R v Singh - [2018] NTSC 10

CITATION:R v Singh [2018] NTSC 10
PARTIES:THE QUEEN
v

SINGH, Harold

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21727851
DELIVERED ON:  31 January 2018
DELIVERED AT:  DARWIN
HEARING DATE:  30 January 2018
JUDGMENT OF:  HILEY J
CATCHWORDS:

EVIDENCE – defence application to tender record of interview without calling the accused– admissibility – hearsay exceptions under s 81 of Evidence (National Uniform Legislation) Act (NT) – exculpatory statements - common law does not support application – cannot tender record of interview through cross-examination of participating police officer
Evidence (National Uniform Legislation) Act s 81(1) & (2)
Criminal Code Act s 211(1) & (2)

Ashley v The Queen [2016] NTCCA 2; 307 FLR 168; Flowers v The Queen [2005] NTCCA 5; 153 A Crim R 110, applied.

Assafiri v Horne [2004] WASCA 40; Barr PL v Narui Gold Coast PL [2009] NSWSC 769; 258 ALR 598; R v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350; R v Parkes [2003] NSWCCA 12; 147 A Crim R 450; R v Crisologo (1997) 99 A Crim R 178; S v The Queen [2002] WASCA 222; 132 A Crim R 326, referred to.
REPRESENTATION:
Counsel:
Crown:N Loudon
Defendant:I Read SC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Defendant:Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Hil1802
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Singh [2018] NTSC 10

No. 21727851
BETWEEN:

THE QUEEN

AND:

HAROLD SINGH

CORAM: HILEY J
EX TEMPORE
REASONS FOR JUDGMENT
(Delivered 31 January 2018)

Harold Singh has been charged with aggravated robbery contrary to s 211(1) & (2) of the Criminal Code. Counsel for the accused sought a ruling as to whether he could cross-examine a police officer who conducted an electronically recorded Record of Interview (EROI) with the accused and tender the EROI through him. Counsel relied on s 81(2) of the Evidence (National Uniform Legislation) Act.
In short, the EROI contains statements by the accused that his counsel says are exculpatory (or “self-serving”). The Crown did not seek and did not intend to tender the EROI or any of its contents. This is so although the EROI contains statements that may fall within the definition of “admission” and would therefore be admissible under s 81(1) if the Crown wished to put them into evidence. Although the EROI could be tendered by the accused in his own case, pursuant to s 66, this could only occur if the accused gives evidence.[1] Counsel contended that this unfairly forces the accused into the witness box.
During oral submissions I expressed my view that unless the Crown puts into evidence some or all of the EROI as admissions under s 81(1), there is no basis for exculpatory statements contained in the EROI to be admitted during the Crown case. Nor can such evidence be introduced in the course of cross-examination of the police officer to whom the self-serving statements were made.
This is because an exculpatory / self-serving statement cannot be tendered by an accused unless it is tendered in the context of admissions that are put into evidence as part of the Crown case. Although such statements are hearsay, they are admissible as a necessary part of the exception against hearsay that relates to admissions.
The views which I expressed are consistent with a long line of authority including Flowers v The Queen[2]. That line of authority also includes decisions of appellate courts in Queensland (eg R v Callaghan[3]) and Western Australia (eg S v The Queen[4] and Assafiri v Horne[5]).
In Flowers Southwood J said, at [54]:
All of these cases support the proposition that in Australia there is no exception … which permits an accused to tender prior consistent statements whether by cross examination of police witnesses or otherwise for the purpose of showing either the accused’s reaction when challenged about his offending by police or consistency in the account which he has given of what occurred.
Although Flowers and those other authorities were common law authorities, counsel was not able to refer me to any other authority to support his contentions in the present case. Indeed if his contentions to the effect that s 81(2) makes such exculpatory statements admissible were sound, there would seem to be no need for resort to s 66(2) and for the decisions concerning that provision such as Ashley, R v Parkes[6] and R v Crisologo[7]. After further consideration counsel conceded that there does not appear to be a sustainable construction argument that s 81 would permit the leading of the EROI in the Crown case.
Counsel for the accused had contended that s 81(2) provides an exception to the hearsay rule, additional to and not necessarily linked to the exception provided for under s 81(1). It is not dependent upon the Crown adducing evidence of an admission under s 81(1).
Counsel contended that because the EROI contains admissions, any other representation of an exculpatory nature can be tendered under s 81(2). For example, counsel submitted that because the accused admitted in the EROI that he was present in the taxi shortly before the robbery, the rest of the EROI is admissible under s 81(2). Indeed when asked whether his submissions were only directed to particular parts of the EROI, counsel contended that the whole of the EROI was admissible under s 81(2). Counsel contended that the representations in the EROI satisfied each of the requirements in s 81(2)(a) & (b).
I disagree with those contentions. During argument I expressed my preliminary views to the effect that s 81(2) is not a standard alone exception to the hearsay rule and would only operate in relation to an admission tendered under s 81(1). I considered that the purpose of s 81(2) is to include a provision that expressly incorporates the common law provisions regarding the admissibility of self-serving statements for the purpose of properly understanding the context and meaning of admissions that the Crown relies upon.
Counsel for the accused referred me to the discussion about s 81(2) in the 11th edition of Uniform Evidence Law by Stephen Odgers[8] (Odgers) from page 412. In my opinion that discussion supports the views that I expressed.
(a)The ALRC stated that it was not proposing “to recommend any changes to the law. …”
(b)Odgers then discusses the decision of Barrett J in Barr PL v Narui Gold Coast PL[9] and the reference in s 81(2)(a) to “shortly before or after” the time of an admission. I take this to be a statutory clarification and extension of the requirements at common law, for example that the exculpatory material had to be contained within the same interview or document as that which contained the relevant admission, or a “spontaneous response” to use the language in Flowers.
(c)Under the heading “Previous representations that are not adverse to the person’s interest” Odgers writes:
Wholly self-serving representations made by a person who is or becomes a party to a proceeding will not be admissible under this provision, since there is no admission … and thus neither s 81(1) nor s 81(2) … can have [sic] no application. However, such representations may be admissible under s 64(3) or s 66(2) if the person / party has been or is to be called to give evidence.[10]
In my opinion, s 81(2) can only operate to render admissible exculpatory statements in an EROI, whether by tender of the EROI or by questioning of the police officer, in circumstances where the other party, namely the Crown, tenders or intends to tender part or all of the EROI pursuant to s 81(1) as admissions.
Section 81(2) is designed to permit that to happen where s 81(1) is utilised, and to specify the circumstances and limits for the admission of such previous representations.
Accordingly I concluded that counsel for the accused cannot cross-examine the police officer who conducted the EROI with the accused and tender the EROI through him.
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[1] Ashley v The Queen [2016] NTCCA 2; 307 FLR 168 (Ashley).

[2] [2005] NTCCA 5; 153 A Crim R 110 at [37] – [42] (Riley J) and [54] – [56] (Southwood J).

[3] [1994] 2 Qd R 300; (1993) 70 A Crim R 350.

[4] [2002] WASCA 222; 132 A Crim R 326.

[5] [2004] WASCA 40.

[6][2003] NSWCCA 12; 147 A Crim R 450.

[7](1997) 99 A Crim R 178.

[8] Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 11^th ed, 2014).

[9] [2009] NSWSC 769; 258 ALR 598.

[10] Odgers, above n 11, 414 [1.3.4850].