R v Sahlstorfer - [2024] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)

R v SAHLSTORFER
Criminal Trial by Judge Alone
[2024] SASC 55
Reasons for Ruling of the Honourable Justice Stein
19 April 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - DEPOSITIONS - OF ABSENT WITNESS - PERSONS UNABLE TO ATTEND THROUGH DEATH OR ILLNESS - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - OTHER MATTERS
The accused is charged with murder.
At trial, the prosecution sought to tender the transcript of evidence of a witness given in a previous trial pursuant to s 34KA of the Evidence Act 1929 (SA). The witness had since died and was the only eyewitness to the events that lead to the victim’s death.
Defence applied pursuant to r 39 of the Joint Criminal Rules 2022 (SA) for the exclusion of the evidence pursuant to s 34KD of the Evidence Act 1929, or alternatively the common law Christie discretion, or the general unfairness discretion.
Held (refusing the application):
1.The case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, does not substantially outweigh the case for admitting it, taking account of the value of the evidence.
2.The testimony is not more prejudicial than probative to warrant the exercise of the Christie discretion.
3.Admitting the statement would not result in an unacceptable miscarriage of justice so as to enliven the general unfairness discretion.

Joint Criminal Rules 2022 (SA) r 39; Criminal Law Consolidation Act 1935 (SA) s 11; Evidence Act 1929 (SA) ss 34KA, 34KB, 34KC, 34KD, referred to.
R v Christie [1914] AC 545; Mullen v Director of Public Prosecutions [2020] SASC 10, applied.
R v Haines [2016] SASC 96, distinguished.
Kanaan v The Queen [2006] NSWCCA 109; R v Duke (1979) 22 SASR 46; R v Koenig (2013) 229 A Crim R 108; Ames v The King [2023] SASCA 85; Riat v The Queen [2012] EWCA Crim 1509; Horncastle v The Queen [2010] 2 AC 373; Cole v The Queen [2007] EWCA Crim 1924; Adams (a pseudonym) v The Queen; Bradley (a pseudonym) v The Queen [2021] SASCA 147; Ford v The King [2023] SASCA 117, considered.

R v SAHLSTORFER
[2024] SASC 55
Criminal: Voir dire

STEIN J: Defence applied under r 39 of the Joint Criminal Rules 2022 (SA) for orders that the Crown be prohibited from leading the evidence of out of court statements of Mr Sam Perkins.
The accused is charged with one count of murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The deceased, Mr Mark Robert Boyce, was attacked by three men on 30 January 2017. He remained unconscious after the attack and died nine days later on 8 February 2017. The pathologist, Dr Cheryl Charlwood, opined that the cause of death was significant blunt force head injuries.
I delivered a short oral ruling on 27 June 2023 refusing the defence application and informed the parties I would provide detailed reasons in due course. These are my reasons.
Prosecution case
The prosecution case against the accused, in summary, is as follows. Mr Boyce resided at 11B Hill Street, Elizabeth South and on 30 January 2017 was at home with friends, including Mr Perkins. Mr Perkins was waiting for Mr Christopher Wheatley who was going to give him a lift to another location. At about 10:33 pm, Mr Wheatley arrived at Mr Boyce’s home. Mr Perkins came out of the house, spoke to Mr Wheatley and asked if Mr Boyce could go with him. Mr Perkins then returned into the house. At about 10:39 pm, Mr Boyce came out of the house and spoke to Mr Wheatley. About 30 seconds later, two vehicles, a silver Toyota RAV4 and a dark blue Toyota Echo, stopped on the road near Mr Wheatley’s vehicle. Two men, said to be the accused and Mr Joshua Grant, got out of the Toyota Echo and a third man, said to be Mr E,[1] got out of the Toyota RAV4. The driver was heard yelling “Where the fuck is Sam?” a number of times with an accent. Mr Boyce ran down Hill Street towards number 20 and was chased by Mr Grant who then tackled him onto the footpath in front of 18 Hill Street. Mr Grant restrained Mr Boyce. Meanwhile the other two men got back into the vehicles which were driven down the road to where Mr Grant had restrained Mr Boyce. The accused and Mr E got out of the two vehicles and the three men then punched, kicked and stomped on Mr Boyce delivering at least 20 blows over about 15 seconds. The three men then returned to the vehicles and drove away. Mr Boyce was taken to hospital and later died.
[1] There is a suppression order in place in relation to Mr E’s name.
CCTV footage seized from 20 Hill Street is said to show the events upon which the prosecution rely. It is alleged the man who held down and restrained Mr Boyce had a visible plaster cast on his right forearm. Prosecution allege medical records show Mr Grant’s hand and forearm were placed in a plaster cast on 27 January 2017. Mr Boyce’s T-shirt was cut off him by ambulance officers and later seized and submitted for DNA analysis. Prosecution allege Mr Grant’s DNA was matched to the mixed DNA profiles obtained from six locations on the T-shirt.
On 2 March 2017, police published a media release describing two vehicles of interest. In September 2019, police searched a property, known as Ponde, which was the clubhouse of the Hells Angels Motorcycle Club. Police found buried under four metres of compressed sand various car parts and a partial chassis that had been burned. The engine number is said to match the engine number of a blue Toyota Echo last registered to the accused.
On the prosecution case, Mr Wheatley, Mr Grant and Mr Robbie Thaller, a resident of 20 Hill Street, are well acquainted with each other and Mr E and Mr Grant are affiliated with the Hells Angels. The prosecution case relies in part on cell tower location data said to indicate that the accused travelled from his home on 30 January 2017 and was in the area of Mr Boyce’s home immediately prior to the assault. Prosecution contend that call charge records indicate that the mobile number associated with the accused was in contact with Mr Grant, Mr E and Mr Wheatley immediately prior to the assault on Mr Boyce.
On the prosecution case, Mr Perkins was on the roof of 11B Hill Street during the attack on Mr Boyce and witnessed significant aspects of the incident.
Statements of Mr Perkins
On 30 January 2017, Mr Perkins was evading police because he had breached his conditions of parole. Mr Perkins was arrested on 30 January 2017 following the attack on Mr Boyce. He initially refused to cooperate but gave a statement to police, which he signed on 10 February 2017, after Mr Boyce died.
In his initial statement, Mr Perkins described the attack, including giving a description of the two vehicles. He described the driver of the small car as “Serge” who spoke with an accent. Mr Perkins gave a further signed statement to police on 16 January 2019 and a further statement on 6 June 2019. In a later statement, Mr Perkins said that the driver of the car was the accused. He gave reasons why he had changed his position about the identity of the driver.
Evidence in Grant trial
Mr Grant was tried by jury on a charge of murder in June 2019. Mr Perkins gave evidence in the trial of Mr Grant and was cross-examined by senior counsel for Mr Grant. Mr Perkins was not asked questions about the identity of the driver of the small car. The identity of the two other men involved in the incident with Mr Grant was received as an agreed fact.
Death of Mr Perkins
Mr Perkins died after giving evidence and therefore cannot give evidence in the trial of the accused.
Prosecution seeks to tender at trial the transcript of Mr Perkins’ evidence in the Grant trial. Prosecution do not seek to tender the previous signed statements.
Basis of application for exclusion
The accused sought the exclusion of the evidence of Mr Perkins pursuant to s 34KD(1) of the Evidence Act 1929 (SA) (“the Act”) and also the common law Christie[2] discretion and the general unfairness discretion.
[2] R v Christie [1914] AC 545.
Evidence of Dr Begg
Dr Jules Begg, psychiatrist, was provided with, and reviewed, a number of historical documents relating to Mr Perkins including police apprehension reports, social background reports, and psychological and psychiatric reports. Mr Perkins had a prior history of involvement in the criminal justice system and a number of reports had been prepared in that context and in the context of therapeutic treatment. Some previous reports described Mr Perkins as suffering from a depressive illness and substance abuse issues. In 2016, Dr Lorraine Lim, a psychologist with forensic specialisation, prepared a report in which she concluded that Mr Perkins’ presentation was consistent with an underlying antisocial personality disorder, post-traumatic stress disorder and amphetamine use disorder.
Dr Begg agreed with the opinion of Dr Lim and opined that Mr Perkins met the criteria for antisocial personality disorder. He explained that the antisocial personality disorder diagnosis applies to people who habitually and pervasively disregard or violate the rights and considerations of others without remorse. Dr Begg further explained that the decisions of persons with this disorder can be seen to be driven by their own desires without considering the needs of others or the negative effect of their actions on others. People with antisocial personality disorder can possess superficial charm and be thoughtful, cunning, and manipulative. Dr Begg said they are able to harm others without remorse or regret. Dr Begg opined that in the materials provided to him, he saw evidence of deception, manipulation, impulsive behaviour, irresponsibility, a lack of remorse, and a disregard for Mr Perkins’ own safety and the safety of others. Dr Begg thought that Mr Perkins’ agenda would almost invariably have been to put himself first and to give a story that would seek to favour his own agenda. Dr Begg said Mr Perkins would have had the capacity to accurately and truthfully relate events, but only if by doing so he was not disadvantaged, and his prime consideration would have been himself. Dr Begg thought Mr Perkins would have been prepared to admit wrongdoing if he knew he was not going to be prosecuted and if he thought that would support the narrative he wished to convey. Dr Begg said that because lying and manipulation of others was an integral part of Mr Perkins’ personality, there may be a disadvantage to the accused in legal proceedings if he were not able to be cross examined to elucidate inconsistencies in his testimony.
In his addendum report, Dr Begg opined that the breadth and severity of features presented by Mr Perkins indicated a severe antisocial personality disorder. Dr Begg described how he would recommend counsel approach cross-examining Mr Perkins to demonstrate inconsistencies in his evidence if Mr Perkins was available to give evidence.
When asked whether or not there was a mechanism available to permit a conclusion that one of the fundamentally different statements made by Mr Perkins regarding the offender’s identity could be accepted beyond reasonable doubt as true, Dr Begg said the only test he saw that could be of any benefit would be whether there would be a motive for Mr Perkins to give one statement over the other.
While accepting that the only psychologist or psychiatrist who had referred to antisocial personality disorder was Dr Lim, during cross-examination Dr Begg said that such a diagnosis carries stigma and consequently personality disorder diagnosis is often not mentioned unless it is quite pertinent to the purpose of the report. Dr Begg thought Dr Lim’s use of the phrase “consistent with antisocial personality disorder” meant the presentation matched the criteria for antisocial personality disorder.
During cross-examination, Dr Begg accepted that many individuals with antisocial personality disorder will, and can, put other people before themselves and they do have a capacity to help others. He said a difference is that, in general, an individual with antisocial personality disorder is looking at how a situation benefits them and the effect on themselves. Dr Begg opined that when Mr Perkins told police about his previous criminal conduct including bashing and robbing others, Mr Perkins may have tried to create credibility as someone who was knowledgeable and could be trusted. Dr Begg accepted that what Mr Perkins was saying might entirely be true. In considering Mr Perkins’ motivation, Dr Begg said Mr Perkins’ motivation would first and foremost be himself. That did not mean he would not be motivated by other factors including telling the truth, but it would be through the lens of Mr Perkins’ desire to ensure he come first. When asked how implicating a member, or former member, of the Finks Motorcycle Club would assist Mr Perkins, Dr Begg said he did not know what benefit Mr Perkins would derive from doing so, but could only postulate that Mr Perkins would have seen some benefit for himself. He accepted that he could not be absolutely sure that Mr Perkins was motivated by self-interest. Dr Begg allowed for the possibility that people with antisocial personality disorder do tell the truth.
Dr Begg said that considering where Mr Perkins’ evidence sits with other evidence in the case is an important aspect, particularly where there are concerns that people might be deceitful and consequently it is important to know what evidence exists in relation to the facts. Dr Begg accepted that a psychiatrist would have no additional training or be in any better position to assess conflicts in evidence than the average random jury member and agreed he was in no better position than a jury to assess conflicts in evidence between witnesses. When asked whether there was any significance in the fact that Mr Perkins’ account about events in Hill Street remained consistent from the first and second statement (apart from the identity of the attacker), Dr Begg said he was not sure. He said Mr Perkins may be telling a consistent story because that was what actually happened, but it would not preclude the possibility Mr Perkins told the same lie twice.
Dr Begg accepted that it was not the case that because Mr Perkins said something he would not believe it, but rather that what was said should be tested more than a statement from an average person because people with antisocial personality disorder are deceitful. Accordingly, he said it is necessary to be alert to any benefit that may be derived by Mr Perkins, such as in changing the story as to who was the attacker. When counsel for the prosecution put to Dr Begg that it was unlikely to be of particular benefit to Mr Perkins to point the finger at the Finks and then to also point the finger at the Hells Angels, Dr Begg said he did not know what motive Mr Perkins would have to change his story. Dr Begg could only offer that it is important to remember that people like Mr Perkins are going to look at things from their perspective and how it would benefit them, but that there was also a possibility that there was no benefit for him and he was acting out of a social conscience. Dr Begg accepted that there was no obvious benefit to Mr Perkins in telling the story he gave, which amounted to hiding on the roof and doing nothing whilst his best friend was bashed, other than to postulate it was to keep the police engaged in the story, to place himself there and make himself a knowledgeable witness. Dr Begg suggested it was necessary to consider when Mr Perkins was interviewed by police whether there was a benefit to him such as an agreement to go easy on him for other crimes.
Legislative provisions
The relevant provisions of the Act are ss 34KA to 34KD and they provide as follows.
34KA—Admissibility of evidence of out of court statements by unavailable witnesses
(1)Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a)     oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b)     the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and
(c)     any 1 of the conditions specified in subsection (2) is satisfied.
(2)The conditions are as follows:
(a)     that the relevant person is dead;
(b)     that the relevant person is unfit to be a witness because of a bodily or mental condition;
(c)     that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;
(d)     that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;
(e)     that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.
(3)For the purposes of subsection (2)(e) fear is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss.
(4)Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to—
(a)     any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and
(b)     the statement's contents; and
(c)     any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross examine the person); and
(d)     any other measures that could be taken by the court in relation to the relevant person; and
(e)     any other relevant circumstances.
(5)A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—
(a)     by the person in support of whose case it is sought to give the out of court statement in evidence; or
(b)     by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement).
(6)Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement.
(7)This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence.
(8)In this section—
prescribed proceedings means—
(a)     proceedings for a criminal offence; or
(b)     proceedings under the Serious and Organised Crime (Control) Act 2008.
34KB—Credibility
(1)This section applies if in prescribed proceedings—
(a)     a statement not made in oral evidence in the proceedings (an out of court statement) is admitted as evidence of a matter stated; and
(b)     the maker of the out of court statement does not give oral evidence in connection with the subject matter of the statement.
(2)In a case to which this section applies—
(a)     any evidence which (if the person who made the out of court statement had given such evidence) would have been admissible as relevant to the reliability of the statement and the person's credibility as a witness is so admissible in the proceedings; and
(b)     evidence may, with the court's leave, be given of any matter which (if the person who made the out of court statement had given such evidence) could have been put to the person in cross examination as relevant to the reliability of the statement and the person's credibility as a witness but of which evidence could not have been adduced by the cross examining party; and
(c)     evidence tending to prove that the person who made the out of court statement made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that the person contradicted himself or herself.
(3)If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.
(4)In this section—
prescribed proceedings means—
(a)     proceedings for a criminal offence; or
(b)     proceedings under the Serious and Organised Crime (Control) Act 2008.
34KC—Stopping the case where evidence is unconvincing
(1)If on a defendant's trial before a judge and jury for an offence the judge is satisfied at any time after the close of the case for the prosecution that—
(a)     the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings (an out of court statement); and
(b)     the evidence provided by the out of court statement is so unconvincing that, considering its importance to the case against the defendant, a conviction of the offence would be unsafe,
the judge must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.
(2)Where—
(a)     a jury is directed under subsection (1) to acquit a defendant of an offence; and
(b)     the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence,
the defendant may not be found guilty of that other offence if the judge is satisfied as mentioned in subsection (1) in respect of it.
(3)This section does not prejudice any other power a judge may have to direct a jury to acquit a person of an offence or to discharge a jury.
34KD—Court's general discretion to exclude evidence
(1)In prescribed proceedings the court may refuse to admit a statement as evidence of a matter stated if—
(a)     the statement was made otherwise than in oral evidence in the proceedings; and
(b)     the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.
(2)Nothing in this section derogates from any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).
(3)In this section—
prescribed proceedings means—
(a)     proceedings for a criminal offence; or
(b) proceedings under the Serious and Organised Crime (Control) Act 2008.
Defence submissions

In order to engage the pathway to admissibility the prosecution must satisfy the Court that the three conditions set out in ss 34KA(1)(a)-(c) are met. Defence accepted those three conditions were satisfied. However, defence sought the exclusion of Mr Perkins’ evidence pursuant to s 34KD(1) or, alternatively, because its admission would be unfair or because the evidence is more prejudicial than probative.
The primary foundation for the defence submission was that the witness met the diagnostic criteria for antisocial personality disorder which was said to impugn the reliability and credibility of the police statements and the evidence from the Grant trial which could not now be the subject of cross-examination. Defence submitted the police statements were obtained in circumstances which adversely affected their credibility and reliability because Mr Perkins was in custody, police elected not to make an audio-visual record of his statements, the statements were recorded in narrative style and the statements were taken in circumstances where the witness perceived, or may have perceived, a benefit available to him in providing assistance to police. Defence further submitted that the evidence of Mr Perkins in the Grant trial was a product of the forensic landscape of that trial in which all parties accepted that the accused was depicted in the CCTV footage. Defence contended that the evidence sought to be adduced was in part available to the Crown through other sources.
Defence submitted the admission of the evidence would be unfair because the accused would be deprived of the opportunity to cross-examine, to observe Mr Perkins’ demeanour, to have Dr Begg make observations of Mr Perkins while giving evidence and there were no other sources from which to assess the witness’ demeanour. Defence submitted that the accused was deprived of the opportunity to cross-examine on a number of topics including the circumstances in which statements were obtained, the reason for his change in account of the identity of the driver of the small car, the extent he believed he would obtain a benefit, the nature and extent of his antisocial personality disorder and other matters going to the reliability and credibility of the witness and his statements.
Defence submitted that the counterbalance provisions in s 34KB to 34KD do not provide an adequate safeguard as there is a need to carefully scrutinise the evidence and the witness’ response to cross-examination. There was no opportunity to review audio-visual records and will be no opportunity to cross-examine on matters peculiarly within Mr Perkins’ knowledge such as his perception of any benefit to himself in participating in the trial process and on matters going generally to his credibility and reliability.
Defence submitted the evidence is more prejudicial than probative and that the value of the evidence must include its weight. Defence contended Mr Perkins was not purporting to give evidence of recognising the blue vehicle and the weight of his evidence concerning the observation of the blue vehicle was just an opinion formed from the top of a roof concerning passing cars at night time. Defence submitted there was other evidence which suggested the car was green and other evidence suggesting the car was red and consequently the evidence had little value and even less weight. Defence contended that when considering the weight of the evidence it was not enough that Mr Perkins’ evidence was consistent across statements, but rather it was necessary to consider what the witness said as a whole and the evidence as a whole. Defence submitted that it was reasonably possible that the giving of the first statement was a product of Mr Perkins’ antisocial personality disorder and could have included a mechanism to achieve revenge on the person he purported to identify (Serge) or get him locked up to protect Mr Perkins.
Defence referred to the circumstances in which Mr Perkins’ second statement was made and submitted that he was only willing to provide further information if there was something in it for him. Defence pointed to the risk of unreliability in evidence given in a statement induced by the promise to not use the statement against the person. Relying on Kanaan v The Queen,[3] defence submitted that such evidence may be unreliable because the witness has locked themself into a version of events and may feel bound to repeat that false version when giving evidence, as a matter of self-protection in order to avoid prosecution for his or her own criminal activity. Defence contended there was a positive duty on police in circumstances such as these to record evidence audio-visually.
[3] [2006] NSWCCA 109.
Defence submitted the evidence was of little weight and the risk of unreliability was overwhelming by reason of the two fundamentally different versions given as to the attacker’s identity and the evidence of Dr Begg. Defence contended the reliability of Mr Perkins could not be assessed and Mr Perkins could not be said to be disinterested. Defence submitted the means of testing the reliability was denied given the absence of recording and given the manner in which the statements were taken.
Defence relied, in support of the exercise of the Christie discretion, on the prejudice derived from the evidence of the purported identity of the accused as the driver of the small car on the basis the witness had locked himself into a version and may feel bound to repeat that false version when giving evidence. That was said to be aggravated because the evidence lacked any weight and could not meaningfully be tested. Defence submitted that the change in position by Mr Perkins on the identification of the accused was a reconstruction which was so flawed that it would be difficult or impossible to accept any of the evidence.
Prosecution submissions
The prosecution seeks only to use Mr Perkins’ evidence from the Grant trial but accepts counsel for the accused might then seek to introduce Mr Perkins’ previous statements into evidence.
Counsel for the prosecution submitted that the provisions of the Act mirror United Kingdom legislation (the Criminal Justice Act 2003 (UK)) which was based on recommendations of Law Reform Commission Report (“Evidence in Criminal Proceedings: Hearsay and Related Topics”[4]) and accordingly, United Kingdom case law provides guidance in the interpretation and application of the provisions. Prosecution referred to a number of relevant United Kingdom and South Australian authorities addressing s 34KA which I discuss below.
[4] United Kingdom Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (Consultation Paper No 138, 1995).
Prosecution submitted the evidence given by Mr Perkins in the Grant trial is important to the prosecution to establish that the small car seen on CCTV was blue, had a faded roof, a sports exhaust, was being driven by a man with an accent and that the driver repeated “Where the fuck is Sam?” three times.
Prosecution pointed to the consistency across the statements given to police and during evidence that the car was a small blue car with a faded roof and a loud exhaust. Prosecution contended that other witness statements, including evidence of Ms Bourke and Mr Sicari, support Mr Perkins’ claim about the colour of the car and that it had a sports exhaust. The sequence of events described by Mr Perkins is said to be consistent with the CCTV. Prosecution pointed to telephone records which placed the accused’s phone in the area at the time of the killing and evidence that the accused and Mr E were known to Mr Grant. Reliance was also placed on call charge records showing a call from the telephone subscribed in the accused’s name to a telephone subscribed in Mr Wheatley’s name about three minutes before the incident.
Counsel for the prosecution submitted that Mr Perkins’ evidence in the Grant trial was given under oath, transcribed and was the subject of cross-examination in the Supreme Court. Prosecution contended the probative value of the evidence given by Mr Perkins in the Grant trial was clear as Mr Perkins was an eyewitness to key aspects of a murder, his account derived support from other sources, was consistent with the CCTV and there was nothing inherently unreliable about it.
Prosecution’s position was that there was no unfair prejudice or real risk that the evidence would be misused as distinct from the detriment to the interests of the accused derived from the probative force of the evidence.[5] Prosecution distinguished R v Haines (“Haines”),[6] discussed below, as a very different factual scenario.
[5] R v Duke (1979) 22 SASR 46 at 48 (King CJ).
[6] [2016] SASC 96.
Prosecution refuted any obligation whether by legislation or common law to record witness statements by audio-visual mechanism.
Prosecution submitted the Christie discretion had no application in this instance as the evidence was not prejudicial in the Christie sense.
Prosecution accepted that the common law principles on the general unfairness discretion are pertinent, however, submitted that the Court is uniquely placed to make a full assessment of Mr Perkins given he has such an extensive criminal history and consequently there are significant reports available concerning Mr Perkins which defence can put before the Court pursuant to s 34KB. Prosecution contended that in this case the evidence can be verified in significant respects.
In considering the extent of unreliability, prosecution referred to support from the CCTV evidence, inferential support from witness statements and the involvement of Mr Grant which it said would be proved by independent evidence. Prosecution contended that Mr Perkins gave the same story all the way through in relation to the events in Hill Street and he never resiled or retracted any aspect of it after the statement was reduced to writing on 10 February 2017. It was accepted that this was personal to Mr Perkins because he considered he was the target of the attack. When naming “Serge the Russian”, a member of the Finks, prosecution submitted Mr Perkins was not deriving any benefit and rather was exposing himself to reprisal attacks. On a proper reading of the 10 February 2017 statement, prosecution contended Mr Perkins was making assumptions based on facts he knew, including that the Finks were after him, he had previous trouble with Serge, and Serge had a slight accent. The prosecution indicated they would not seek to lead the parts of Mr Perkins’ evidence dealing with the identity of the accused as any subsequent evidence about the accused was a process of reconstruction and not an identification as such.
In looking to whether there was any benefit to Mr Perkins in providing the statements, the Court should consider that the consequence of Mr Perkins’ narrative was to implicate the accused and other members of the Hells Angels. Accordingly, there was no benefit to Mr Perkins and prosecution referred to the statement in Mr Perkins’ affidavit of 16 January 2019 that he was putting his life on the line going against a worldwide outlaw motorcycle gang like the Hells Angels.
The 10 February 2017 statement was said to have been given at a time when Mr Perkins was in custody having been arrested on 30 January 2017 for breach of parole. He was not going to get the benefit of a deal on sentence and was in custody in an environment where members of outlaw motorcycle gangs have connections. Mr Perkins thus exposed himself to danger rather than putting himself in an advantageous position and prosecution submitted Dr Begg’s evidence must be seen in that context. In terms of the change in the statements from asserting the attacker was Serge to asserting the attacker was the accused, prosecution contended Mr Perkins’ explanations were clear as to why he changed his position and amounted to drawing conclusions and inferences, and making a mistake, but Mr Perkins did not resile from anything else said about the events that occurred on Hill Street.
Prosecution submitted if Mr Perkins was wrong or lied about Serge or the accused that did not necessarily mean his account on other issues needed to be discounted.
Mr Perkins was sentenced in relation to pleas of guilty for various firearms offences in November 2019. Mr Perkins’ account of events was given in February 2017 well before his counsel asked the Court to give him credit for cooperating in the prosecution involving an outlaw motorcycle gang member. Prosecution contended Mr Perkins did not get any “free kicks”, he was not given an immunity and during sentencing, prosecution resisted submissions he should not receive a non-parole period of four-fifths of the head sentence. Prosecution also submitted that an affidavit provided by the investigating officer to the sentencing Judge concerning the extent of Mr Perkins’ cooperation was a consequence of a request for clarification from the Court.
The prosecution observed that the opportunity remains for defence counsel to cross-examine police who were involved in taking statements from Mr Perkins. Counsel submitted that notes of the police officers present for the proofing were provided, and it was only notes of counsel which were not provided due to legal professional privilege.
Counsel refuted the suggestion that Mr Perkins had a substantial interest in tailoring his evidence to meet the Crown case including on the basis that at the time Mr Perkins gave his statement he was in custody and most of the statements obtained by prosecution from other witnesses were obtained at later dates.
Counsel contended there was nothing to enliven the Christie discretion and the main factor that was relied on to enliven the unfairness discretion is the loss of the right to cross-examine. However, it was submitted that the loss of the right to cross-examine was compensated for by the plethora of materials that defence could put before the Court to act as a counterbalance and that the evidence is properly admissible and ought not be excluded.
Authorities
Section 34KA
Section 34KA of the Act applies to oral and documentary out of court statements. The effect of s 34KA(1) is to make an out of court statement admissible in prescribed proceedings as evidence of any matter stated if specified conditions are satisfied.[7] Those conditions are that oral evidence of the matter, if given in the proceedings by the maker of the statement, would be admissible as evidence of that matter. The statement maker must be identified and any one of the conditions set out in s 34KA(2) must be satisfied.[8]
[7] R v Koenig [2013] SASC 42 at [199]; (2013) 229 A Crim R 108 at [199] (White J).
[8] R v Koenig [2013] SASC 42 at [199]; (2013) 229 A Crim R 108 at [199] (White J).
In applying s 34KA it is appropriate to have regard to the Law Reform Commission Report and Recommendations which form part of the context in which it is to be construed.[9]
[9] R v Koenig [2013] SASC 42 at [202]; (2013) 229 A Crim R 108 at [202] (White J); Ames v The King [2023] SASCCA 85 at [83] (Livesey P, Bleby JA and David JA).
In Riat v The Queen (“Riat”),[10] Lord Justice Hughes addressed provisions of the Criminal Justice Act 2003 (UK) equivalent to s 34KA. Lord Justice Hughes said that it is not the case that the hearsay evidence must be demonstrated to be accurate before it can be admitted nor does it have to be independently verified.[11] Lord Justice Hughes observed that in considering the statutory framework, the Court is concerned at several stages with both the extent of the risk of unreliability and the extent to which the reliability of the evidence can safely be assessed and tested.[12] Non-exhaustive examples include the circumstances of the making of the hearsay statement being such as to reduce its risk of unreliability; disinterest of the maker of the statement which may reduce the risk of deliberate untruth; independent dovetailing evidence which may reduce the risk of untruth and innocent mistake and the availability of good testing material concerning the reliability of the witness.[13] The importance of the evidence to the case against the accused is central to the various decisions.[14]
[10] [2012] EWCA Crim 1509 (Hughes LJ).
[11] Riat v The Queen [2012] EWCA Crim 1509 at [5] (Hughes LJ). See also Horncastle v The Queen [2009] EWCA Crim 964; [2010] 2 AC 373 at [17], [23]-[24] (Thomas LJ).
[12] Riat v The Queen [2012] EWCA Crim 1509 at [5]-[8], [17]-[18] and [33] (Hughes LJ).
[13] Riat v The Queen [2012] EWCA Crim 1509 at [6] (Hughes LJ).
[14] Riat v The Queen [2012] EWCA Crim 1509 at [8] (Hughes LJ).
Sections 34KB, 34KC and 34KD are counterbalance provisions to balance the admission of such statements as an exception to the hearsay rule and form part of a “crafted Code intended to ensure that evidence is admitted only when it is fair that it should be”.[15]
[15] Horncastle v The Queen [2009] EWCA Crim 964; [2010] 2 AC 373 at [16] (Thomas LJ).
Section 34KB alters the rule against collateral challenge by allowing collateral material relevant to the reliability or credibility of the witness to be admitted. In Riat, Lord Justice Hughes pointed out that the equivalent provision to s 34KB was critical because it permits the challenging party not only to adduce evidence relevant to credibility which would have been admissible if the witness had given evidence and to put in inconsistent statements, but also, with leave, to adduce evidence which would otherwise simply have been material put in cross-examination as to which answers purely relevant to credit would have been final.[16] The challenger, to that extent, is placed in a better position to counterbalance the absence of cross-examination.[17]
[16] Riat v The Queen [2012] EWCA Crim 1509 at [17] (Hughes LJ)
[17] Horncastle v The Queen [2009] EWCA Crim 964; [2010] 2 AC 373 at [16] (Thomas LJ).
The overriding question is whether the admission of the evidence is compatible with a fair trial which will depend on the facts of the individual case.[18]
[18] Cole v The Queen [2007] EWCA Crim 1924 at [20]-[21] (Lord Phillips CJ).
I turn to consider two South Australian authorities which have addressed

s 34KA.
In Haines,[19] an application was made for the exclusion of a written statement of an eyewitness who was the mother of the accused. A statement was taken from her commencing at about 10:00 pm until about 2:30 am the following morning. The witness statement given at that time did not support self-defence by the accused. Sometime later, the witness swore an affidavit which gave a different account of events. The witness, among other things, told the police that she was very tired, she needed reading glasses, the statement was read to her quickly and she just signed it when she was asked to. The police officer did not tell the witness she was free to go home, ask if she was too tired, or offer to bring in a family member to keep her company. The police officer accepted the witness was tired, distracted, it was difficult to keep her focussed and she had told him she was unwell. The police officer testified that when he was walking the witness out of the interview room, he told her the victim had died and the witness said her daughter had acted in self-defence. The police officer did not record that detail in the witness statement and testified he did not do so because he did not consider it to be relevant.
[19] [2016] SASC 96.
Chief Justice Kourakis concluded that it was apparent from the police officer’s testimony that the witness statement was not a faithful record of words actually used by the witness but was a summary in the police officer’s terms of his understanding of the events she was describing.
His Honour considered a number of findings were relevant to the assessment of the reliability of the witness statement which included that the witness was distracted, unwell, stressed by reason of the isolation from her family in a police station over a long period of time and was likely concerned about arrangements for the care of her grandchildren.

Chief Justice Kourakis observed that under s 34KA of the Act, a statement is admissible without more if the two preconditions, that the witness could have testified as to the contents of the statement and one of the prescribed reasons for the inability to give evidence, other than fear, are made out. Nevertheless, s 34KD confers on the Court a statutory discretion to exclude the statements and also preserves the common law discretions to exclude evidence of any kind.
Chief Justice Kourakis continued to say:[20]
[20] R v Haines [2016] SASC 96 at [39]-[40] (Kourakis CJ).
My initial view was that the statutory discretion conferred by s 34KD is a wide one which encompasses considerations relevant to the common law discretions. However, s 34KD of the Evidence Act mirrors clause 15 of the Criminal Evidence Bill recommended by the English Law Commission Report “Evidence in Criminal Proceedings: Hearsay and Related Topics”. It is apparent from that report that the statutory discretion is designed to prevent the waste of time which was feared might result from the tender of a multitude of written statements of little value. The particular considerations mentioned by s 34KD, waste of time and the value of the evidence, are specific to the admission of statements pursuant to s 34K and s 34KA. However, s 34KD of the Evidence Act preserves the general unfairness discretion and the Christie discretion (prejudicial value exceeds probative value), which are also important. It is the former which is determinate on this application.
Plainly enough, the rendering of admissible statements which at common law are inadmissible as rank hearsay, is a fundamental departure from the common law of evidence. It is also a fundamental departure from the common law principle that an accused should be able to test by cross-examination the evidence of witnesses against him or her in open court. The abrogation of those important common law protections by s 34KA of the Evidence Act is not unqualified but is subject to the discretions conferred and preserved by s 34KD of the Evidence Act. The forensic unfairness resulting from the loss of those protections in all of the circumstances of the particular case must be evaluated. The considerations relevant to that exercise include:
·The value of the evidence.
·The significance of the statement to the prosecution case overall.
·Whether the statement is supported in material respects by other prosecution evidence.
·Whether the statement constitutes a major part of the prosecution case.
·The reliability of the evidence that the statement was made.
·The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken.
·The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement.
·Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify.
(Citations omitted)
Chief Justice Kourakis said that the accused is placed in a position of significant forensic disadvantage by reason of the loss of the procedural right to cross-examine and that must be accorded substantial weight in the application of the general unfairness discretion. The unfairness will be greater the more complex the subject matter of the statement and the more controversial the circumstances in which it was taken.[21]
[21] R v Haines [2016] SASC 96 at [41] (Kourakis CJ).
On the particular facts in Haines, the Chief Justice excluded the evidence. While acknowledging the strong reasons to admit the evidence, being a statement of a witness who directly observed the killing, a number of considerations favoured exclusion including that the statement was obtained in accordance with a strategy intended to maximise the prospects the statement would incriminate the accused, the witness’ family were excluded from the interview, and there was no independent observer or record of the taking of the statement. His Honour noted that care should be taken before admitting a statement which has not been electronically recorded or observed by someone independent of police and it is a different matter to admit into evidence in place of sworn testimony a hearsay statement taken in circumstances of police control. Chief Justice Kourakis also referred to the concerns about the comprehensiveness of the statement and its reliability given the time over which the statement was taken together with the witness’ health and the fact the police officer’s method did not result in a close record of the witness’ own words.
His Honour noted that the contrary affidavits sworn by the witness amounted to retraction of parts of the statement suggesting the accused was not acting in self-defence. Had she been called to give evidence, it is more likely the witness would have given evidence in accordance with her later affidavits and therefore the use of the witness statement put the accused at a significant forensic disadvantage. His Honour also noted that the admission of the witness statement and the affidavits would make the forensic contest at trial a contest of whether the statement made on the night of the incident was more likely to be reliable and truthful than subsequent affidavits. His Honour concluded the forensic unfairness of a trial which would, for all intents and purposes, take place on the papers was too great to countenance and accordingly he excluded the statement.
In Mullen v Director of Public Prosecutions (“Mullen”),[22] the prosecution relied on the statement of a resident of a nursing home in a trial against the appellant, a carer at the nursing home. At trial, the witness was unable to give evidence and the statements were admitted pursuant to s 34KA of the Act.
[22] [2020] SASC 10 (Lovell J).
The appellant appealed his conviction. Justice Lovell described s 34KA of the Act as a fundamental alteration to the rules of evidence which has the potential to cause unfairness.[23] However, his Honour observed that s 34KA is only part of the scheme rendering out of court statements admissible for the truth of what is contained in them. Sections 34KB, 34KC and 34KD of the Act seek to ameliorate the difficulties confronting an accused when an out of court statement is to be tendered for the truth of what it contains. Justice Lovell observed that when considering the interpretation of s 34KA, it is important to have due regard to its statutory context.[24]
[23] Mullen v Director of Public Prosecutions [2020] SASC 10 at [26] (Lovell J).
[24] Mullen v Director of Public Prosecutions [2020] SASC 10 at [27] (Lovell J).
Section 34KB enables an accused to adduce evidence that affects the reliability of the statement and the credibility of the statement maker. Pursuant to s 34KB, an accused can call evidence that counters to some extent the unfairness inherent in s 34KA.[25]
[25] Mullen v Director of Public Prosecutions [2020] SASC 10 at [29] (Lovell J).
Justice Lovell considered the decision of Kourakis CJ in Haines[26] noting that the facts in Haines were unusual and were important in understanding the decision.[27] After considering Kourakis CJ’s reasons and the considerations identified as relevant to the exercise of the discretions, Lovell J stated:[28]
A number of matters require comment. Parliament has declared that statements previously inadmissible at common law are, in certain circumstances, admissible. It has, through s 34KB, s 34KC and s 34KD of the Act, ameliorated, to an extent, the inherent unfairness in an out of court statement being admitted for the truth of its contents. Kourakis CJ, in Haines,[29] did not directly refer to s 34KB and s 34KC of the Act in his ex tempore reasons. It was, on the facts before him, unnecessary for him to do so. His comments, however, about the inability of the jury to determine the question of the credibility of the competing statements should be seen in the context of s 34KB of the Act.
[26] R v Haines [2016] SASC 96 (Kourakis CJ).
[27] R v Haines [2016] SASC 96 at [31] (Kourakis CJ).
[28] Mullen v Director of Public Prosecutions [2020] SASC 10 at [37] (Lovell J).
[29] R v Haines [2016] SASC 96 (Kourakis CJ).
Justice Lovell continued to note that, in many cases, s 34KB of the Act will ameliorate the harshness of the operation of s 34KA. His Honour observed that in the unusual circumstances of Haines, where Mrs Haines had made two statements which were fundamentally inconsistent, which would lead the jury to choose between two fundamentally inconsistent statements, s 34KB would have been of little assistance. However, Lovell J observed that it cannot be the case, and nothing in the comments of Kourakis CJ in Haines suggests otherwise, that the inability to cross-examine would, in itself, be sufficient reason to exercise the discretion to exclude a statement which was admissible under s 34KA.
When considering the discretions retained by s 34KD of the Act, Lovell J said one cannot ignore the parliamentary intention encapsulated in s 34KA, stating:[30]
… Parliament has provided a scheme whereby statements not normally admitted in evidence become, subject to the criteria set out in s 34KA(2) of the Act, admissible. That Parliament was aware of the potential unfairness to an accused can be inferred from the enactment of s 34KB and s 34KC of the Act, which sections ameliorate that potential unfairness.
[30] Mullen v Director of Public Prosecutions [2020] SASC 10 at [40] (Lovell J).
Accordingly, Lovell J concluded the forensic disadvantage in not being able to cross-examine is mitigated by s 34KB to some extent. With the Court’s leave, an accused can adduce evidence of any matter which could have been put to the statement maker in cross-examination as relevant to reliability but which evidence could not have been adduced by the cross-examining party. Justice Lovell observed that this was a section which on its face allowed an accused to call evidence that he or she would not have been able to call had the statement maker given evidence. A collateral issue going to credit may be an example of the width of the section.[31]
[31] Mullen v Director of Public Prosecutions [2020] SASC 10 at [41] (Lovell J).
Subject to the qualification of the relevance of the ameliorating provisions, Lovell J agreed with the analysis of Kourakis CJ as to the factors to be assessed. The extent of the forensic disadvantage caused by the loss of the right to cross-examine must be assessed in the context of the entire statutory scheme.
General unfairness and Christie discretion
In Mullen, Lovell J referred to the content of the general unfairness discretion which enables a court to exclude probative evidence, which is not otherwise tainted by impropriety, illegality or risk of prejudice, where its admission would be unfair in the sense that it would make the trial of the accused an unfair trial.[32] His Honour observed that unfairness which is relevant to the residual unfairness discretion is not unfairness in some general sense but an unfairness that the defendant will not receive a fair trial.[33]
[32] Mullen v Director of Public Prosecutions [2020] SASC 10 at [45]-[46] (Lovell J), citing R v Lobban [2000] SASC 48; (2000) 77 SASR 24 at [39]-[45] (Martin J), and Rozenes v Beljajev (1995) 1 VR 533 at 549 (Brooking, McDonald and Hansen JJ).
[33] Mullen v Director of Public Prosecutions [2020] SASC 10 at [45]-[46] (Lovell J).
In considering the application of the Christie discretion, the prejudice to be considered must be prejudice in addition to or distinct from the detriment to the accused’s interests resulting from the probative force of the evidence.[34] Evidence will be excluded where it would be unfair to an accused to admit evidence when the capacity of the evidence to lead the trier of fact to reason correctly is outweighed by the capacity of the evidence to lead the trier of fact to reason incorrectly to a conclusion of guilt and thus expose the accused to an unacceptable risk of being wrongly convicted.[35]
[34] R v Duke (1979) SASR 46 at 48 (King CJ).
[35] Adams (a pseudonym) v The Queen; Bradley (a pseudonym) v The Queen [2021] SASCA 147 at [43] (Livesey P, Doyle and David JJA), quoting Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403.
Analysis
I am not satisfied that the case for excluding Mr Perkins’ testimony, taking into account the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking into account the probative value of the evidence.
I am not satisfied I should exclude the testimony in the Grant trial in the exercise of the Christie discretion. I am not satisfied the testimony is relevantly more prejudicial than probative. The evidence has potential probative value given Mr Perkins witnessed and heard events leading up to, and including, the fatal attack. The admission of his testimony in the Grant trial is thus capable of rationally affecting the assessment of the probability of the existence of a fact in issue in the proceedings, that is, whether the accused was one of the men in the small dark car in the CCTV footage.[36] I accept the prosecution submissions concerning the lack of relevant prejudice in the Christie sense. The prejudice must be more than prejudice arising out of the probative value of the evidence.
[36] Ford v The King [2023] SASCA 117 at [70] (Livesey P, Doyle and David JJA).
I am not satisfied I should exclude the testimony in the Grant trial in the exercise of the general unfairness discretion.
There is no doubt that the inability to cross-examine Mr Perkins gives rise to forensic disadvantage and the inability to cross-examine may be considered unfair. However, that is the result of the provisions of the legislation which modify the common law means of proof.[37] In addressing the general unfairness discretion the question is whether the admission of Mr Perkins’ testimony in the Grant trial will result in an unacceptable miscarriage of justice. I have concluded it will not.
[37] Mullen v Director of Public Prosecutions [2020] SASC 10 at [88] (Lovell J).
My decision for refusing the application by defence on each of the grounds, that is, under s 34KD, the application of the Christie discretion, and the general unfairness discretion are based on the same materials and considerations to which I now turn.
Potential value of the evidence and potential significance to the prosecution case overall
Mr Perkins’ sworn testimony in the Grant trial has both potential value and significance to the prosecution case overall. Mr Perkins’ testimony is evidence of a direct witness to the incident in which Mr Boyce was killed. Mr Perkins’ evidence concerning the words spoken by the driver of the small vehicle, his accent, and that the car had a faded blue roof can only be adduced through Mr Perkins’ testimony. There are other aspects of Mr Perkins’ evidence, in particular concerning the sound of the muffler on the blue vehicle, which will be of significance in the prosecution’s case as evidence linking the accused to the small dark car seen in the CCTV footage.
Whether the evidence is supported in material respects by other evidence
The prosecution will rely upon other evidence, including the CCTV footage, statements of witnesses, and telephone records as directly or indirectly materially supporting Mr Perkins’ evidence of the chronology of events comprising the incident and the accused’s involvement in those events.
Reliability of Mr Perkins/his testimony and potential forensic disadvantage
At trial the prosecution will seek to tender Mr Perkins’ testimony in the Grant trial. Mr Perkins’ testimony was given under oath in the course of a Supreme Court trial and he was subjected to cross-examination. I accept that the focus of the cross-examiner related to Mr Grant, the accused in that trial, and the forensic landscape included agreed facts. However, I do not consider that of itself sufficiently adversely impacts the reliability of the testimony given by Mr Perkins in the Grant trial or creates sufficient forensic disadvantage to result in an unacceptable risk of miscarriage of justice if the evidence is admitted.
The accounts given by Mr Perkins concerning the events in Hill Street remained, in many material respects, consistent from his first statement in February 2017 to his testimony in 2019. The CCTV footage and evidence of other witnesses concerning the sequence of events and descriptions of the vehicles provide potential material support for Mr Perkins’ testimony concerning the chronology of events and his observations of the two vehicles.
Defence pointed to the statements of two witnesses who referred to a red vehicle as supporting a submission that Mr Perkins’ evidence had little value. All of the evidence will have to be considered in ultimately determining the reliability of Mr Perkins’ observations. The possibility that there may be evidence inconsistent with aspects of Mr Perkins’ testimony, such as the colour of the small vehicle, does not rob the entirety of Mr Perkins’ testimony of any probative value. The same observation follows in relation to the criticisms of the defence concerning the reliability of Mr Perkins’ signed statements. Counsel attacked the reliability of those statements, pointing to the change in the identification of the driver of the small dark car from “Serge the Russian” to the accused. The prosecution do not seek to tender the signed statements. While it would not be possible on the face of the statements and in the absence of cross-examination to determine which identification of the attacker was more reliable, I do not accept defence’s submission that the identification issue would taint all of Mr Perkins’ evidence so as to prevent the admission of the sworn testimony. Further, a trier of fact can determine whether to accept part of the evidence of the witness and reject other parts of that evidence.
Mr Perkins observed events from a location which is known and at a time which is known. Accordingly, issues such as his distance from the events, his line of sight and level of darkness can be the subject of submissions as to what weight ought to be placed on his observations.
While the statements obtained from Mr Perkins were not audio-visually recorded, there was no obligation upon police to do so and I do not consider the absence of a recording of the statements will result in the trial being unfair.
Mr Perkins was not a disinterested witness. However, that fact, the circumstances in which he gave sworn evidence, his prior statements and the availability of information concerning Mr Perkins’ psychological history, drug use, and criminal antecedents provide significant material for the defence to deploy in relation to his reliability and credibility.
While I accept defence submissions concerning the dangers of an “induced” statement, there is no suggestion of any such danger at the time the first statement was taken. The statement taken in February 2017 was taken prior to that of other relevant witnesses when Mr Perkins was in custody and had been since the night of the attack. In relation to the later statements, Mr Perkins’ requests for immunity were refused by the Director of Public Prosecutions, the affidavit sworn by the investigating officer concerning Mr Perkins’ assistance in the Grant trial was sworn some months after the Grant trial and there is no suggestion that there was a connection between that statement and the testimony given by Mr Perkins in the Grant trial. The prosecution has explained the circumstances in which that affidavit was produced, which followed a specific request by the sentencing Judge for the provision of relevant background to assist her in understanding issues raised in the sentencing of Mr Perkins.

Defence contends that the January 2019 statement is unreliable because it was made on the basis it would not be used in evidence in any criminal proceedings against Mr Perkins except arising from falsity in the making of the statement. Defence pointed to the risk that the witness would then be obliged to give evidence consistent with that statement. The majority of the January 2019 statement related to Mr Perkins’ history with Mr Thaller, Mr Grant and the accused. It included an explanation of why Mr Perkins now thought the accused was the attacker and Mr Perkins stated he was putting his life on the line going against a worldwide outlaw motorcycle gang like the Hells Angels. The question of the identity of the two people with Mr Grant was not in issue in the Grant trial. The January 2019 statement did not recant or change the evidence in the February 2017 statement in relation to the sequence of the events which occurred and the details relevant to the appearance and sound of the vehicles or the words spoken by the driver. I therefore do not consider the change in the statement concerning the identity of the driver sufficiently impacts on the reliability of the sworn testimony in the Grant trial concerning the sequence of events and the observations of the vehicles such that the admission of that evidence would render the trial unfair by resulting in an unacceptable risk of a miscarriage of justice.
Defence challenged the reliability of Mr Perkins' statements on the basis of Dr Begg’s diagnosis that Mr Perkins had antisocial personality disorder. As explained above, according to Dr Begg, a person with antisocial personality disorder is more likely to view events and recount events from their own perspective. While a person with antisocial personality disorder will not necessarily lie, they are more likely to favour their personal interest which might result in lies or aggrandisation of the narration of events to support their own interests and benefit. It is not immediately apparent what benefit Mr Perkins would gain by making a statement implicating a man said to be a member of the Finks outlaw motorcycle gang, and then implicating the accused said to be a member of the Hells Angels. It is also not immediately apparent why a diagnosis of antisocial personality disorder would influence the reliability of Mr Perkins’ account of the colour of the vehicle, the sound of its muffler and the words he heard. Nevertheless, I accept that a diagnosis of antisocial personality disorder is a relevant factor which may be proffered by defence as impacting on the reliability of Mr Perkins’ testimony and constituting a relevant consideration in assessing the weight which may be placed on that evidence. Defence has available relevant reports and materials which can be deployed at the trial on this issue.
I consider this is a different case to that of Haines. The particular circumstances in which the statement in Haines was taken, including the health of the witness, the fact the statement was not taken in her words and the failure of the police officer to record her statement concerning self-defence after he told her the victim had died were very different from the circumstances in which sworn testimony was obtained from Mr Perkins in the Grant trial.
For these reasons I determined to refuse the application by defence to exclude the testimony of Mr Perkins set out in the transcript of Mr Perkins' evidence in the Grant trial. I conclude the testimony is admissible pursuant to the provisions of s 34KA of the Act.