Singh v The Queen

Case [2019] NTCCA 8

CITATION:Singh v The Queen [2019] NTCCA 8

PARTIES:SINGH, Harold James

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 4 of 2017 (21727851)

DELIVERED:  25 March 2019

HEARING DATES:  9 July 2018

JUDGMENT OF:  Kelly, Blokland and Barr JJ

CATCHWORDS:

APPEAL AGAINST CONVICTION – Crown did not adduce the appellant’s record of interview with police in evidence –record of interview “mixed” containing both inculpatory and exculpatory material but substantially exculpatory – record of interview admissible in the Crown case – record of interview not admissible in defence case – whether Crown has a duty to tender “mixed” records of interview in the Crown case – no duty to tender “mixed” records of interview - failure to tender the record of interview not unfair

Uniform Evidence Act (NT) ss 21, 43, 55, 56, 56(2), 59, 66, 66A, 60, 81, 81(1), 81(2), 102, 103

Adam v The Queen (2001) 207 CLR 297, Allied Interstate (Qld) Pty Ltd v Barnes [1968] HCA 76, 118 CLR 518, Richardson v The Queen [1974] HCA 19, 131 CLR 116, applied

Azzi v R [2013] NSWCCA 249, Mahmood v Western Australia [2008] HCA 1), CLR 397, R v Apostilides [1984] HCA 38, 154 CLR 563, R v Astill (Unreported, NSWCCA, Priestley JA, McInerney and Badgery-Parker JJ, 17 July 1992), R v Evans [1964] VicRp 92, VR 717, R v Familic (Unreported, NSWCCA, Hunt CJ at CL, Badgery-Parker and Smart JJ, 4 November 1994), R v Keevers (Unreported, NSWCCA, 26 July 1994), R v Li [2003] NSWCCA 386, 140 A Crim R 288, R v Pearce (1979) 69 Cr App R 365, R v Reeves (1992) NSWLR 109, R v Rudd [2009] VSCA 213, 23 VR 444, R v Singh [2018] NTSC 10, R v Soma [2003] HCA 13, 212 CLR 299, Spence v Demasi (1988) 48 SASR 536, Whitehorn v The Queen [1983] HCA 42, 152 CLR 657, Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46, 97 CLR 279, referred to

Assafiri v Horne [2004] WASCA 40, Barry v Police [2009] SASC 295, Flowers v The Queen [2005] NTCCA 5, 153 A Crim R 110, Kochnieff [1987] QSC (CCA) 223, 33 A Crim R 1, Middleton v The Queen (1998) 19 WAR 179, R v Callaghan [1993] QCA 419, 2 Qd R 300, R v H, ML [2006] SASC (CCA) 240, 2 Qd R 300, R v Helps [2016] SASCFC 154, 126 SASR 486, R v Higgins (1829) 3 C & P 603, 172 ER 565, Sampson v The Queen [2002] WASCA 222, followed

R v Rymer [2005] NSWCCA 310, 156 A Crim R 84, distinguished

REPRESENTATION:

Counsel:

Appellant:P Boulten SC with A Abayasekara

Respondent:  D Morters

Solicitors:

Appellant:NT Legal Aid…

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Singh v The Queen [2019] NTCCA 8
Case
[2019] NTCCA 8
Decision Date

CaseChat Overview and Summary

The appellant, Mr. Singh, appealed against his conviction. The central issue concerned the Crown's decision not to tender a record of interview conducted with the appellant, which contained both inculpatory and exculpatory material, but was substantially exculpatory. The appeal was heard by Kelly, Blokland, and Barr JJ.

The legal issues before the Court were whether the Crown has a duty to tender "mixed" records of interview in its case, and if so, whether the failure to do so in this instance rendered the trial unfair. The appellant argued that a failure to tender such material constituted a breach of the Crown's duty of fairness, relying on a line of New South Wales Court of Criminal Appeal cases.

The Court determined that there is no general duty on the Crown to tender "mixed" records of interview. The admissibility of such statements is governed by the ordinary rules of evidence, focusing on relevance and the hearsay rule. The Court found that the New South Wales authorities relied upon by the appellant were not definitive on the point, often being obiter dicta or based on a misapplication of evidentiary principles. Specifically, the Court rejected the reasoning in *R v Rymer*, which suggested that section 60 of the Uniform Evidence Act would render exculpatory statements admissible as evidence of their truth simply because they also served the purpose of bolstering the accused's credibility. The Court clarified that section 60 does not permit the admission of otherwise inadmissible hearsay evidence merely because it has a secondary, admissible purpose.

The Court concluded that the failure to tender the record of interview did not render the trial unfair. The admissibility of the interview was a matter for the prosecutor's discretion, guided by the rules of evidence. The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant also relies on the English authority of R v Pearce[45] in which the relevant principles in English law are summarised as follows:[46](1) A statement which contains an admission is always admissible as a declaration against interest and is evidence of the facts admitted. With this exception, a statement made by an accused person is never evidence of the facts in the statement.(2) … A statement that is not an admission is admissible to show the attitude of the accused at the time he made it. This however, is not to be limited to a statement made on first encounter with police. [The judgment goes on to elaborate in ways not presently relevant including adding the principle - also applicable in Australian law - that statements that are not admissions are admissible if made in the same context as an admission.](3) Although in practice most statements are given in evidence even when they are largely self-serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to it being made part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible.” The two underlined portions of the judgment do not represent the law in Australia.(a) Where a mixed statement is adduced in evidence, then the whole statement becomes evidence of the truth of what has been asserted: R v Higgins per Parke J, quoted above (an older English authority); R v Middleton; Callaghan; R v H, ML and others.(b) It would be contrary to basic principle for evidence to be held admissible simply because it shows the attitude of the accused at the time he made the statement. How could that be relevant to an issue in the proceeding? (It might be different – depending on the issues before the jury - if it could be said to cast some light on the attitude of the accused at the time of the alleged offence.) Kourakis J made similar comments in Barry.[47] Under Australian law, the first question when assessing admissibility is relevance to an issue in the proceeding. Evidence that is not relevant in a proceeding (ie evidence which, if accepted, could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding)[48] is inadmissible: UEA s 56(2). (This is not a departure from the common law rule.) The appellant contended that there was a divergence of authorities in Australia and relied on a number of New South Wales Court of Criminal Appeal cases (R v Astill; R v Keevers; R v Familic) for the general proposition that the prosecution has a duty (as part of its duty of fairness) to tender a record of interview in which an accused gives an exculpatory account – or at least a duty to tender a “mixed” statement/interview which contains both admissions and exculpatory material. I am not at all sure that there is such a divergence of authority. These cases are not authority for the general principle espoused by the appellant for a number of reasons.(a) First, these cases all concerned defence appeals on the ground that records of interview by the accused should not have been admitted when tendered by the prosecution. Anything said in the course of them about the prosecution having a duty to tender exculpatory records of interview is obiter. (I am not aware of any New South Wales authority directly on point. R v Rymer is not directly on point and, as explained above, the decision in that case was based on a mis-construction of UEA s 60.)(b) Second, the remarks relied on (discussed below) do not distinguish between questions of admissibility and questions of fairness, no doubt because they were not directed towards considering the admissibility of exculpatory statements by an accused. In context, some of the remarks simply draw attention to the (at least then current) practice of prosecutors in New South Wales of tendering all records of interview with accused.(c) Where the remarks go further and comment on admissibility they contain legal and logical flaws (discussed below).

Evidence

Evidence Before The Court

One of the passages relied on by the appellant is the following from the judgment of Badgery-Parker J in R v Familic:[49]The relevant principle is established in the decisions of this court in Regina v Astill (unreported 17 July 1992) and Regina v Reeves (1992) 29 NSWLR 109 at 114-115. (See also Regina v Keevers (CCA, unreported 26 July 1994). It is that where an accused person replies to a question put by police officers or responds to an invitation to comment on some matter put to him or her, what he or she says is in general admissible in evidence.[50] If what is said amounts to no more than an assertion of the right to silence, it may be admitted but the jury should be immediately directed about the right to silence and that no inference adverse to the accused may be drawn by reason of the exercise of it: Astill (supra, at 8-9). Where what is said is clearly an admission then, subject of course to the question of voluntariness and the possible existence in the particular circumstances of discretionary reasons for exclusion, it is admissible. Where it is clearly a denial of guilt, it is admissible and ordinarily should be given in evidence. If what is said is equivocal, in the sense that it may be understood as an admission or as an acknowledgment of guilt, or as implying a consciousness of guilt, but may on the other hand be understood, particularly in the light of some explanation of it later to be given by the accused, as not being an admission or as not implying a consciousness of guilt, it is a question for the jury to determine its meaning. If the jury finds that by what he or she said (and/or did – cf Astill) the accused was making an admission of guilt or of a fact from which the inference of guilt might be drawn or was manifesting a consciousness of guilt, the evidence has probative value and ordinarily gives rise to no improper prejudice such as should lead to its exclusion. No authority is cited for the underlined statement (that denials of guilt are admissible) and it is contrary to long standing authority and to established legal principle. Such a denial would either be hearsay and not admissible if tendered as evidence of the truth of the denial (UEA s 59); or, if tendered for the non-hearsay purpose of bolstering the accused’s credibility – would fall foul of the rule against bolstering credit with prior consistent statements (and UEA s 102).[51] [See the discussion at [20](1)to [20](5) above.] The passage relied upon continues:A situation which is not dealt with in Astill and in Reeves is where although the meaning of what is said by the accused is unclear and does not amount to an unequivocal denial, it cannot reasonably be understood as importing an admission or as implying an awareness of guilt. In general, the answer must be that such an answer is inadmissible because it is irrelevant, unless it ought in fairness to be given in evidence for the reason which I expressed in Astill: “It has long been common practice to adduce evidence of such conversations and the justification no doubt is that if it were not given, the jury would be left to speculate as to whether the accused had given any account of his actions when first challenged by the police.” Unless the evidence ought be admitted for that reason, the fact that what is said cannot be construed as an admission or as manifesting an awareness of guilt renders it irrelevant and hence inadmissible. It should be excluded, and no question of the judge’s discretion arises.

Decision

Reasons for decision

The central point of all of these authorities is that the admissibility of pre-trial exculpatory statements by an accused is governed by the ordinary rules of evidence. One first asks whether the statement is relevant to an issue in the proceeding; one then applies the general rules of evidence including the rule against hearsay, and the rule against self-corroboration; one then asks whether the statement falls within any of the exceptions to the rule/s.The decision in R v Rymer failed to apply this approach In the New South Wales case R v Rymer[33] the appellant appealed against his convictions on three counts of sexual intercourse with a child under the age of ten years. One of the grounds of appeal was that the trial judge had been in error in ruling that exculpatory statements made by the accused to police would only be admissible in evidence (under UEA s 66) if the accused gave evidence.[34] On appeal, Grove J (with whom Barr and Latham JJ agreed) held that the statements were not admissible under s 66[35] as they were not “fresh in the memory” when made because of the temporal gap between the alleged offences and the denials. Grove J then went on to hold that the exculpatory statements to police were admissible under UEA s 60 because the exculpatory account had “the dual purposes of assertion of the fact of innocence and the credibility of that assertion implicit in the denial of guilt conveyed by the plea”.[36] His Honour said (at [64]):[T]he exculpatory statements were admissible as an exception to the hearsay rule by reason of the dual purposes of the evidence seeking to demonstrate the asserted fact (that the appellant did not commit the sexual assaults alleged) and credibility deriving from his proclamation by plea that he was not guilty. By reason of the dual purposes (s 60) the evidence would not be excluded by the credibility rule (s 103).In coming to this conclusion, Grove J placed reliance on Adam v The Queen[37] in which Gleeson CJ, McHugh, Kirby and Hayne JJ observed:Because, however, the evidence would be relevant both for the purpose of considering the witness’s credibility and the proof of the facts which he intended to assert in the out of court statements, the hearsay rule would not apply (s 60). However (as Grove J noted) this was said in the context of a witness who was in fact called and whose prior inconsistent statement to police was left by the trial judge to the jury to consider as evidence of the truth of its content. (In that case the statement in question was admissible as a prior inconsistent statement.[38] Therefore s 60 applied to allow the prior inconsistent statement to stand as evidence of the truth of the matters asserted in it.) With respect, there is a logical (and legal) flaw in the conclusion by Grove J that UEA s 60 would allow the admission of otherwise inadmissible self-serving statements by an accused for the following reasons.(1)Section 59(1) is the general exclusionary rule relating to hearsay. It provides: “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation” (an “asserted fact”).(2)There can only be two possible forensic purposes for the defence wanting to adduce evidence of an exculpatory account given by the accused. The first is to rely on it as evidence of the truth of the exculpatory account. A statement by the accused to the effect that he did not commit the offence is an asserted fact. It is clearly intended by the maker (the accused) to be an assertion that he did not do what he is accused of. The same applies to other more complicated exculpatory explanations. The purpose of adducing them is to rely on the assertions as evidence of the truth of what they assert. This is plainly a hearsay purpose: it falls within the general exclusion in s 59.(3)The second possible forensic purpose for which the defence may wish to tender an accused’s exculpatory account is to bolster the credit of the accused by establishing that his present denial is consistent with what he said at an earlier time to police. However, under s 102 (NSW s 103), credibility evidence about a witness is not admissible. (This evidence would also be inadmissible at common law under the rule against the admission of prior consistent statements to bolster credit.)(4)Section 60 provides: “The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representations”.(5)Section 60 applies where one of the purposes for which evidence is sought to be adduced is an admissible purpose. It does not permit a party to adduce evidence just because they can identify more than one inadmissible use for the evidence. Yet that is the effect of the decision in R v Rymer.

Ratio Decidendi

Legal Principle Established

The question for determination by the Court is whether the prosecution does have a duty to tender such “mixed” statements in the Crown case. The respondent contends that it does not: that whether or not to do so is a matter for the discretion of the prosecutor.Consideration of authorities relied on by the appellant The appellant relies on the following part of the judgment of Grove J (with whom Barr and Latham JJ agreed) in R v Rymer.[44]Since the abolition of the entitlement of an accused at trial to make an unsworn statement to the jury, it was acknowledged (and confirmed by observation of cases which pass through this Court) that it is a not infrequent occurrence for an accused person, after tender by the Crown of the content of exculpatory material usually in the form now of a video taped interview, to invite the jury through counsel to consider that material as response to the Crown case and a basis for a verdict of not guilty.It would be, to say the least, unsatisfactory for that course to be open to some accused but not to others as a matter of mere happenstance. I am not implying that prosecutors do not behave responsibly but if the tender of such material is done as a matter of unfettered discretion it would be expected that some prosecutors would tender it and others would not.A danger which would need to be guarded against would be that contemplated in Pearce that an accused may bring forward a contrived “hearsay case”.Nevertheless, it is submitted on behalf of the appellant that the Crown should have called the exculpatory evidence as “a rule of fair play essential to the proper administration of justice”. It would certainly lead to unfairness if evidence of this type were tendered or not as a result of arbitrary selection on the part of a prosecutor. I consider that, absent some particular reason for refraining from doing so, such evidence should be put before the Court by the prosecution. A number of comments may be made about these remarks.(a) The remarks are obiter. The case was decided on the basis that the exculpatory statements were admissible under UEA s 60, (presumably at the instance of the defence during cross-examination of the police witness).(b) An observation that it may be “unsatisfactory for that course [placing before the jury a de facto “unsworn statement” in the form of a police interview] to be open to some accused but not to others as a matter of mere happenstance” does not answer the question whether such statements are admissible, and in the case of purely exculpatory statements they would not be.(c) If one were to limit the asserted prosecutorial duty to “mixed” statements, as the appellant does, then whether or not an accused’s denials get before a jury would still depend on “happenstance” (ie whether the exculpatory account happened to contain some admissions). Indeed, even if there is said to be a duty to tender all pre-trial statements by an accused, whether or not the accused can communicate an exculpatory account to the jury without giving sworn evidence will still depend upon whether the accused elected to exercise his right to silence when confronted by police. (The appellant accepts that the prosecution would have no duty to tender a contrived ex post facto denial at the instigation of the accused.)