Citation: R v KJ & R v Jayden Hunter [2009] NSWDC 237
Court: District Court of New South Wales
Date: 10 September 2009
Judge(s): Berman SC DCJ
Background
Two accused faced criminal proceedings in the District Court. The Crown called a witness, Mr Kennedy, who had previously been interviewed by police in an electronically recorded interview (known as an ERISP). During that interview, Kennedy had told police that one of the accused, KJ, had made admissions to him.
When Kennedy gave evidence on the voir dire (a preliminary hearing to determine admissibility of evidence, conducted in the jury's absence), he claimed to have no memory of many relevant matters, including the accused and the premises where the relevant events occurred. This rendered him an unfavourable witness, opening the door to cross-examination on his prior inconsistent statements under section 38 of the Evidence Act 1995.
The Crown sought to play to the jury that portion of the ERISP in which Kennedy recounted KJ's alleged admissions. Both defence counsel opposed this, and the matter was determined as a discrete admissibility question.
Legal Issues
- Whether the Crown could tender, via the ERISP recording, statements made by Kennedy to police in which he reported admissions made to him by KJ
- Whether the electronic recording of the witness's account to police distinguished the case from the High Court's ruling in Lee v The Queen (1998) 195 CLR 594
- Whether playing the relevant portion of the ERISP would place second-hand hearsay before the jury
Decision
The court accepted that there is a genuine evidentiary distinction between a written police statement and a video-recorded ERISP. Where a witness's account is electronically recorded, playing that recording to the jury eliminates the need to call an intermediary (such as the police officer) to prove what the witness said. That gap between Lee and the later Court of Criminal Appeal decisions in Suteski and Tan was acknowledged.
However, the court found that this distinction did not resolve the admissibility question in the Crown's favour. The more critical distinction in Suteski and Tan was that the accused's utterances in those cases were admitted for a non-hearsay purpose, not to prove the truth of what was asserted. In the present case, the Crown was plainly seeking to use KJ's alleged admissions to establish their truth, making those statements hearsay at the point KJ made them and second-hand hearsay when Kennedy repeated them to police.
The court drew support from passages in both Suteski and Tan, where the Court of Criminal Appeal had signalled that repetition of another person's factual assertions would constitute second-hand hearsay where the only relevance lay in the facts asserted. His Honour concluded that the material in the ERISP was "confessional material of the nature of that which was rejected in Lee."
Accordingly, the Crown's application to play that portion of the ERISP was refused. The court was satisfied that doing so would impermissibly place second-hand hearsay before the jury.
Orders Made
- The Crown application to play the portion of the ERISP containing alleged admissions by KJ was refused.
Key Takeaways
- The District Court confirmed that the format of a prior statement (written versus electronically recorded) does not, by itself, determine admissibility when the underlying content constitutes second-hand hearsay.
- A valid point of distinction exists between Lee v The Queen and the Court of Criminal Appeal decisions in Suteski and Tan: electronic recording removes the need for an intermediary to prove the witness's words, eliminating one layer of the hearsay problem.
- The more decisive distinction in Suteski and Tan was that the accused's utterances in those cases were tendered for a non-hearsay purpose. Where, as here, the Crown relies on an accused's alleged admission to prove its truth, second-hand hearsay remains an obstacle even when the witness's account was captured on video.
- Amendments to section 60 of the Evidence Act 1995, introduced in response to Lee, were common ground between the parties as not affecting the outcome in this case.
- Confessional material repeated by a witness to police, whether in written form or on video, falls within the principle articulated in Lee if the only relevant purpose is to establish the truth of the admitted facts.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 60
Cases
- Lee v The Queen (1998) 195 CLR 594
- Adam v The Queen (2001) 207 CLR 96
- R v Suteski [2002] NSWCCA 509
- Tan v R [2008] NSWCCA 332