Citation: R v Hawi & ors (No 13) [2011] NSWSC 1659
Court: Supreme Court of New South Wales
Date: 28 July 2011
Judge: R A Hulme J
Background
The trial arose from two episodes of violent conduct at Sydney Airport's Qantas domestic terminal on 22 March 2009. The Crown alleged that an affray occurred near Gate 5 and, minutes later, a riot broke out in the departure hall, resulting in a death. The Crown called a witness, referred to as AL, who had himself participated in the violence but had obtained a reduced sentence after pleading guilty and undertaking to give evidence for the prosecution.
Because AL was a co-participant turned Crown witness, his credibility was squarely in issue. During cross-examination by counsel for one of the accused, AL made a series of denials about his past drug use and mental health history. Counsel sought to contradict those denials by tendering two documents sourced from health records: notes from the Corrections Health Service (MFI 50) and hospital records from Nepean Hospital (MFI 53).
The Crown objected to admission of both documents. Hulme J delivered these reasons after announcing his rulings on 19 July 2011.
Legal Issues
- Whether MFI 50 (Corrections Health Service notes) was admissible as a business record containing a prior inconsistent statement capable of substantially affecting the jury's assessment of AL's credibility.
- Whether the pages of MFI 53 (Nepean Hospital records) contained prior representations by AL, or were instead summaries prepared by hospital staff.
- Whether, even if the pages of MFI 53 constituted prior representations by AL, those representations were relevant and capable of substantially affecting the assessment of AL's credibility under the Evidence Act 1995.
Decision
MFI 50 was admitted. The Corrections Health Service notes recorded a prior representation by AL that he had used heroin, speed and other drugs by injection. At trial, AL adamantly denied ever having touched heroin. Hulme J was satisfied the notes constituted a business record containing a prior inconsistent statement. The key point was not the relative importance of historical drug use itself, but rather the fact that AL made an unequivocal denial of something he must at some point have told a health professional. A jury could reason that heroin use is not something a person would forget, and that the strident denial in the face of the prior record was capable of being treated as a lie. The credibility gateway under s 103(1) of the Evidence Act 1995 was satisfied.
Two pages of MFI 53 were excluded as non-representations. The Discharge Summary (Tab 1) and the nursing note (Tab 4) were summaries prepared by staff, not records of AL's own words. They did not purport to quote AL and were not admissible as prior representations by him.
The remaining pages of MFI 53 were excluded on relevance and credibility grounds. Tabs 2 and 3 contained material closer to AL's own reported words, including statements about hearing voices and thoughts of harming others. However, Hulme J identified three potential bases for relevance and found none of them sufficient. The representations were remote in time, made during an episode of psychotic mental disorder, and their subject matter had largely been conceded in cross-examination already. On the credibility basis, the court concluded it was questionable whether AL's denial of the specific content could substantially affect the jury's assessment of him at all, particularly given the volume of other psychiatric and memory-related evidence already before the jury. The word "substantially" in s 103(1) carried real weight. The documents did not clear that threshold.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 103(1) of the Evidence Act 1995, a prior inconsistent statement can be used to attack a witness's credibility only if it could substantially affect the jury's assessment of that witness. The threshold is meaningful and must be assessed in light of all credibility-related evidence already before the jury.
- A business record that captures a prior representation by a witness in clear, direct terms can satisfy the admissibility requirements under s 69(1) of the Evidence Act 1995, even where the subject matter of the representation is not directly relevant to the facts in issue at trial.
- The credibility value of a denial does not rest solely on the importance of the underlying subject matter. Hulme J reasoned that an unequivocal and strident denial of something the witness must have said to the contrary can itself be probative of a willingness to lie.
- Hospital records that summarise a patient's presentation in staff-authored narrative form do not qualify as prior representations by the patient, even where the summary draws on what the patient reported. Only records that capture the patient's own words sufficiently closely will meet that standard.
- Where other evidence before the jury already substantially covers the credibility terrain that a further document is said to address, the marginal contribution of that document to the "substantially affects credibility" test diminishes, and exclusion becomes more likely.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 69(1), 103(1)
Cases:
- Browne v Dunn (1893) 6 R 67