Regina v Lodhi

[2006] NSWSC 648

Reported Decision: 163 A Crim R 526
199 FLR 342

New South Wales

Supreme Court

CITATION:	Regina v Lodhi [2006] NSWSC 648
JUDGMENT DATE :	11 May 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	I am satisfied that there is no basis under ss 135 or 137 of the Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name "Faheem".
CATCHWORDS:	Criminal law - admissions by accused: s 81 Evidence Act (NSW) 1995 - exception to hearsay rule (s 65(1) and 65(2)(c) Evidence Act) - availability of witness - evidence admissible for non-hearsay purpose - s 136 Evidence Act - Limitation order
LEGISLATION CITED:	Criminal Code Act (Commonwealth) 1995 Evidence Act 1995
CASES CITED:	Cross on Evidence (6th Australian Edition) Regina v Ward, Andrews & Broadley (English Court of Appeal (Criminal Division) 20 December 2000) R v Esposito (1998) 45 NSWLR 442 R v Houghton (1998) 45 NSWLR 426 R v Ambrosoli [2002] 55 NSWLR 603 R v Serratore (1999) 48 NSWLR 101 at 108 R v Parkes [2003] 147 A Crim R 450 at 459
PARTIES:	Regina v Faheem Khalid Lodhi
FILE NUMBER(S):	SC 2005/1094
COUNSEL:	Mr R Maidment SC; Mr G. Bellew - Crown Mr P. Lahey - Accused
SOLICITORS:	DPP (Commonwealth) - Crown Michael Doughty - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

THURSDAY 11 May 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - Application on behalf of the accused to exclude “admissions” made by the accused to Messrs Ahmad and Altaf.

1 HIS HONOUR: The accused is charged with a series of offences under the Anti-Terrorism provisions of the Criminal Code Act (Commonwealth) 1995.

2 There has been a series of extensive pre-trial applications relating, inter alia, to the admissibility of evidence sought to be led at the trial. One of the issues arose very late in the piece, shortly before the jury was empanelled and prior to the Crown opening. This issue related to evidence given on 22 March 2006 by two witnesses during earlier pre-trial applications. The evidence had been given without objection at that time. Mr Boulten SC indicated shortly before empanelment that he now wished to object to the evidence being led at trial. On 1 May 2006, after hearing extended argument, I ruled that I would allow the evidence to be admitted but only on a limited basis. These are my reasons.

3 The circumstances surrounding the evidence may be briefly stated. A significant issue in the trial of the accused is his relationship with one Willie Brigitte. There is evidence to show that between May and October 2003, the accused was in contact with Willie Brigitte in circumstances where, the Crown maintains, there was established a covert or illicit relationship between them. The Crown says, for example, that the accused established a mobile phone service in a false name and that one of the purposes for this was to enable contact to be made with Brigitte. In addition, the Crown case is that the accused may have assisted Willie Brigitte upon his arrival in Australia and that, when Brigitte had obtained accommodation, the accused visited him at those premises in Boorea Avenue Lakemba.

4 It is further the Crown case that a resident at those premises, Mr Altaf, was able to recognise and identify the person he flatted with for a period of time in the middle of 2003. This, “identification” was of Willie Brigitte, although he was known to Altaf by a different name.

5 Mr Altaf had a friend, Rashid Ahmad. Ahmad also visited the premises on occasions and he purported to identify Willie Brigitte from a photo shown to him.

6 In addition to their “identification” of Willie Brigitte, each man gave evidence about visitors who came to the flat in the middle of 2003. On one occasion, two men came to see the person now identified as Willie Brigitte. One of them was known to each of Messrs Ahmad and Altaf. He was described as, the “halal butcher from Lakemba”. The identification of this person showed him to be one Abdul Rakib Hasan. This person was said to have been in contact on a number of occasions in 2003 with Willie Brigitte. He was also known to the accused.

7 The evidence in dispute related to the anticipated evidence at trial of Messrs Ahmad and Altaf concerning the second man who came to visit Willie Brigitte in company with the butcher. Ahmad described him as “clean shaven”. He said that the man told him his name was Faheem; he said he was “in architecture” and “working in the city somewhere”; and that he was from Sialkot in the State of Punjab, close to Lahore.

8 Mr Altaf said he overheard a conversation between the same man and his friend Ahmad, presumably on the same occasion. He said: -

“Yeah, he told Mallick that he is from Pakistan, Sialkot, the city name, and I think he told us that he worked in the city as a architect somewhere. Yeah, that’s all”.

Submissions by counsel

9 Initially, the Crown had sought to press the tender of the evidence now in dispute on the basis that, although the evidence was contrary to the hearsay rule set out in s 59 of the Evidence Act 1995, it was admissible nevertheless, under s 81(1) of the Act. This was on the basis that it constituted an admission by the accused.

10 Mr Boulten SC took issue with the tender of the material on this basis. He argued that it was not an admission for two reasons. First, that it was not reasonably open to the Court to find (in terms of s 88 of the Evidence Act) that the statements had been made by the accused. In this regard, Mr Boulten argued that the statements themselves could not be used for this purpose and there would need to be other evidence from which the Court could find it reasonably open that the statements were made by the accused. Secondly, Mr Boulten argued that the statements were not adverse to the accused’s interest in the proceedings.

11 The Crown at first simply took issue with each of these arguments advanced on behalf of the accused. It maintained that the hearsay statements could, together with other evidence, be material from which the Court might determine that it was reasonably open to find the statements had been made by the accused. Later, however, the Crown advanced a second basis of admissibility for the evidence. This was a submission that the evidence was admissible as an exception to the hearsay rule because of the provisions of ss 65(1) and 65(2)(c) of the Evidence Act. Section 65 applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. The Crown submits that it was the accused who made the previous representation and he is not “available” within the meaning of the Act (s 17(2) of the Evidence Act; and Clause 4 Part 2 of the Dictionary). In those circumstances, s 65(2)(c) creates an exception to the hearsay rule where a representation had been made in circumstances that “make it highly probable that the representation is reliable”.

12 Mr Boulten SC countered these submissions by asserting that the Crown still faced the same hurdle it had faced when it first sought to tender the material as admissions made by the accused. Mr Boulten said that the Crown could still not prove that it was the accused who made the representations. Indeed, he argued the Crown’s case is more difficult under this section because it is no longer a matter of determining whether it is reasonably open to find that it was the accused who made the statements. Rather, the Crown must prove that the representations were made by the accused having regard to the standard of proof in s 142 of the Evidence Act, namely proof on the balance of probabilities (s 142(1)(b).

13 The Crown’s response to this argument here again called in aid the provisions of Clause 4 of Part 2 of the Dictionary in the Evidence Act. Clause 4(1)(e) or (f) may have application according to the Crown. The relevant parts of the Clause are in the following terms: -

“4(1) For the purpose of this Act, a person is taken not to be available to give evidence about a fact if:…
(e) all reasonable steps have been taken by the parties seeking to prove the person is not available to find the person or to secure his or her attendance but without success; or
(f) all reasonable steps have been taken by the parties seeking to prove the person is not available to compel the person to give the evidence but without success”.

14 The Crown argues that whether the person who made the representations was the accused or whether it was some other unknown person, he is in either event “not available”, having regard to the provisions of Clause 4 of Part 2 of the Dictionary. For that reason, s 65 is “triggered” and the provisions of s 65(2)(c) come into play. The Crown then submitted that the representations, occurring as they did during a friendly social encounter, satisfied the test in s 65(2)(c) of the Act

15 In its final submissions, the Crown then referred to the fact that Mr Ahmad had in fact “identified” the accused from a photograph as the person who was in attendance with the halal butcher on the day in question. This evidence had emerged during a preliminary hearing concerning a related issue as to whether the photo identification of the accused and others should be excluded under s 137 and s 138 of the Evidence Act. The Crown submitted that it was possible, and indeed appropriate, for the Court to regard this pre-trial evidence as evidence going to the admissibility of the representations in dispute here. The Crown maintained that this would be so either on the basis of the argument centred on s 81 of the Evidence Act or the argument under s 65(2)(c) of the Act.

16 Mr Boulten SC accepted that the evidence of Mr Ahmad as to identification had been admitted for pre-trial purposes associated with whether the photographic identification should or should not be excluded from the trial. It had not, however, been admitted for pre-trial purposes relating to the present argument. In those circumstances, Mr Boulten objected to the pre-trial tender in relation to the present application and supported his objection by the same arguments he had raised under ss 135 and 137 in the original argument. This rather complicated situation became even more problematic because, during the course of the “identification” pre-trial application, the Crown ultimately announced that it would not seek to tender the photographic identification by Mr Ahmad of the accused at the trial. The Crown, however, persisted with its proposal to tender at trial Mr Ahmad’s identification of Brigitte and Hasan and that evidence was allowed. For that reason, it became unnecessary to determine the exclusion application, at least so far as it related to Ahamd’s identification of the accused.

17 Amidst the maelstrom of these conflicting arguments and counter arguments, it is necessary to mention one further proposition that was debated between the Court and the parties: It was suggested during argument that the proper basis on which the Crown might tender the material in contest was this: it was not sought to prove the truth of the statements said to have been made by the second visitor to Ahmad and Altaf but simply to prove that those statements had been made and made by that visitor. It seemed to me, as I said during the debate, that it was at least arguable that the true basis of the Crown tender was to get into evidence the fact that the statements had been made by the visitor rather than the truth of those statements. I asked the parties to consider whether they would be prepared to agree to the evidence being received on this basis coupled with a limitation order under s 136 of the Evidence Act. (Such an order would have the effect of ensuring that s 60 of the Act did not operate so as to make the hearsay rule inapplicable to the statements that the visitor had made in the presence of the two witnesses). Mr Boulten SC positively objected to this proposition and, it must be said, the Crown while not rejecting it, offered rather lukewarm support, preferring to rely on its two principal arguments.

Resolution of the issues

Is the evidence of Messrs Ahmad and Altaf admissible as an “admission”?

18 An “admission” is a previous representation that is made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding) and is adverse to the person’s interest in the outcome of the proceedings (Evidence Act Dictionary Part 1).

19 The hearsay rule does not apply to evidence of an admission (s 81(1) Evidence Act).

20 The hearsay rule is contained in s 59(1) of the Evidence Act:

“(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.”

21 A previous representation is defined in the Dictionary to mean “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”.

22 The defence argument, in relation to the present matter, it will be recalled, is that it is not reasonably open for the Court to conclude that the alleged admission was made by the accused. Secondly, it cannot be said that the remarks made by the second man were adverse to the accused’s interest in the outcome of the proceeding. Although it was not argued by Mr Boulten SC on his client’s behalf, it seems to me that the first point may have a degree of application to the second limb of the argument. By this I mean that if it is not reasonable to find that the admission was made by the accused, can it in any event be said that the statements were in the sense contemplated by the section be “adverse” to the accused’s interest in the outcome to the proceeding? The reason why the issue arises as to whether it is reasonably open to conclude that the admission was made by the accused is because of the provisions of s 88 of the Evidence Act. This is in the following terms:

“88. For the purposes of determining whether evidence of an admission is admissible the Court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission”.

23 In Cross on Evidence (6th Australian Edition), the learned author makes the point that this section “relaxes the standard of proof”. The further point is made, however, namely that the “finding” that a person made an admission where it is reasonably open to do so is not a finding that is made for all purposes. Rather it is only for “the purpose of determining whether evidence of an admission is admissible”. If it is admitted, the question for the tribunal of fact will remain: was it made? If it was not made, it will be disregarded (para 35640).

24 The critical question here is whether the representations alleged to have been made by the second man in the premises at Lakemba may themselves be relied upon so as to lead to a finding (“reasonably open to find”) that the statements were made by the accused. After all, the Crown argued, the accused’s name was Faheem; he was at that time an architect working in the city; and he came from the City of Sialkot near Lahore.

25 The argument presented by the Crown however relied first upon other material apart from the representations themselves. This is evidence that the butcher from Lakemba and the accused were known to each other; that the butcher was in telephone contact (as was the accused) with Willie Brigitte on a number of occasions; and that the accused and Willie Brigitte were at other times in telephone contact with a “mutual acquaintance” in Pakistan.

26 In my view, this body of evidence, taken by itself, could not go so far as to lead to a conclusion that it is reasonably open to find it was the accused who was present in the Lakemba house and that it was he who had made the representations. The Crown did not argue to the contrary.

27 The remaining critical body of evidence is that contained in the representations themselves and in their truth, if they are to be admitted as exceptions to the hearsay rule.

28 Initially, no authority was cited by either side in relation to this point. Free from authority, it seems plain to me that the representations cannot be used for the purposes of making a finding that it was the accused who may have made the admissions constituted by the representations. There are essentially two reasons for this. First, it would be entirely circular to make use of the statements by the second man for this purpose. If there be no evidence beyond the representations themselves from which it might reasonably be open to find the statements were made by the accused, the conclusion they were or might have been made by him can only be reached by accepting the truth of the statements and by proceeding on the assumption that they were made by him. For example, if a person not identified in proceedings against John Smith had said to another “I am John Smith”, that without more would not be an admission that the person was John Smith unless one assumed the truth of the statement and, in addition, assumed that it was the John Smith on trial.

29 Moreover, by accepting the truth of the statements and making the relevant assumption in the present proceedings, it would be quite unnecessary to place reliance on the representations themselves to prove it was the accused who was at the Boorea Avenue premises. As a matter of logic, the accused’s presence at the house in Lakemba will have already been accepted before turning to the representations themselves to see whether they can establish that fact relevant to a fact in issue.

30 Secondly, assuming, as I do, that the statements made by the second man were consistent with the background and occupation of the accused, they do not prove of themselves that it he who made the statements. It would still be necessary for the tribunal of fact to draw inferences in relation to either the statements or the truth of the statements and to place those inferences along side other known evidence before making a deduction or drawing an inference that it was or was not the accused who was present in the house.

31 Later in the argument, Mr Lange, junior counsel for the accused, properly and fairly, drew my attention to a decision of the English Court of Appeal (Criminal Division) given on 20 December 2000. The decision did not favour the defence argument. The case is that of Regina v Ward, Andrews and Broadley. In the trial, a point had been taken as to the admissibility of certain police evidence on the basis that it was hearsay. On three occasions in 1999, when stopped by police, the occupants in a certain motor vehicles had been asked to identify themselves. A passenger in those cars on the three occasions gave his name as “Michael Kevin Ward”, gave his date of birth and gave his address. The date of birth and the address were identical with those of the appellant Ward. The police officer who could provide the evidence of these conversations could not however independently identify the appellant Ward as a passenger in the motor car on the three occasions. The argument before the Court of Appeal in its Criminal Division was that the evidence of the conversations was hearsay and thus inadmissible. Lord Justice Waller with (whom Mr Justice Douglas Brown and his Honour Judge Stephens QC agreed) said at paras 37-40: -

“37. Prime facie thus it would appear that the police officer’s evidence was hearsay. However, it is an exception to the hearsay rule that any statement, wholly or partly adverse to the defendant’s interests, may be given in evidence. The matter is governed by s 76 of The Police and Criminal Evidence Act 1984 but was also the position at common law.

38. There is, as Mr Butt accepted on behalf of the Crown, an obvious circularity in the argument that in the instant case an admission was being relied on because it is the very evidence which might be infringing the hearsay rule which is being relied on to establish the admission. It is, we have to say, somewhat puzzling that there appears to be no authority dealing directly with this point, which, it would seem likely, has arisen on numerous occasions.
39. It is an unattractive proposition that where someone identifies himself as compellingly as was done in this case by the appellant Ward, that he can object to that evidence being put before the jury at all and then not give evidence so as to expose himself to cross-examination in relation to the question whether he was present in that motor car on the particular day. Equally, the application of the hearsay rule and the dangers from which it protects defendants must at all times be borne in mind.
40. We are of the view that the answer to the conundrum lies in the quality of the identification evidence which is being given. Thus, if as in this case, a man is giving his full name, is giving a date of birth which is the date of birth of the person with that full name, and is giving an address which is the address of the person with that full name, the evidence is strong to establish an admission. If, in addition, as in the case of the evidence relating to the date 9 June 1999 there is evidence which supports part-ownership of the motor car in the appellant Ward, that gives further support to such evidence.”

32 With every respect to the English Court of Appeal, I do not think that the reasoning in the case can be correct or that it should be followed. Indeed, the reasoning highlights the circularity of the use sought to be made of the evidence. To say that the appellant Ward had “identified himself compellingly” is to beg the question entirely. Nor do I think that the evidence can be said to be “strong to establish the admission” merely because the statements reflect the date of birth of the accused and his address. Again, this assumes not only that the person who made the statements was the accused, it also assumes that the person who made the statements was not fabricating the information conveyed so as to protect himself and implicate an otherwise innocent person. I agree (as I will discuss later) that evidence of this kind may have a utility as tending towards the identification of person who made the statements but it cannot be assumed for the purposes of deciding whether it is an admission by the accused that the statements were made by the accused merely because they reflect some personal characteristics he or she may have possessed. Therein lies the circularity. Of course, in the English decision there was in addition an extra feature, namely the appellant’s part-ownership of one of the cars. But as to the logic itself, I regret to say that I remain unpersuaded.

33 Subject to the fate of the later argument that Mr Ahmad had in fact identified the person present at the Lakemba premises as the accused based on a photograph he had been shown, I consider that the Crown has not otherwise established that the representations were made by the accused so as to make them admissible as admissions. Putting the matter more precisely, I am unable to conclude that it is reasonably open to find that it was the accused who made the admissions. In reaching that conclusion, I put to one side the representations themselves for the reasons I have stated. Whether the photographic “identification” is sufficient to alter the situation is a matter I will leave for further consideration after I have determined the arguments based on s 65(2)(c) of the Evidence Act.

34 The findings I have made make it strictly speaking unnecessary to consider whether, assuming it were open to find they were made by the accused, the representations may be said to be “adverse to the person’s interest in the outcome of the proceeding”. This definition has however been given a wide interpretation by the New South Wales Court of Criminal Appeal. It can, for example, include a lie told by an accused if it is relied upon by the Crown at trial R v Esposito (1998) 45 NSWLR 442; or an exculpatory statement R v Houghton (1998) 45 NSWLR 426. Here, where the issue is whether the accused was present at the Lakemba premises on the relevant date, it seems to me that the representations may properly be described as “adverse” in the sense that the expression appears in the Dictionary to the Evidence Act.

Is the evidence of Messrs Ahmad and Altaf admissible as a consequence of ss 65(1) and 65(2)(c) of the Evidence Act?

35 Section 65, as I have earlier recited, applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

36 An asserted fact is defined in s 59 of the Evidence Act. I have earlier set out the provisions of s 59 at para 20 in this decision. A previous representation about an asserted fact is not confined to the alleged crime itself (R v Ambrosoli [2002] 55 NSWLR 603 at 614; R v Serratore (1999) 48 NSWLR 101 at 108).

37 Section 65(2)(c) provides that the hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was made in circumstances that it make it highly probable that the representation is reliable.

38 I have earlier set out the provisions of Clause 4 Part 2 of the Dictionary and in particular sub-paragraphs (e) and (f). I have also pointed to s 17(2) of the Evidence Act which is relied upon for the proposition that the accused himself is not “available” within the meaning of s 65(1) of the Act.

39 The learned author of Cross on Evidence (6th Australian Edition) makes it clear that s 65(2)(c) was not recommended by the ALRC or the NSWLRC. In so far as it makes reliability an avenue of admissibility, it departs from classical evidence theory although the departure is sanctioned in some High Court statements and also by the Supreme Court of Canada. The relationship between “high probability” and the conventional criminal and civil standards (ss 140 and 141) is unclear (para 35500).

40 The precise way in which s 65(2)(c) of the Act is to operate has been clarified by the New South Wales Court of Criminal Appeal. The circumstances that are to be examined to determine the high probability that a particular representation is reliable are the circumstances of the making of the representation. The focus remains the reliability of the representation, not (directly) the reliability of the asserted fact. Evidence of events other than those of the making of the previous representation may however throw light upon the circumstances of the making of that representation and its reliability as affected thereby. (R v Ambrosoli (at 615). At page 34 Mason P (with whom Hulme and Simpson JJ agreed) said: -

“It would therefore appear that R v Mankotia (Sperling J 27 July 1998 unreported); Conway v The Queen (2000) 98 FCR 204 at 244; and R v Williams (2000) 119 A Crim 490 at 503-505 are at one in: -

· focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and

· excluding evidence tending only to prove the asserted fact.

In my view this is the correct approach to s 65(2) to the extent that R v Dean and R v Lock decide otherwise they should not be followed.”

41 Mason P allowed however that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issues they have no bearing on the issues presented by s 65(2) (see para 36 at page 616).

42 Section 67 of the Evidence Act requires that notice be given (“reasonable notice in writing”) where reliance is placed on s 65(2) of the Act. Notice in fact was not given until 28 April 2006 but no objection in this regard has been taken on behalf of the accused.

43 There is little doubt that, if it were the accused who made the representations at the Lakemba household, he is not available in the Crown case to give evidence about the asserted facts. (R v Parkes [2003] 147 A Crim R 450 at 459). But the real question is – has it been shown that it was the accused who made the previous representations? There is no doubt, of course, that both Mr Ahmad and Mr Altaf heard or otherwise perceived the representations being made.

44 In my opinion, subject once again to the issue of the photographic identification by Ahmad of the accused, the Crown has not established that it was the accused who made the representations.

45 First, there is the general evidence which I have earlier identified. This of course shows there was an association between the accused, the butcher from Lakemba and Willie Brigitte. But it says little as to whether the accused was the person in the Lakemba premises on the day in question. As to the statements themselves, they cannot in my view be used for the purpose of demonstrating that it was the accused who made the representations. This follows from the analysis I have made in relation to the previous argument based on ss 81 and 88 of the Evidence Act.

46 Once again, if the assumption be made that the representations must have been made by the accused, there would be no need to consider the circumstances of their making so as to evaluate reliability. The issue is – was the accused in the Lakemba house on the relevant day? If one assumes that it must have been he who made the statements based on the nature of what was said, why would there be any need to reflect upon what was said to prove his presence there?

47 The Crown has argued that the representations were made either by the accused or by some unknown person. The Crown’s real position of course, is that they were made by the accused. But if it be allowed that they were made by a person other than the accused, how could it be said, assuming the identity of that person is unknown, that the representations were made in circumstances that make it “highly probable” that the representations were reliable? In my opinion, unless it can be shown that it was the accused who made the representations, s 65(2)(c) will not be satisfied.

48 This leads me directly to the point involving the photographic identification. Mr Boulten had objected strenuously to this material being received on the basis that the circumstances required that the photographic identification of the accused be excluded under either ss 137 or 138 of the Evidence Act. Considerations of the fairness and propriety of those submissions were undoubtedly a factor in the Crown’s decision to announce that it would not seek to lead evidence of the photographic identification of the accused at trial. That position has not altered.

49 Is it appropriate, in those circumstances, to allow the photographic identification evidence to be admitted for the purposes of the present pre-trial application where the statements are sought to be led either under on s 81 or s 65(2)(c) of the Act? In my view, the answer to that question must be that it is not at all appropriate to do so. This is so for two reasons. First, the concept of allowing the evidence for a pre-trial purpose but not at trial strikes me as one that is generally inappropriate. It is certainly inappropriate in the present circumstances. Secondly, the admission of the evidence under s 65(2)(c) in circumstances where there is to be no evidence of the photographic identification at trial will leave the tribunal of fact in a position where, in my view, it will be unable to conclude that it was the accused who made the representations. This is so unless the tribunal of fact can rely on the truth of the representations themselves. Again, there is a degree of circularity involved in this process, which, to my mind, is impermissible.

50 The Crown, having fairly and properly determined that it will not lead the photographic identification of the accused at trial, should not be permitted to rely upon that same identification for the purposes of attempting to demonstrate at pre-trial that it was the accused who made these representations.

A third basis of admissibility

51 Although I have concluded that evidence of the representations should not be admitted as an exception to the hearsay rule, I have nevertheless come to a conclusion that the statements may be tendered in evidence before the jury as evidence of the fact that the statements were made and made by the person who was present in the Lakemba premises and accompanying the visitor described as the butcher from Lakemba. The one hesitation I have had in coming to this conclusion relates to the evidence of the representation by which the second visitor described himself as “Faheem”. The Crown, however, indicated during argument that it would not lead this aspect of the evidence from either Mr Ahmad or Mr Altaf.

52 The remaining statements appear to me to be statements that may be properly admitted as material relevant to the possible identification of the second visitor. The reasoning is simple: it is perhaps unlikely, unless the second visitor were pretending to be someone else or otherwise fabricating his statements, that the type of detail about his occupation and background would be known to any one other than the accused himself. This, of course, is no more than an inference that can be drawn from the making of the statements. It is by no means conclusive but it is a possible aid to identification based on the fact the statements were made by the second visitor. It is the making of the statements, not their truth that is relevant for this purpose. It may well be, for example, that when consideration is given to the whole of the evidence, including the making of the statements, the jury will find itself unable to draw the conclusion that the second visitor was in fact the accused. There is, for example, his physical appearance, which differs from that of the accused in that the visitor was clean-shaven. Moreover, it is not necessarily an unreasonable hypothesis that in a city of the size of Sydney there may be more than one person possessing the characteristics recorded by the visitor’s statements.

53 But I do not see that the fact that the statements were made by the second person that he was an architect, worked in the city; that he came from Sialkot in Pakistan cannot be used as evidence relevant to the identification of that person. To my mind, it is, as I have said, the statements themselves that are relevant in this way not the truth of those statements. If, after due consideration and the giving of appropriate directions, the jury were to reach a conclusion that, based on the whole of the evidence, it was the accused who was present in the Lakemba premises on the relevant day then it may well be that the finding will carry with it the notion that what was said by the person will have turned out to be truth. But the identification will have occurred not because of a reliance on the truth of the statements but because of reliance on the general body of identification evidence including the making of the statements themselves and that they were made by the person who was the second visitor. The distinction is a fine one, perhaps, but in my view it is a real distinction.

54 In Regina v Ward (at para 36) Lord Justice Waller was not persuaded that this distinction should be recognised. His Lordship said:

“Mr Butt sought to submit that this evidence was being put in by the prosecution to establish that the statement was made, but not the truth of the statement. That seems to us not a possible interpretation of the position. The evidence was clearly being put in to establish that it was the appellant Ward in the motor car at the relevant moment in time.”

55 I have no doubt the evidence here is sought to be “put in” to establish that it was the accused who was present in the Lakemba house on the day in question. But, with all respect, the path of reasoning does not travel from the truth of the statements to the conclusion suggested by the Crown. It is the making of the statements by the visitor that moves the inferential process forward or at least may tend to do so. This is because the making of the statements – the words that were spoken – have a possible relevance as identification material, in the same or at least a similar way that a physical feature (such as a tattoo, distinctive voice or unusual language) may be used for this purpose. It is also necessary to say that the jury will need to be told how they may use this evidence and how they may not. The possibility that the words were said by a person other than the accused will need to be pointed out to the jury and considered by them before coming to a conclusion. Once again, I will expect considerable assistance from the parties as to the framing of a proper direction.

56 I am also satisfied that there is no basis under ss 135 or 137 of the Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name “Faheem”.

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