R v Rees

[2000] NSWSC 643

CITATION:	R v Rees [2000] NSWSC 643
FILE NUMBER(S):	SC 70106/97
HEARING DATE(S):
JUDGMENT DATE:	19 June 2000
PARTIES :	Crown Jason Lee Rees
JUDGMENT OF:	Bell J at 1

COUNSEL :	L K Wells - Crown J G Spencer - Accused
SOLICITORS:	S E O'Connor - Crown Jeffreys & Associates - Accused
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Adam (1999) 47 NSWLR 267 R v GAC (unreported NSWCCA 1 April 1997) R v Lockyer (1996) 89 A Crim R 457 R v Souleyman (1996) 40 NSWLR 712 Graham v The Queen [1988] HCA 61; 195 CLR 606 @ 608
DECISION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

Monday, 19 June, 2000

70106/97 - REGINA v Jason Lee REES

JUDGMENT

1    HER HONOUR: Mr Spencer objected to the admission of evidence from the witness Mark Chipperfield. On 6 June 2000 I heard evidence on the voir dire from this witness. On 7 June 2000 I ruled that I proposed to allow the evidence of the witness. He was called in the presence of the jury on 8 June 2000 and during the course of examination in chief the Crown sought leave to cross examine him pursuant to s 38(1) of the Evidence Act 1995 (the Act). Pursuant to s 38(1)(a), (b) & (c) I granted that leave. Subsequently, the Crown tendered an edited version of the electronically recorded interview between the witness and Detective Beck made on 19 November 1997 (the ERISP). Mr Spencer objected to the admission of that evidence. I allowed it in. I now give my reasons for each of these rulings.

2    Mr Chipperfield was jointly charged with the accused with the murder of the deceased, David Palin. It appears that the two men became suspects in the police investigation at an early stage. In his interview with Detective Beck Mr Chipperfield gave a detailed account of the assault and robbery of David Palin on 18 November 1997. He put forward a version that the accused had, in the course of the robbery, assaulted the deceased by striking him with a piece of wood which resembled the leg of a chair.

3 Mr Chipperfield and the accused were arraigned before Carruthers AJ on 15 June 1999. The indictment contained two counts against Mark Chipperfield; the first was of the murder of David Palin, the second (and alternative count) was of robbery in company contrary to s 97 of the Crimes Act 1900. Upon his arraignment Mark Chipperfield pleaded guilty to the alternate count and the Crown accepted that plea in full discharge of the indictment. The arraignment of the accused, Jason Rees, was stood over until after the completion of the sentence proceedings involving the witness, Chipperfield.

4    On 15 June 1999 an agreed statement of facts was handed up to Carruthers AJ and on the following day his Honour sentenced Mark Chipperfield to a minimum term of 3 years and 3 months penal servitude to date from 19 November 1999. An additional term of 1 year and 9 months was specified.

5    The accused was arraigned before Carruthers AJ on 17 June 1999 upon an indictment in the same terms as the present. He pleaded not guilty and a jury was empanelled and the trial proceeded. On 24 June the witness, Mr Chipperfield, was called in the Crown case. The effect of his evidence on that occasion was that he had no recall of the robbery of David Palin on 18 November 1997.

6    The jury were discharged without verdict in the trial before Carruthers AJ, they being unable to agree.

7    The accused was remanded for retrial. The date fixed for that trial was 31 January 2000. Prior to empanelling the jury I dealt with a number of preliminary issues in the week commencing 31 January. The Crown Prosecutor observed that the Crown was on notice of the likelihood (having regard to the way matters had proceeded in the trial before Carruthers AJ) that Mr Chipperfield would not adhere to the account given to police in the course of his record of interview. In the event that Mr Chipperfield were to maintain that stance the Crown Prosecutor foreshadowed that she would make an application for leave pursuant to s 38 of the Act. It was considered convenient to explore that matter prior to empanelling the jury. Mr Spencer consented to this course.

8    On 2 February 2000 Mr Chipperfield was called and gave evidence on the voir dire. Put shortly he denied any recall of the events of 18 November 1997 or of his participation in the ERISP. For reasons that it is not necessary to recite, the trial was thereafter adjourned.

9    On 31 May 2000 the trial of the accused commenced before me and a jury. The Crown indicated an intention to call Mark Chipperfield. As I have noted above, Mr Spencer objected to the reception of evidence from this witness. In the light of the observations of Wood CJ at CL (with whom the other members of the Court agreed) in Regina v Fowler [2000] NSWCCA 142 at [130] it seemed appropriate to hear evidence from the witness on the voir dire. Mr Chipperfield gave evidence in the absence of the jury on 6 June 2000. He said that he had no memory of events on 17 or 18 November 1997. He did not recall being taken into custody. A day or two thereafter he became aware that he was being held in connection with the death of David Palin. He has not suffered any defects in his memory since that time. The memory loss is for a discrete period which coincides with the subject offence and is otherwise unexplained.

10    At the conclusion of the evidence taken on the voir dire the Crown Prosecutor indicated that it remained her intention to call the witness. This was a case in some respects like that of Regina v Adam (1999) 47 NSWLR 267 in which it was plain that the Crown’s forensic purpose in calling the witness was with a view to obtaining the grant of leave to cross examine pursuant to s 38(1) and to prove the contents of the previous representations made by the witness in the course of the interview either as prior inconsistent statements or as an exception to the hearsay rule pursuant to s 66(2) of the Act.

11    I should also note that Mr Chipperfield’s evidence was that he had viewed the ERISP but that this had not revived his memory as to the statements he made therein. In the light of this evidence I did not consider that attempts should be made to have the witness revive his memory pursuant to s 32 of the Act prior to addressing any issue as to the grant of leave under s 38.

12    Mr Spencer submitted that I would exclude the evidence in the exercise of discretion pursuant to s 137 of the Act. He contended that the probative value of the evidence of the witness was slight; he had no memory of the subject events. The tender of the ERISP carried a danger of unfair prejudice which outweighed such probative value as it might have. The unfair prejudice which Mr Spencer identified was that he had no opportunity to test the witness upon the version given in the ERISP since the witness now claimed amnesia for the subject events. Allied to this was the inference the jury might draw as to the reason for the witness’ amnesia. It was plainly feigned. The jury was likely to reason in one of two ways; (i) Chipperfield feared repeating his allegations in the presence of the accused or (ii) Chipperfield wanted to help the accused by not repeating his allegations. Either inference carried the real risk of prejudice to the accused. There was no way the accused could meet this.

13    In Fowler in the Court of Criminal Appeal the Crown Prosecutor conceded that the probative value of the two witnesses (the subject of the grant of leave to cross examine in each case pursuant to s 38) was slight. The Crown submitted that this was not the case here. The Crown case is one of ‘common purpose murder’. It is alleged that the accused and Mark Chipperfield were a party to a common purpose to rob David Palin. They were armed with a wooden table leg and during the robbery one or other (or both) repeatedly struck the deceased with the table leg occasioning the head injuries from which he died. Central to the Crown case is proof of the common purpose to rob. The Crown seeks to prove that Chipperfield has on a prior occasion admitted both that he was present at the deceased’s unit on the morning of 18 November 1997 and that he entered the unit demanding that the deceased hand over his drugs and that the deceased was struck with a wooden table leg.

14    For his part Mr Spencer stated that in the event that Mark Chipperfield were not called he would not invite any Jones v Dunkel inference.

15    The probative value of evidence means the extent to which the evidence could rationally assess the assessment of the probability of the existence of a fact in issue. A fact in issue in these proceedings is whether there existed a common purpose between the accused and Mark Chipperfield to rob David Palin on 18 November 1997. I do not consider that the probative value of the evidence of the witness Mark Chipperfield can be said to be either slight or neutral in the way the evidence of the two witnesses in Fowler was held to be (I say this in the light of the view I have come to as to the admissibility of the ERISP in the event Mr Chipperfield is called).

16    In R v GAC NSWCCA (unreported) 1 April 1997 the witness also claimed amnesia for the subject events. Gleeson CJ (in a judgment with which the other members of the Court agreed) observed that by virtue of ss 60 & 66 of the Act the contents of the interview was admissible subject to considerations of unfairness. Generally, his Honour observed:

“…[T]he jury could well have considered that, having regard to the circumstances of the interview, including its proximity to the critical events, what C said to the police was likely to be a good deal more reliable than what he said in court. For my part, I would not regard the probative value of the interview as being outweighed by unfair prejudice to the appellant; nor do I consider that there was substantial unfairness of the kind relied upon by the appellant” (at p.18).

17    I note that In GAC it was not known in advance that the witness would claim to have no recall of the subject events. In the light of the reasoning of the Court in Adam (and given that I am of the view that the contents of the ERISP are admissible under s 66 of the Act) I do not consider that anything turns on this distinction.

18    In GAC the witness, in the course of cross examination, made a number of concessions favourable to the defence case. I approached this matter upon an assumption that Mark Chipperfield would remain resolute as to his memory deficit and, accordingly, that he would not be able to be tested nor would he make concessions to the cross examiner.

19    Unfair prejudice for the purpose of s 137 is concerned with whether there exists a danger that the jury will use the evidence “upon a basis logically unconnected with the issues in the case; R v Lockyer (1996) 89 A Crim R 457 per Hunt CJ at CL at 460. I did not consider that the difficulty Mr Spencer highlighted with respect to the cross examination of the witness constituted a danger of unfair prejudice such that I should exclude the evidence pursuant to s 137.

20 Mr Chipperfield was called in the presence of the jury and gave evidence consistent with that which he had given on the voir dire. The Crown Prosecutor sought leave to cross examine him pursuant to s 38(1). I had not made a ruling formally at the conclusion of the voir dire on the grant of leave since it seemed to me to be premature to do so. It remained possible (although perhaps unlikely in the light of the history of the matter) that the witness would give answers before the jury which differed from the tenor of his evidence on the voir dire. I indicated a provisional view that I would be disposed to grant leave pursuant to s 38(1) (a), (b) & (c) in the event that his evidence was in accord with that given on the voir dire. It was agreed that I might have recourse to the evidence given on the voir dire in determining any application for the grant of leave under s 38. In the presence of the jury Mark Chipperfield gave evidence that he had no recall of the events of the 18 November 1997 nor the following day. I granted leave to the Crown Prosecutor to cross examine him. In so doing I had regard to the considerations set out in s 192(2)(a) - (e) of the Act. In particular, I note that I did not consider that there was any unfairness to the witness in granting leave. The proceedings against him have been finalised. I did not consider that the grant of leave would work unfairness to the accused for the reasons I have referred to above. I have already noted the importance of the evidence in the proceedings. I also had regard to the nature of the proceedings namely that the accused is being tried upon an indictment charging him with murder.

21 I was quite satisfied that Mark Chipperfield was not making a genuine attempt in the course of his examination in chief to give evidence. I regarded his claim as to memory loss for the period of days surrounding the subject events to be unworthy of belief. It may not have been necessary to consider the grant of leave under s 38(1)(a) having regard to the view I had formed as to the witness’s unfavourable attitude; see R v Lozano (unreported) NSWCCA, 10 June 1997. However, on any view I considered that his evidence was unfavourable in the way that term has been explained in R v Souleyman (1996) 40 NSWLR 712.

22    Mr Spencer submitted that the previous representations contained in the ERISP were not made when the occurrence of the asserted facts were fresh in the witness’ memory within the meaning of s 66(2) of the Act. Detective Beck commenced his interview with the witness at 3.46pm on Wednesday 19 November 1997. The evidence suggests that the fatal assault on the deceased occurred at around 8.00am on Tuesday 18 November 1997. Thus the interview was made within 32 hours of the happening of the events. I consider that this does not fall outside the period of being “fresh in the memory” for the purpose of the section. I have regard to the observations of Gaudron, Gummow and Hayne JJ in Graham v The Queen [1988] HCA 61; 195 CLR 606 at 608 [4]:

“Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years”.

23    Mr Spencer’s challenge on the issue of “freshness” was directed more to the evidence as to the witness’ state of drug induced intoxication than with contemporaneity. In the interview the witness gave an account of taking heroin on the previous day after the robbery of Mr Palin. There were features of his presentation during the interview consistent with a view that he was affected to some degree by the ingestion of drugs. A statement from Dr Moynham was tendered by the Crown going to this question. It is not clear to me that the determination of whether events are “fresh in the memory” for the purpose of s 66(2) invites consideration of the reliability of the witness’ memory in the light of any evidence touching on drug ingestion or the like. However, it is not necessary for me to decide this question since I am of the view that the evidence does not disclose a basis for concern that in consequence of his consumption of drugs Mark Chipperfield’s memory as to the events of 18 November was not “fresh” when he participated in the interview with Detective Beck.

24    I considered that the contents of the ERISP were admissible pursuant to s 66(2) of the Act. I was also of the view that it was open to the Crown to prove the contents of the statement pursuant to s 43 of the Act as a prior inconsistent statement the making of which had not been admitted by the witness. The credibility of the witness was an issue once he was called and denied recollection of the events of 18 November 1997. I considered that the proof of the previous representations made by the witness had substantial probative value within the meaning of s 103 of the Act.

25    Having regard to the circumstance that the edited ERISP would be available as evidence of the facts which Mark Chipperfield had intended to assert therein (either pursuant to s 66 or s 60) I was invited to reject it in the exercise of discretion under s 137. For the reasons I have set out above, in dealing with the application to exclude the evidence of the witness in its entirety, I did not consider that the probative value of the ERISP was outweighed by the danger of unfair prejudice to the accused and accordingly I admitted it.

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Last Modified: 09/26/2000