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Court of Criminal Appeal 5 November 2003

R v O'Connor

[2003] NSWCCA 335

Theft & propertyPublic order & justice offences
EVIDENCE EXCULPATORY OUT COURT STATEMENT OF ABSENT CO OFFENDER WHETHER ADMISSIBLE

Citation: R v O'Connor [2003] NSWCCA 335
Court: NSW Court of Criminal Appeal
Date: 5 November 2003
Judge(s): Barr J, Greg James J, Howie J

Background

The appellant was convicted in the District Court of robbery in company following a jury trial. The robbery occurred at a liquor shop in Little Bay in September 1999, where two people, a man and a woman, entered and threatened the owner and his daughter. Both witnesses identified the appellant as the woman involved, recognising her voice, body shape, demeanour, clothing, and hair.

The male co-offender, identified as Tarek Makhoul, was charged at the same time but fled the country before trial, leaving the appellant to be tried alone. Makhoul had been in a domestic relationship with the appellant for several years, and the couple had a school-aged child together.

At trial, the appellant did not give evidence. Her case rested on the proposition that both identification witnesses were mistaken. She sought to use statements Makhoul had made to police, in which he claimed the appellant was not present at the robbery and that his companion was an unknown woman he had met on the street. The trial judge rejected that evidence.

  • Whether the trial judge erred in applying s 65(2) of the Evidence Act to assess the admissibility of Makhoul's out-of-court statements, rather than s 65(8), which applies when a defendant seeks to adduce hearsay evidence.
  • Whether, even if s 65(8) applied, the evidence should have been excluded under the general discretion in s 135 of the Evidence Act as unfairly prejudicial.
  • Whether Makhoul's evidence, which emerged at his own separate trial, constituted fresh evidence capable of establishing a miscarriage of justice.
  • Whether the rejection of the hearsay evidence and the unavailability of Makhoul's trial testimony resulted in a miscarriage of justice.

Decision

The Court accepted that the trial judge had erred in applying s 65(2) rather than s 65(8) to the appellant's attempt to adduce Makhoul's statements. Under s 65(8), a defendant may adduce hearsay evidence of a previous representation without needing to satisfy the additional reliability requirements imposed by s 65(2). On this basis, the evidence was arguably prima facie admissible.

However, the Court held that even if the correct subsection had been applied, the trial judge would still have been required to consider whether to exclude the evidence under s 135. Barr J reasoned that out-of-court exculpatory statements made by absent co-offenders carry an inherent risk of fabrication, particularly where the maker and the accused shared a long-term domestic relationship. The inability to cross-examine Makhoul meant the Crown could not test his account, and the probative value of the evidence was likely to be low. In these circumstances, the prejudice to the Crown was capable of outweighing probative value, and exclusion would have been open under s 135.

On the fresh evidence grounds, the Court applied the criteria from Gallagher v The Queen (1986) 160 CLR 392: whether the evidence is apparently credible, and whether, if believed, it might reasonably have led the jury to a different verdict. Barr J found Makhoul's account, that a man who had visited the same shop twice a week for four years with his long-term partner happened on that occasion to be accompanied by an unknown woman he had just met on the street, was not credible. No reasonable jury, in his Honour's view, could have entertained it as possibly true.

The Court also noted that the appellant had not made Makhoul available for cross-examination in the appeal proceedings, and it was unclear whether his evidence would even be available at a retrial. All four grounds of appeal failed, and the appeal was dismissed.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • Under s 65(8) of the Evidence Act, a defendant may adduce hearsay evidence of a previous representation perceived by a witness without satisfying the additional reliability conditions required of the Crown under s 65(2). The trial judge erred in applying the wrong subsection.
  • Notwithstanding that error, the Court of Criminal Appeal confirmed that evidence prima facie admissible under s 65(8) remains subject to exclusion under s 135, where its potential to cause unfair prejudice to the Crown outweighs its probative value.
  • Out-of-court statements by absent co-offenders that exculpate an accused carry a recognised risk of fabrication, particularly where the maker and the accused had a close personal relationship, and the maker cannot be cross-examined.
  • In applying the Gallagher test for fresh evidence, the court found that apparent credibility is a threshold requirement: evidence that is inherently implausible cannot satisfy that test, regardless of how significant it might appear in isolation.
  • No miscarriage of justice arose from the rejection of the hearsay evidence, given both the low probative value of Makhoul's account and the availability of two identification witnesses whose evidence the jury accepted.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 65(1), 65(2), 65(8), 135

Cases:
- Gallagher v The Queen (1986) 160 CLR 392