Tasmania v B (No 2)

[2012] TASSC 39

[2012] TASSC 39

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Tasmania v B (No 2) [2012] TASSC 39

PARTIES:  TASMANIA, State of
  v
  B

FILE NO/S:  233/2012
DELIVERED ON:  22 June 2012
DELIVERED AT:  Burnie
HEARING DATE:  21, 22 June 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Evidence – Admissibility and relevancy – Hearing – In general – Relevant principles – Exceptions to hearsay rule – Prior inconsistent statement – Previous representation by witness of admission by accused – Witness acknowledging making of representation but not its truth.

Evidence Act 2001 (Tas), s60(3).
Lee v R (1998) 195 CLR 594; R v AA (No 1) [2009] NSWSC 1414, distinguished.
Aust Dig Evidence [48]

REPRESENTATION:

Counsel:
             State:  K Brown
             Accused:  S Wright
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Wright Gilmour

Judgment Number:  [2012] TASSC 39
Number of paragraphs:  20

Serial No 39/2012
File No 233/2012

STATE OF TASMANIA v B

RULING DURING TRIAL  BLOW J

(Edited version of oral ruling)  22 June 2012

1. The Crown has sought leave to question one of its witnesses as though cross-examining her pursuant to the Evidence Act 2001, s38(1), in relation to a prior inconsistent statement.

1. The accused has pleaded not guilty to a charge of armed robbery.  The Crown has adduced uncontroversial evidence that a young man robbed the United service station in Burnie at about 1.50am on 19 March 2011 when armed with a knife.  The only substantial issue in the trial is whether the accused was that young man.  The Crown has adduced a quantity of circumstantial evidence.  There is evidence that the accused was in Burnie on the night in question; that the knife was a knife that came from his home; that he, or someone he had spoken to, provided information as to where it had been abandoned when talking to the police on the afternoon of 19 March; and that the robber was a young man of similar height to the accused.  There is also evidence that would suggest that the accused was drunk on that morning, and that the robber was drunk. 

1. The accused's sister has given evidence that she had a conversation with him on the afternoon of 19 March when he said that he was drunk the night before, to such an extent that he did not remember whether or not he was the person who robbed the service station.  That witness has given evidence on the voir dire that on the afternoon of 19 March, after speaking to the accused, she went to a police station, spoke on an intercom device to somebody who worked for Tasmania Police, and told that person that the accused had told her that he did the robbery.  However, on the voir dire, she said that she now does not remember him saying that to her.  The Crown wish to cross-examine the witness in front of the jury and to tender a disc with the recording of her conversation with the police employee, which she acknowledges to be authentic. 

1. There is no doubt that the statement to the effect that the accused said that he had committed the robbery was a prior inconsistent statement, and that this is a situation in which the Court may grant leave pursuant s38(1). The Evidence Act, s38(3), provides:

"The party questioning the witness under this section, with the leave the Court may question the witness about matters relevant only to the witness's credibility."

1. The evidence that the witness has given before the jury is all favourable to the Crown in that it tends to strengthen the Crown case in relation to the identity question.  But, from the point of view of the Crown, it does not strengthen it as much as it would if she said that the accused told her that he committed the robbery. 

1. A somewhat similar, but different, situation was considered by the High Court in Lee v R (1998) 195 CLR 594. In that case, the Crown, at trial, had been unable to adduce from a particular witness evidence that the accused had confessed to him. The Crown led evidence from a police officer to the effect that the witness had represented that the accused confessed to him. That, clearly, was second-hand hearsay, and the High Court held that it was inadmissible. One of the questions in that case was whether the Evidence Act 1995 (NSW), s60, created an exception to the hearsay rule so that, once the representation by the accused as to guilt was admitted for one purpose, the hearsay rule did not apply. But, clearly, for the reasons explained by the High Court, s60 did not apply. In the joint judgment of the five judges who heard that case, at the end of par[29], their Honours made an observation to the effect that the situation would have been different if the witness had said in evidence that the accused had made the confessional statement.

1. But what we have here is not that situation either.  The Crown does not want to lead evidence from a third person that the sister said that the accused said that he committed the crime.  The Crown is not seeking to lead evidence from the sister that the accused told her that he committed the crime.  The Crown is seeking to lead, through the sister, evidence that she once before, out of court, made a "previous representation" when she told a woman that she was speaking to on the police station intercom system that her brother had told her that he had committed the crime.  That is not a situation that was discussed by the High Court in Lee. 

1. The Crown prosecutor referred me to a number of New South Wales cases, including R v Suteski (2002) 56 NSWLR 182 and Tan v R [2008] NSWCCA 332. Those are both decisions of the New South Wales Court of Criminal Appeal. They are both distinguishable because they both relate to evidence of non-confessional conversations, that is evidence of conversations that did not involve confessions or admissions. In Tan it was argued that Lee's case made inadmissible answers in a recording of a police interview relating to conversations between a witness, Mr Lenarti, and the accused, Mr Tan.  But the particular questions and answers relied upon that are identified in the judgment of Tobias JA, with whom the other members of the court agreed, make it clear that this was not a case about confessions or admissions.  Questions and answers 103, 111, 129 and 139 related to the making of arrangements for a drive-by shooting.  Questions and answers 413 and 414 related to a debriefing after the drive-by shooting, and the asking of questions by the accused, who had not attended, to the witness, Mr Lenarti, who had been the driver.  Question and answer 478 related to an assertion by the accused that the victim of the drive-by shooting was going to go to the police in relation to Mr Lenarti.  None of that was confessional material. 

1. I do not think I need to undertake an analysis of a similar sort in relation to Suteski.  It is clear from par[103] of the judgment in that case that it was not a case about admissions or confessional statements, but concerned an account of what the particular witness, Mr Sahari, had seen and heard, and of things said to him, other than utterances amounting to admissions or confessions.

1. The starting point in analysing the purposes for which evidence of the recorded conversation in this case may be used is the Evidence Act, s59, which contains the hearsay rule. Section 59(1) reads:

"Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can be reasonably be supposed that the person intended to assert by the representation."

1. In this case there is evidence of two representations. The first was the suggested representation by the accused that he committed the crime. The second was the representation by his sister that he had said he committed the crime. Section 59 makes evidence that the accused said he had committed the crime inadmissible unless there is some other provision in the Evidence Act that creates a specific exception to that general rule.  Section 81(1) provides that the hearsay rule and the opinion rule do not apply to evidence of an admission.  However s82 creates an exception to that exception.  Insofar as it is relevant it provides:

"Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless —  

(a)it is given by a person who saw, heard or otherwise perceived the admission being made".

1. Section 82(a) would prevent the use of second-hand hearsay evidence in relation to an admission. What we are concerned with here, though, is not the question of whether the sister can give evidence that the accused made an admission to her. Her evidence is that she recalls no such admission. Section 38(1)(c), to which I have referred, enables leave to be granted for the Crown to question the accused's sister as if cross-examining in relation to her prior inconsistent statement, but as a matter relevant to her credibility or lack thereof. The Crown would therefore be entitled to cross-examine her about a previous representation made by her. Her evidence on the voir dire is to the effect that she made a previous representation, but that, to the best of her memory, she cannot say that that representation was true. 

1. Section 59 operates so that evidence that the sister made a previous representation is not admissible to prove the truth of that representation. Evidence of a previous representation made by a person, the sister, is not admissible to prove the existence of a fact that it can reasonably be supposed that that person intended to assert, namely that the accused had confessed to her. Before s60(3) was enacted, s60(1) made the hearsay rule inapplicable in this situation. The hearsay rule did not apply to evidence of a previous representation that was admitted because it was relevant for a purpose other than proof of an asserted fact. The evidence of the sister about her previous representation, if admitted for the purpose of questioning akin to cross-examination about her credibility, would not have been caught by the hearsay rule. That seems to have been the situation that Kirby J considered in R v AA (No 1) [2009] NSWSC 1414, where his Honour observed at par[19] that it was an issue for the jury as to which version of the account of the witness in that case they should accept.

1. However, that case was decided before the amendment of s60 in the New South Wales and Tasmanian legislation. The position now is that s60(3) provides:-

"(3)   However, this section does not apply in a criminal proceeding to evidence of an admission."

1. In my view, the effect of s60(3) is that evidence of the sister that she made a previous representation that the accused confessed, insofar as that evidence is evidence of an admission by the accused, is not admissible as evidence that the accused confessed to the crime. Support for that view can be found in Odgers, Uniform Evidence Law, 9^th ed, 2010, at par1.3.950.  After analysing and explaining the High Court's decision in Lee, the learned author said:

"Section 60(3) maintains this position. However, it also goes further. Even first hand hearsay evidence of an admission, admitted for some non-hearsay use, may not be used to prove the truth of the admission pursuant to s60(1). Such hearsay use of the admission will only be permissible if the requirements of Pt 3.4 are satisfied."

1. The Crown prosecutor submitted that it makes a difference that, in this case, there is a recording of the sister's conversation, which can be tendered as an exhibit, and that that is real evidence that has a different status from evidence from the sister, or anyone else in the witness box, as to her making a previous representation.  She argued that the recording has the same status as evidence from the witness box from the sister as to the accused making a confession to her. I disagree.  In my view, on a proper analysis, the evidence of the recording does not speak for itself.  There needs to be evidence that it is an authentic recording and that the person speaking is the sister.  The proposal is to adduce that evidence from the sister.  And, in my view, if that were done, then her oral evidence and the recording would be evidence from her of her making a previous representation.

1. This is not a situation where the witness would say that the accused made a confession to her, so it is not a situation where s81 operates.  It is not a situation to which s82(a) applies because, although evidence would be given by the person who allegedly saw, heard or otherwise perceived the admission being made, it would not be evidence by the witness that the admission was made.  It is evidence of her previously having made a representation that the admission was made.  In my view this leads to the conclusion that the evidence of the prior inconsistent statement could not amount to admissible evidence of the truth of the suggested confession. 

1. The only value of the evidence therefore is that it could be used to discredit the sister.  That could only weaken the Crown case.  The probative value of the evidence of the prior inconsistent statement is therefore quite unusual.  It is certainly not of strong probative value.  There is an enormous danger of unfair prejudice in that the jury, if it received evidence that the sister had previously said that the accused told her that he had committed the crime, would probably find it very difficult to ignore that evidence when it came to consider the issue of whether the accused was the robber.  It is not a situation where I think the jury would find it easy to put the evidence of the previous representation by the witness out of their minds when considering the issue of who the robber was.  So I think there is a danger of unfair prejudice that far outweighs the probative value of the evidence of the prior inconsistent statement, and it is therefore not appropriate for me to grant leave for the Crown to cross-examine the witness before the jury about her prior inconsistent statement, subject to one point. 

1. There remains the possibility that, if cross-examined on the voir dire by the prosecutor about that prior inconsistent statement, the witness might become willing to give evidence that the accused in fact confessed to her.  I have not yet heard submissions from defence counsel as to whether I should permit such cross-examination on the voir dire. I have been told by the Crown prosecutor that, if the application under s38(1) is refused on every other basis, she would like to cross-examine the witness on the voir dire, with such possible recanting in mind, so I will now invite counsel for the accused to make submissions.

1. [The witness was cross-examined on the voir dire, and was unshaken. His Honour then refused to grant the application for leave under s38(1).]