Citation: R v Hawi & ors (No 16) [2011] NSWSC 1662
Court: Supreme Court of New South Wales
Date: 10 August 2011
Judge(s): R A Hulme J
Background
This decision arose within a large criminal trial concerning events at Sydney Airport on 22 March 2009. One accused, referred to here as the accused, was arrested on 3 July 2009 and made two spontaneous statements to the arresting detective: one questioning whether the police thought he was a murderer, and another denying any wrongdoing while invoking his right to silence.
Defence counsel had those statements placed before the jury through cross-examination of the detective. Because the accused was not going to give evidence himself, defence counsel then sought to bolster the credibility of those arrest-time statements by tendering a further prior representation: a short extract from an intercepted telephone conversation recorded the day after the airport incident, in which the accused appeared to characterise events as "self-defence."
The Crown opposed the tender. The question for Hulme J was whether the intercepted passage was admissible as credibility evidence under s 108A of the Evidence Act 1995.
Legal Issues
- Whether credibility evidence about the maker of a prior representation is admissible under s 108A of the Evidence Act 1995 where that person will not be called to give evidence.
- Specifically, whether the short extract from the intercepted telephone conversation "could substantially affect" the assessment of the accused's credibility, as required by s 108A(1).
- Whether the extract could be placed before the jury in isolation from its broader conversational context.
Decision
Hulme J confirmed the statutory framework: once evidence of a previous representation has been admitted and the maker will not testify, s 108A permits credibility evidence about that person only if it "could substantially affect" the assessment of their credibility. The credibility in question is the credibility of the representation itself, not the accused's general character.
The defence argued that the intercepted reference to "self-defence," made unbeknown to the accused, functioned as a prior consistent statement capable of supporting the credibility of the later arrest-time denials. Hulme J accepted that, viewed in isolation, the extract might have some bearing on credibility assessment. However, the statutory threshold requires more than a marginal or theoretical effect: the evidence must be capable of substantially affecting that assessment.
The Crown drew the court's attention to the full context of the intercepted conversation, as well as a preceding call involving another accused who had pleaded guilty. Hulme J found that both conversations were marked by a tone of bravado and levity about the airport incident. Viewed in that context, the reference to "self-defence" was highly unlikely to represent a serious or genuine assertion of legal justification.
Hulme J concluded that the extract, divorced from its context, could not substantially affect the credibility assessment. He went further, finding that placing only the short passage before the jury would be positively misleading. When the full context was considered, the extract was more likely to reflect adversely on the accused than to support his credibility. The evidence was accordingly ruled inadmissible.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 108A of the Evidence Act 1995, credibility evidence about the maker of a previous representation is inadmissible unless it "could substantially affect" the assessment of that person's credibility. A marginal or theoretical effect is insufficient to clear this threshold.
- The credibility being assessed under s 108A is the credibility of the representation itself, not the accused's credibility in a broader sense.
- A prior exculpatory statement captured in an intercepted telephone call may, on its face, appear capable of functioning as a prior consistent statement. However, the court must assess that statement in its full conversational context rather than in isolation.
- Hulme J noted that tendering only a decontextualised extract risks being positively misleading to the jury, particularly where the surrounding material suggests the statement was made in a tone inconsistent with a genuine or serious assertion.
- Following amendments to the Evidence Act implementing the recommendations of ALRC 102, the Court of Criminal Appeal decision in Regina v Rymer can no longer be regarded as good law in relation to the adducing of prior exculpatory statements by the Crown.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 101A, 108A, and the Pt 1 Dictionary definition of "credibility"
Cases
- Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96
- Regina v Rymer [2005] NSWCCA 310; (2005) 156 A Crim R 84
Secondary Material
- Stephen Odgers, Uniform Evidence Law, 9th ed (2010) Lawbook Co, [1.3.7618]