Citation: R v Hawi & ors (No 14) [2011] NSWSC 1660
Court: Supreme Court of New South Wales
Date: 4 August 2011
Judge(s): Hulme J
Background
The trial concerned two episodes of violent conduct at the Qantas domestic terminal at Sydney Airport on 22 March 2009. The Crown alleged an affray near Gate 5 and a riot in the departure hall minutes later, the latter resulting in a death. Multiple accused were on trial.
The Crown called an accomplice witness, referred to as SP, who had participated in the violent conduct at both locations. SP had pleaded guilty to affray and riot and received a reduced sentence in exchange for agreeing to give evidence for the prosecution. A murder charge against him was withdrawn. Both SP's reliability and general credibility were squarely in issue at trial.
On 10 July 2009, before any formal induced interview took place, SP spoke informally with Detective Sergeant McLoughlin. During that conversation, SP outlined what he had witnessed and done. The detective took rough notes, which he later rewrote to improve legibility and put into more complete English. Those six pages of handwritten notes became the subject of a tender dispute during the detective's cross-examination.
Legal Issues
- Whether the detective's notes of SP's informal account constituted admissible prior inconsistent statements relevant to SP's credibility.
- Whether the notes were otherwise relevant to the assessment of SP's credibility, including whether they contradicted SP's description of his account as "just a rough outline."
- Whether the notes were admissible under section 66 of the Evidence Act 1995 as an exception to the hearsay rule in criminal proceedings where the maker of the representation is available.
- Whether admitting the notes would be unfair to SP, given that he had not been given a full opportunity to comment on all their contents during cross-examination.
Decision
Hulme J ruled the notes inadmissible. The cross-examination of SP had not squarely put to him that his informal account was more than an outline, and SP had not had the opportunity to comment on that proposition in full. To admit the notes to impugn his credibility on that basis, without SP having been given that chance, carried an element of unfairness.
On the prior inconsistent statement question, the judge found that the cross-examination directed at the notes had not, properly analysed, identified prior inconsistent statements in the conventional sense. What was actually put to SP was the absence of certain matters from the notes, rather than statements in the notes contradicting what SP had later said in evidence.
As to relevance, Hulme J accepted that section 66 of the Evidence Act might render the hearsay in the notes technically admissible. However, relevance under sections 55 and 56 of the Act remained a prior and independent requirement. The court was not satisfied that the notes could substantially affect the jury's assessment of SP's credibility, and without that, the notes had no relevant purpose.
The judge also noted that counsel had ample opportunity during SP's cross-examination to put the full notes to him and invite comment. The fact that this was not done meant the argument that the jury needed the notes in their entirety to understand what had been put to SP was not persuasive.
Orders Made
No formal orders were extracted in this decision. The ruling was that the detective's notes were not admissible as an exhibit.
Key Takeaways
- Relevance under sections 55 and 56 of the Evidence Act 1995 is a threshold requirement that must be satisfied before any hearsay exception, including section 66, can operate to admit evidence.
- A document used in cross-examination does not automatically become admissible as an exhibit; the tendering party must identify a live relevance, particularly where the witness has not adopted or been given the opportunity to comment on the document in full.
- Prior inconsistent statement reasoning requires an actual inconsistency between an earlier statement and the witness's evidence at trial. Pointing to what a witness omitted from an early account is a distinct exercise and does not necessarily establish a prior inconsistent statement.
- Where a witness has not been given a fair opportunity to respond to a proposition derived from a document, admitting that document to impugn credibility may be treated as unfair.
- Under the Evidence Act, the capacity of evidence to "substantially affect" the assessment of a witness's credibility is a meaningful threshold, not merely a formality.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 56 (relevance), s 66 (hearsay exception: criminal proceedings where maker available)
Cases cited: None cited in the judgment.