R v Tangi (No 10)

Case •

[2020] NSWSC 545

•

11 December 2019

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v Tangi (No 10) [2020] NSWSC 545
Hearing dates: 20-21, 25-29 November, 2-6, 9-11 December 2019
Date of orders: 11 December 2019
Decision date: 11 December 2019
Jurisdiction:Common Law
Before: Rothman J
Decision:

Objection to evidence rejected.

Catchwords: CRIME – EVIDENCE – Admissibility of extra curial representations of persons called to give evidence – operation of s 66(3) of Evidence Act 1995 (NSW) discussed – subsection concerned with purpose of maker of representations – representations admitted
Legislation Cited: Evidence Act 1995 (NSW), ss 55, 56, 59, 66, 137, 135
Cases Cited: Farah Constructions v Say Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27
Category:Procedural and other rulings
Parties: Regina (Crown)
Abraham Ryan Tangi (Accused)
Representation:

Counsel:
P Hogan (Crown)
G Wendler (Accused)

  Solicitors:
Director of Public Prosecutors (NSW) (Crown)
Universal Lawyers (Accused)
File Number(s): 2017/242644
Publication restriction: Not to be published until the conclusion of the trial

EX TEMPORE Judgment

  1. HIS HONOUR: The Crown seeks to adduce evidence of representations made by certain witnesses who have been called. For obvious reasons, the witnesses are and were available to give evidence about the alleged asserted fact. The major issue between the parties is the construction of s 66(3) of the Evidence Act 1995 (NSW) (“the Act”).

  2. I do not suggest that each witness gave evidence to precisely the same effect. Some said they did not recall what occurred on 19 June 2017, the alleged date of the assault; some said they did not remember saying anything to Police; there were denials of making any statements to Police; and a denial of attending the Police Station. Statements of three Police Officers [Detective Senior Constable Murdoch of 27 August 2017 (Ex J on the Voir Dire); Detective Sergeant Fokes of 27 September 2017 (Ex H on the Voir Dire); and Senior Constable White of 23 June 2018 (Ex N on the Voir Dire)] purport to provide or record statements or comments by each relevant available witness.

  3. Without over-generalising, it is sufficient to recite that the statements or comments were: firstly, not formal statements of evidence; secondly, not recorded electronically; and, thirdly, made in circumstances where each witness declined or refused to make a statement as to the evidence he could give, other than, in one or two cases, a statement to the effect that he did not assault or was not involved in the assault of the deceased.

  4. If accepted as accurate, which it must be for the present purpose, the evidence is highly probative. Of course, that requires three issues relating to veracity: the accuracy of the particular Police Officer’s account of what was said; the accuracy of what was said by each witness to the Police Officer; and, where the witness has denied that the comments were made, a conclusion that the denial is untrue or inaccurate.

  5. The Crown seeks to rely, for the admissibility of the earlier representations, on the provisions of s 66 of the Act. It is necessary, before dealing with the construction of s 66 of the Act, to outline the structure of the Act, as a whole, and the place s 66 of the Act has in that structure.

  6. The Act renders admissible all material that is relevant, which is material that could, directly or indirectly, rationally affect the assessment of the existence of a fact in issue: ss 55 and 56 of the Act. All relevant evidence is admissible, unless another provision of the Act provides otherwise (an “exception”).

  7. One of the exceptions is the provision relating to hearsay evidence: s 59 of the Act. With that exception, evidence that is otherwise relevant, being a previous representation of a relevant fact, admitted to provide the existence of that fact, is rendered not admissible.

  8. The provisions of s 66 of the Act render inapplicable, in certain circumstances, the exception for hearsay evidence in s 59 of the Act. It is appropriate to recite the terms of s 66 of the Act, which are:

“66    Exception: criminal proceedings if maker available

(1)    This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2)    If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a)    that person, or

(b)    a person who saw, heard or otherwise perceived the representation being made,

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A)    In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:

(a)    the nature of the event concerned, and

(b)    the age and health of the person, and

(c)    the period of time between the occurrence of the asserted fact and the making of the representation.

(3)    If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

(4)    A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.”

  1. As can be seen from s 66(1) of the Act, the section applies to a representation by a person who is available to give evidence in criminal proceedings. The terms of s 66(2) of the Act render admissible a previous representation of, relevantly, a witness, if evidence of the representation is given by the witness or someone who heard the representation, and if the representation by the witness was made when the fact that is asserted (and sought to be admitted) was fresh in the memory of the witness.

  2. No objection is taken on the basis of the requirement that the witness’s representation was fresh in the witness’s mind. The Court independently accepts that, as, at 28 June, 21 July and 25 July 2017, these matters were fresh in the minds of the accuseds who made the representations on those respective dates.

  3. The issue, as earlier stated, relates to the operation of s 66(3) of the Act. That subsection renders s 66(2) of the Act inapplicable. The Crown relies on s 66(2) of the Act and submits that the informal comments represented to Police were not “made for the purpose of indicating the evidence that the [witness] … would be able to give in” proceedings.

  4. Essentially, the Crown submits that the express purpose of each witness was not to indicate the evidence each “would be able to give” in the proceedings. Counsel for the accused relies particularly on the words “would be able to give” and submits that these particular words require only that the representation is one the witness “would be able to give” and submits that these particular words require only that the representation is one the witness “would be able to give”, referring to capacity, not willingness.

  5. The phrase “would be able to give” is in the subjunctive mood and the reference to “able” or “ability” would, ordinarily, refer to capacity, rather than likelihood or willingness. The Crown relies on the reasons for judgment of the Court of Criminal Appeal in R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27.

  6. In Esposito at 449 of NSWLR (33 of 105 A Crim R) Wood CJ at CL recites s 66 of the Act and, at 455.G-456.B of NSWLR (40 of 4 Crim R) said:

“[T]he proper course for the prosecution in a case such as the present is to adduce the evidence of the witness directly through him, that is, so far as his recollection extends; and not to seek to prove some earlier account that he may have given, as hearsay through other witnesses. Whether or not the witness will be allowed to refresh his memory from any prior statement made by him (Evidence Act, s 32); or whether or not the contents of any such prior statement can be placed before the jury, by leave, either through cross-examination of that person, or through another witness (Evidence Act, s 38 and s 108), will depend upon the particular circumstances of the case, and upon the use to which the evidence is sought to be put.”

  1. The Crown, in this case, sought to have each of the witnesses refresh his memory and then sought leave (and, generally, was granted leave) to cross-examine about the disingenuousness of their lack of memory and the events on the date in question. The cross-examination was limited by the Court only to the extent necessary to avoid the impermissible use by the jury of the question, rather than the answer.

  2. Ultimately, the reasoning, on the issue of s 66(3) of the Act, of Wood CJ at CL and Adams J, with both of whom, B.M. James J agreed, was to the effect that the evidence or statement was inadmissible “only because the witness made it expressly clear … that he was making representations for the purpose of disclosing the evidence that he would be able to give” in the proceedings: James J at 478.E of NSWLR; Wood CJ at CL at 450.D; Adams J at 486.B-C.

  3. The Court of Criminal Appeal did not have occasion to consider the use of the phrase “would be able”; the effect of the use of the subjunctive; and the of the term “able”. Nevertheless, comments in obiter by the Court of Criminal Appeal need to be given proper weight: Farah Constructions v Say Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22.

  4. In my view, the subsection should be construed in such a way that its primary focus is the purpose of the witness and the following words are used in a composite sense. Thus, in the case of the previous representation of the witnesses in these proceedings, the purpose of the representation, in their mind, was not to indicate the evidence the witness was able to give or would be able to give. Rather, it was expressly for the opposite purpose and also made for the purpose of assisting the investigation, then under way, and in some cases exculpating himself from any criminal conduct.

  5. I am mindful that electronic interviews have been introduced for suspected persons, which is the usual process for witnesses as well. That process is important for the administration of justice.

  6. Electronic interviews were introduced following the recommendations of the Wood Royal Commission that dealt, amongst other things, with allegations of corruption in the Police Force and, in particular, with the practice described as “verballing”. A “verbal”, in that context, is a reference to a Police Officer (and others) giving false evidence of an admission by an accused by attributing words to the accused that he or she had not uttered.

  7. There are important policy issues that dictate courts should not encourage the capacity to achieve the effect of a “verbal” by indirect means. In other words, the use of unrecorded, unsigned statements of witnesses that inculpate an accused has similar difficulties as “verbals”. In making that comment, it should not be taken as a comparison of the culture in today’s Police Force with the culture that existed in the time of the Royal Commission.

  8. Nevertheless, the legislature has prescribed the conditions for admissibility and the exceptions thereto. It has also prescribed when those exceptions are applicable. In this case, s 66(2) of the Act renders the hearsay exception inapplicable and, on my construction, the provisions of s 66(3) of the Act do not circumscribe or qualify the application of s 66(2) of the Act for these representations.

  9. When one considers the purpose of the comments from the perspective of the maker of those representations, then the “purpose” did not include indicating the evidence that would be able to be given. I draw comfort for that construction from the effect of the alternative.

  10. Given that for s 66 of the Act to operate the representations need to pass the threshold of relevance in ss 55 and 56 of the Act, every relevant comment “would be able to be given in evidence” (subject, of course, to some other exception). Thus, the only construction that would allow s 66(2) of the Act to have any effect is one that focusses on the intent or purpose of the maker of the representation.

  11. In other words, s 66(3) of the Act is inapplicable to these representations and s 66(2) of the Act is applicable. The previous extra-curial representations to which the Police Officers attest are admissible.

  12. The accused raises objection under s 137 and s 135 of the Act. Section 137 of the Act requires a court to refuse to admit evidence adduced by a prosecutor in criminal proceedings, if its probative value is outweighed by the danger of unfair prejudice to the accused. The balancing exercise involves the danger of unfair prejudice and is broader in that regard than actual unfair prejudice.

  13. Further, it is not “prejudice” to the accused the danger of which must be assessed and then balanced, but “unfair prejudice”. Generally, this involves the impermissible use of evidence for a prejudicial purpose. In this case, the prior representations can be used only for the purpose for which they are admitted, namely, the truth of the assertions of what each witness observed.

  14. As already stated, the evidence, if accepted, is highly probative. It is also highly prejudicial, but not in a way that that gives rise to an unfair prejudice. Even if there were some risk or danger of unfair prejudice, it does not come close to outweighing the probative value of the evidence. Further, the Court will give particular directions about how it may be used and the caution that is required, before it is accepted.

  15. The capacity of the Court to refuse to admit other relevant and admissible evidence under s 135 of the Act is discretionary. The balancing exercise, unlike in s 137 of the Act, requires a “substantial outweighing” of the probative value. The evidence is neither, on the one hand, misleading or confusing, nor, on the other hand, will it cause an undue waste of time: s 135(b) and (c) of the Act. Nor is there a danger of such.

  16. For the reasons already stated in relation to s 137 of the Act. I have formed the view that the probative value of the evidence is not outweighed (and, necessarily, not substantially outweighed) by the danger that the evidence might be unfairly prejudicial to the accused.

  17. The Court, for the foregoing reasons, ruled the evidence of the representations to be admissible.

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Decision last updated: 13 May 2020

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Cases Citing This Decision

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Cases Cited

3

Statutory Material Cited

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R v MacBeth [2008] SASC 71
R v MacBeth [2008] SASC 71
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22