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Supreme Court 11 May 2006

Regina v Lodhi

[2006] NSWSC 648

Also reported as (2006) 163 A Crim R 526
Public order & justice offences
CRIMINAL LAW AVAILABILITY OF WITNESS EVIDENCE ADMISSIBLE FOR NON HEARSAY PURPOSE S 136 EVIDENCE ACT LIMITATION ORDER

Citation: Regina v Lodhi [2006] NSWSC 648
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 11 May 2006
Judge(s): Whealy J

Background

The accused faced charges under the Anti-Terrorism provisions of the Criminal Code Act (Cth) 1995. A central issue at trial was his alleged relationship with Willie Brigitte, a person the Crown said had been assisted by the accused and visited by him at residential premises in Lakemba in mid-2003.

Two witnesses, Mr Ahmad and Mr Altaf, gave evidence about a visitor who attended those premises in company with a third person known as "the halal butcher from Lakemba." That visitor told the witnesses he was named Faheem, worked as an architect in the city, and was originally from Sialkot in Punjab, Pakistan. The Crown sought to lead this evidence at trial to support its case that the accused was the visitor in question.

The accused's legal representatives objected to this evidence shortly before the jury was empanelled. Whealy J heard extended argument and ruled on 1 May 2006 that the evidence would be admitted, but only on a limited basis. This judgment sets out the reasons for that ruling.

  • Whether the statements made by the unidentified visitor constituted admissions by the accused under s 81(1) of the Evidence Act 1995 (NSW), given the difficulty of establishing that the accused was the person who made them
  • Whether, if not admissible as admissions, the statements qualified as an exception to the hearsay rule under ss 65(1) and 65(2)(c) of the Evidence Act, on the basis that the maker of the representations was "not available" to give evidence
  • Whether the evidence was alternatively admissible for a non-hearsay purpose, specifically as identification material, under s 60 read with s 136 of the Evidence Act
  • Whether the evidence should be excluded under ss 135 or 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice

Decision

Whealy J declined to admit the evidence as admissions under s 81. His Honour accepted the defence's argument that there was insufficient independent evidence from which it was reasonably open to find, under s 88, that the accused was the person who made the statements. The statements themselves could not be bootstrapped into proof of their own maker.

His Honour also declined to admit the evidence as a hearsay exception under ss 65(1) and 65(2)(c). While accepting that the maker of the representations may well be "not available" within the meaning of the Evidence Act Dictionary (whether that person was the accused or some unknown individual), the difficulty of proving on the balance of probabilities that the accused was the maker presented an insurmountable hurdle under that pathway.

However, Whealy J admitted the evidence for a non-hearsay purpose. The statements, he reasoned, were relevant not because of the truth of what was asserted in them, but because the making of those statements, together with other identifying circumstances, formed part of the identification evidence pointing to who the visitor was. He drew an analogy with physical identifying features such as a tattoo or a distinctive voice: the words spoken were relevant as identification material in their own right, not as assertions of truth.

His Honour acknowledged the distinction was a fine one and noted a contrary view in the English Court of Appeal decision in Regina v Ward, but found it to be a real and workable distinction in the circumstances. He was satisfied that there was no basis under ss 135 or 137 of the Evidence Act to exclude the evidence, subject to one condition: the Crown was not to lead the evidence relating to the name "Faheem." His Honour indicated that careful jury directions would be required to explain the permissible and impermissible uses of the evidence.

Orders Made

  • The evidence of the representations made by the unidentified visitor was admitted, on a limited basis, for a non-hearsay purpose only.
  • The Crown was not permitted to lead the portion of the evidence relating to the name "Faheem."
  • No exclusion under ss 135 or 137 of the Evidence Act was warranted, subject to the above condition.
  • The parties were directed to assist the court in framing appropriate jury directions.

Key Takeaways

  • Statements attributed to an accused cannot be admitted as admissions under s 81 of the Evidence Act where there is insufficient independent evidence to satisfy s 88 that the accused was the maker; the statements themselves cannot be used to prove their own authorship.
  • Under ss 65(1) and 65(2)(c), even where the maker of a representation is "not available" in the broad sense contemplated by the Evidence Act Dictionary, the party tendering the evidence must still establish on the balance of probabilities that the particular person said to have made the representation actually made it.
  • A statement attributed to an unidentified person can be admissible for a non-hearsay purpose where its relevance lies in the act of making the statement as identification material, rather than in the truth of what was asserted. This parallels the use of physical identifying features.
  • Whealy J expressly declined to follow the reasoning in the English Court of Appeal's decision in Regina v Ward, where the court rejected a similar non-hearsay distinction in an identification context, finding the distinction to be real rather than merely theoretical in the circumstances before him.
  • Where evidence of this kind is admitted for a non-hearsay purpose, the Supreme Court's approach contemplates detailed jury directions explaining how the evidence may and may not be used, including the possibility that the words were spoken by someone other than the accused.

Legislation and Cases Referenced

Legislation
- Criminal Code Act (Cth) 1995
- Evidence Act 1995 (NSW): ss 17(2), 59, 60, 65(1), 65(2)(c), 81, 81(1), 88, 135, 136, 137, 142; Dictionary, Part 2, Clause 4

Cases
- 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
- R v Parkes [2003] 147 A Crim R 450

Secondary Sources
- Cross on Evidence (6th Australian Edition)