording of that witness’s words, and the difference is made apparent where, as here, the witness denies or fails to recall, what the witness earlier said. In the case of a statement, proof that it was made would require the calling of the person to whom the utterances were made to say that the witness had said certain things to him or her, which were then recorded in written form. That of course could amount to second-hand hearsay. But as the Crown points out, that problem is eliminated where the video recording itself is played. There needs in that case to be no, if I can call it, retransmission of the utterances through the intervening police officer. So I accept that, as the Crown points out, there is a valid point of distinction between Lee on the one hand and Tan and Suteski on the other.

13 But as I said above that is not the end of the matter. The question remains whether doing what the Crown proposes to do is prohibited because it would involve second-hand hearsay being put to the jury. I should interpose here to say that is common ground that the amendments made to s 60 of the Evidence Act amendments made in response to the decision of Lee v The Queen do not impact upon that decision as far as insofar as the present case is concerned.

14 In Lee v The Queen it is clear that the Crown was relying on the statements made by the witness in order to prove their truth. Of course the witness said other things apart from the fact that Lee had made admissions to him, but the Crown was in particular relying on the words spoken by Lee to the effect that he had committed a robbery, that is an admission, which has always been accepted as being hearsay, albeit admitted as an exception to the hearsay rule because it is an admission against the person’s interest.

15 In Tan and Suteski, the utterances made by the relevant accused were relied on not to prove the truth of what was asserted but to merely prove that they were said, that is for a non-hearsay purpose. This distinction also appears to have been important to the Court of Criminal Appeal. In Suteski at para 104 Wood CJ at CL said:

“His Honour accepted however that where Sakisi had repeated to the police assertions of fact by someone else, and where the only relevance of that evidence was the facts asserted, it would have been second-hand hearsay. Similarly repetition by a police officer of Sakisi’s account would have been second-hand hearsay.”

(I quoted the entire passage for completeness but it is the first sentence which is of most importance.)

16 The trial judge in Suteski accepted something which the Court of Criminal Appeal also appears to have accepted, namely that where assertions of fact are made by a witness and where the only relevance of that evidence was the facts asserted, this would have been second-hand hearsay. This suggests that had the position in Suteski been that the only relevance of what the accused said was that it amounted to an admission, it would have been accepted by the trial judge and the Court of Criminal Appeal that that was second-hand hearsay.

17 Similarly in Tan Tobias J says at 101:

“The answers to the questions of which complaint is made did not amount to confessional material of the nature of that which was rejected in Lee.”

18 The material before me is confessional material of the nature of that which was rejected in Lee.

19 I am therefore satisfied that the Crown is not entitled to play that part of the ERISP to the jury where it contains admissions by KJ. To do so would put before the jury second-hand hearsay, a matter that was adverted to by the Court of Criminal Appeal in those two passages that I have just quoted.

20 Although the Crown is right in saying that a relevant point of distinction between Lee on the one hand and Tan and Suteski on the other is that the witness’s utterances to the police were recorded by way of electronic video recording, Mr Stratton and Mr Evers are also right in that the playing to the jury of what Mr Kennedy said that KJ had told him would involve second-hand hearsay.

21 Accordingly the Crown application to play that part of the video recording to the police is refused.

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