R v Riny - [2018] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RINY
[2018] SADC 12
Reasons for Ruling of His Honour Judge Chivell
26 February 2018
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY
CRIMINAL LAW - EVIDENCE - HEARSAY - ADMISSIBILITY
Applicant and co-accused charged with aggravated causing harm with intent to cause harm. Victim was severely assaulted by three males. Whether applicant was one of the assailants. Applicant seeking exclusion of evidence from a witness who says she was introduced by a co-accused to a man bearing the same name as the applicant. Whether the introduction evidence is hearsay. Whether an inference can be drawn that the applicant heard the introduction. Whether the similarity in the names of the applicant and his brother renders the proposed evidence more prejudicial than probative.
Held: The inference that the applicant heard the introduction is open. The evidence is not hearsay. It is not being led for a hearsay purpose. The evidence is fit to go to the jury and is for the jury to weigh. The application to exclude the evidence dismissed.
District Court Criminal Rules 2014 r 49; Subramanian v Public Prosecutor [1956] 1 WLR 965; R v Kamleh [2003] SASC 269; R v Christie [1914] AC 545; R v Thomas [1970] VR 674; R v Strausz (1977) 17 SASR 197; R v Salahattin [1983] 1 VR 521, referred to.

R v RINY
[2018] SADC 12

Mr Riny is jointly charged with Mr Door with aggravated causing harm with intent to cause harm. Mr Door is also charged with aggravated theft. They have pleaded not guilty. The trial is listed to be heard on 26 November 2018.
The charged offences are alleged to have occurred on 1 November 2015 at about 1.50 a.m. There is no dispute that the victim was severely assaulted by three male offenders in a laneway off Pulteney Street in the Adelaide CBD, and that his property was stolen. The events were recorded on CCTV.
At issue is the identity of the three assailants. It is the prosecution case that Mr Riny and Mr Door were two of them, and the third was a man with the nickname ‘TJ’.
Mr Riny has applied, pursuant to rule 49 of the District Court Criminal Rules 2014, for an order:
6. That the Crown be prohibited from leading the evidence contained in the declaration of Awaak Yout, dated 5 February 2016 at pages 2 [4] and 3 [2], [4]-[5] insofar as there is a purported identification of the third male as being Lual Riny.
Ground:
6.1The evidence is more prejudicial than probative.
The evidence proposed to be led from Ms Yout is, in summary, that:
·she booked a room at the Mantra Hotel, which is situated quite close to the place where the events occurred, for Friday, 30 and Saturday, 31 October 2015;[1]
·she proposed to have a Halloween party in the room on the Saturday night;
·one of the invitees was Mr Door, whom she knew. She also invited TJ, whom she also knew;
·when Mr Door and TJ arrived at the party, they were accompanied by a third man. She stated:
When Wol and TJ arrived at the party, they had another guy with them, so we couldn’t really not let him come in with them. Wol and TJ introduced the third guy as Lual RINY. I had not met him before.
·at some time between midnight and 1 a.m. on 1 November 2015, they were ‘kicked out’ of the Mantra Hotel for being too noisy. They all left the hotel;
·about three or four hours later, she spoke to police officers in Hindley Street in the city. They showed her a photograph depicting her and three men ‘from when I’d let them in to the Mantra hotel’. She told the police their names.
[1] The reference to ‘November’ in her statement dated 5 February 2016 is clearly an error.
It is the prosecution case that Ms Yout recognised the three men in the photograph (taken from a CCTV recording at the Mantra Hotel) as being the three men at the party.
This is not strictly evidence of identification. Ms Yout recognised Mr Door and TJ as people she knew. The evidence about Mr Riny is confined to a statement that the man in the photograph was the man at the party who was introduced to her as ‘Lual Riny’.
Hearsay
Mr Armstrong, counsel for Mr Riny, submitted that the evidence of the ‘introduction’ is hearsay. Mr Armstrong quoted from the judgment of the Privy Council in Subramanian v Public Prosecutor:[2]
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.
[2] [1956] 1 WLR 965 at 970.
The judgment goes on to say:
The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.
(My emphasis)
Mr Pearce QC, counsel for the Director of Public Prosecutions, submitted that the evidence of the introduction is being led for the purpose identified by the Privy Council. It is submitted that it can be inferred from Ms Yout’s statement that the introduction was in a social situation. If the introduction was incorrect, it is to be expected that the person being introduced would have demurred in some way. He was not in a situation where he might be expected to exert his right to silence. It would therefore be open to a jury to infer that this was a piece of circumstantial evidence that the person being introduced bore the name Lual Riny.
This evidence arose in similar circumstances to those in R v Kamleh.[3] In that case, Lander J said:[4]
Mr Raymond Kamleh’s statement was made in the presence of the appellant and in circumstances where it could be inferred that he heard what Mr Raymond Kamleh said.
His Honour referred to the opinion of Lord Atkinson in R v Christie:[5]
As to the second ground, the rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. If he accepts the statement in part only, then to that extent alone does it become his statement. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part.
[3] [2003] SASC 269.
[4] At [212].
[5] [1914] AC 545 at 554.
As in this case, there was no evidence that Mr Kamleh said anything, so it could not be said that he accepted the statement ‘by word’. Lander J continued:
A party can, however, by silence or other conduct, acknowledge the truth of a statement. Where a party has failed to deny a statement in circumstances where it might be expected that such a denial would be forthcoming, the absence of that denial or other conduct can lead to the inference “that he has acknowledged the truth of the statement so as to make it his own, or has so conducted himself as to show a consciousness of guilt”: R v Thomas [1970] VR 674 at 679; R v Strausz (1977) 17 SASR 197.
In those circumstances where a party has had an opportunity to deny the correctness of or explain a statement made in his or her presence in circumstances where the party might have been expected to deny that statement, or make some comment in relation to it, that party’s reaction or lack of it becomes admissible against the party.
It is the response which is admissible and from which the inference might be drawn that he has acknowledged the truth of the statement or shown a consciousness of guilt: R v Salahattin [1983] 1 VR 521 at 528.
This is not a case where an accused person has remained silent in circumstances where a victim or a person in authority has made an accusatory statement and the accused has remained silent as the accused is entitled to do: Hall v R [1971] 1 All ER 322.
In this case the appellant was in a social situation when his cousin asked another person to give the appellant a false alibi and where that other person enquired as to the reason. If Raymond Kamleh’s question was unsolicited by the appellant, it would be expected that the appellant would say so. Certainly it would be expected that he would have said something in response to Mr Kendall’s enquiry.
I consider that the same considerations apply here. This was a social situation in which it might be properly inferred that the person being introduced would be expected to make some comment if the introduction was incorrect. In the absence of such comment, the jury might infer that the introduction was correct.
Mr Armstrong submitted that there is no evidence that his client heard the introduction, and hence no grounds upon which an inference that he acquiesced in it could be drawn. He quoted R v Thomas,[6] R v Strausz[7] and R v Salahattin.[8]
[6] [1970] VR 674.
[7] (1977) 17 SASR 197 at 201-2.
[8] [1983] 1 VR 521 at 528.
This was a voir dire conducted on the papers. There was no suggestion from either party that Ms Yout should give evidence on the voir dire. Mr Armstrong conceded during oral submissions that the question of whether Mr Riny heard the conversation in question was a matter for the jury.[9] It was only in his written reply to Mr Pearce’s submissions that Mr Armstrong raised this question.
[9] T 49.
It can be inferred from the statements on the court file that Mr Riny heard the introduction. It would have been a very strange introduction if he had not. For the purpose of this application, I draw that inference from Ms Yout’s statement. There is, therefore, evidence from which it may be further inferred that Mr Riny heard the introduction. There is therefore evidence which is ‘fit to go to the jury’ for their consideration, to quote Bray CJ in Strausz.[10]
[10] Supra.
Discretionary Exclusion
Mr Armstrong submitted that Mr Riny’s brother has a very similar name. He submitted that the proposed evidence is therefore more prejudicial than probative.
I reject that submission. The fact that there may be evidence to the contrary is irrelevant to the question of whether the proposed evidence should be excluded. Whether the evidence about the brother’s name will be before the jury, and in what context, is entirely hypothetical at this stage. In the event that it is before the jury, it will be for the jury to weigh that evidence.
For those reasons, the evidence of the ‘introduction’ is admissible for the purpose outlined above. It is not evidence which proves that the person being introduced was the accused Lual Riny. It is a piece of circumstantial evidence which, along with the CCTV recording, evidence of clothes worn by Mr Riny and other evidence, might lead the jury to that conclusion.
For the above reasons, I decline to make the orders sought by Mr Riny in the rule 49 application.
The application is dismissed.