Citation: Regina v Suteski [No 4] [2002] NSWSC 218
Court: Supreme Court of New South Wales (Criminal Division)
Date: 12 March 2002
Judge(s): Kirby J
Background
The accused was charged with the murder of her workplace superior, who died in December 1999 after being stabbed. The Crown alleged she had arranged the assault to conceal a fraud she was committing against her employer, and had recruited an alleged accomplice (referred to throughout as Witness B) to organise the attack on her behalf.
Witness B had already pleaded guilty to procuring the assault and was serving a ten-year sentence. When called to give evidence at the murder trial, he refused outright, first at committal and then again on the voir dire, declining even to take the oath. Counsel appearing for Witness B stated in open court that his refusal was "for reasons unconnected with this case."
The Crown applied to tender Witness B's electronically recorded interview with police (an ERISP) as an alternative to live testimony. This judgment deals with whether that interview was admissible under the hearsay exception in s 65 of the Evidence Act 1995, and if so, in what form.
Legal Issues
- Whether Witness B's refusal to testify rendered him "unavailable to give evidence" within the meaning of s 4(1)(f) of the Evidence Act 1995
- Whether the ERISP fell within the hearsay exception in s 65(2), particularly whether the statements in it were made against Witness B's interests at the time they were made
- Whether the discretion to exclude evidence under s 137 of the Act (where prejudicial effect to the accused outweighs probative value) should be exercised to exclude all or part of the interview
- Whether the Crown's failure to give the required notice under s 67(1) of its intention to adduce hearsay evidence was a bar to admission, or could be cured by a direction under s 67(4)
Decision
Unavailability. Kirby J accepted, with the concurrence of defence counsel, that all reasonable steps had been taken to compel Witness B to give evidence. The contempt sanction was available but unlikely to change his position. The court was satisfied that Witness B was "unavailable" within s 4(1)(f) of the Act.
The s 65(2) hearsay exception. Because Witness B was unavailable, the Crown sought admission of the ERISP under s 65(2)(c), which applies to representations that were against the interests of the maker when made. The court held that this required an objective assessment at the time the statement was made, not with the benefit of hindsight. Statements in the interview that were self-serving or exculpatory (such as denials of allegations) did not qualify. Only those portions of the interview that were, at the time, objectively against Witness B's interests could be admitted under this pathway.
The first-hand hearsay limitation. Section 65(2) permits only first-hand hearsay. Passages where Witness B recounted what others had told him were inadmissible if the only purpose was to prove the facts those other persons had asserted. Those portions were to be excised.
Section 137 discretion. The court considered whether the remaining admissible portions should nonetheless be excluded because their probative value was outweighed by the danger of unfair prejudice to the accused. The court's reasoning on this question is set out in the body of the judgment but is not fully reproduced in the available text. The court's ultimate orders directed the parties to excise specific questions from the interview before it was tendered.
Notice under s 67. The Crown had not given the written notice required by s 67(1) before seeking to adduce the hearsay evidence. The situation arose unexpectedly when Witness B refused to be sworn. The court noted that neither party had initially raised the issue. Applying the s 192(2) factors (including the short duration of the video, its importance, the absence of any argued prejudice from lack of notice, and the unexpected circumstances), Kirby J granted leave under s 192(1) and gave a direction under s 67(4) that s 65(2) should apply despite the absence of formal notice. Defence counsel did not oppose this course.
Orders Made
The parties were directed to examine the video recording and its accompanying transcript and to isolate and exclude the following material before tender:
- Passages that were not, objectively, against Witness B's interests when made (including his denials of allegations put to him by police)
- Passages recording matters that Witness B could only have known through conversations with others (such as references to another witness having been contacted by the accused)
- Passages where Witness B recounted conversations with third parties, where the only relevance of those conversations was to prove the facts asserted in them (engaging the rule against second-hand hearsay)
- Questions 282 to 286, question 394, and any repetition of the same question, were to be excluded entirely
Key Takeaways
- A witness who is present and competent but who persistently refuses to testify can nonetheless be "unavailable to give evidence" under s 4(1)(f) of the Evidence Act 1995, provided all reasonable steps to compel the evidence have been taken without success.
- Under s 65(2)(c), the "against interests" requirement is assessed objectively at the time the representation was made. Statements that were self-serving or neutral at the time of making do not qualify simply because the maker later refuses to give evidence.
- Section 65(2) admits only first-hand hearsay. Where a witness's recorded interview contains accounts of what third parties told them, those passages remain inadmissible if their only relevance is to prove those third-party assertions.
- Failure to give the notice required by s 67(1) is not automatically fatal to admission of hearsay under s 65(2). The court may grant leave under s 192(1) and issue a direction under s 67(4), having regard to the factors in s 192(2), including the unexpected circumstances that made prior notice impractical.
- In applying the s 137 exclusionary discretion, the court weighs the probative value of the admissible portions of the tendered material against the risk of unfair prejudice to the accused, and may admit part of a recorded interview while directing that other parts be excised.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW): ss 4(1), 65, 67, 137, 192
- Crimes Act 1900 (NSW)
Cases
- R v Souleyman (unreported, Smart J, 23 May 1996)
- Lee v The Queen (1998) 195 CLR 594
- R v Blick [2000] NSWCCA 61
- R v Lisoff [1999] NSWCCA 364
- R v Serratore (1999) 48 NSWLR 101