Citation: R v Michael Anthony Ryan (No. 7) [2012] NSWSC 1160
Court: Supreme Court of New South Wales
Date: 18 September 2012
Judge(s): Campbell J
Background
The accused faced a murder trial. A key witness, Mr Moody, had given police an electronically recorded interview (known by its acronym ERISP) shortly after the incident, in which he described watching the accused punch the deceased twice. The second punch was followed, on his account to police, by the deceased falling backwards.
When called at trial, Mr Moody gave a significantly more equivocal account. He acknowledged seeing what he described as a "jab" but could not remember whether it connected, and he expressly denied knowing what caused the deceased to fall. The Crown had already obtained leave to cross-examine Mr Moody as a unfavourable witness under section 38 of the Evidence Act 1995 (NSW).
The Crown then tendered the DVD containing excerpts from the recorded interview as an exhibit. Defence counsel raised two objections: first, that the prior inconsistent statement was inadmissible following 2009 amendments to the Evidence Act; and second, that special rules governing audio-visual evidence required the DVD to be kept from the jury room during deliberations.
Legal Issues
- Whether a prior inconsistent statement recorded in a police interview was admissible as an exception to the credibility rule under the Evidence Act 1995 (NSW), as amended in 2009
- Whether the inconsistency between the recorded interview and the witness's trial evidence was sufficient to engage the relevant exception
- Whether the principles in Gately v The Queen (2007) 232 CLR 208 and R v NZ (2005) 63 NSWLR 628, which restrict jury access to audio-visual testimony recordings, applied to a police interview DVD
Decision
On admissibility of the prior inconsistent statement
Campbell J found a clear inconsistency between what Mr Moody told police and what he said at trial. In the police interview, he described a close temporal connection between the second punch and the deceased falling backwards. At trial, he disavowed any knowledge of what caused the fall. The court held this inconsistency was sufficient to bring the recorded statement within the relevant exception to the credibility rule in the Evidence Act, rendering the DVD admissible.
The court examined the legislative history carefully, including the changes introduced by the Evidence Amendment Act 2007 (NSW) implementing the recommendations of the Australian Law Reform Commission. Even following those amendments, the court was satisfied that the statutory exception applied on the facts of this case.
On jury access to the DVD during deliberations
The defence argued that the principles in Gately and R v NZ created a rule restricting jury access to audio-visual recordings of witnesses giving evidence-style accounts, and that those principles should apply here. Campbell J disagreed. The court drew on the Victorian Court of Appeal's reasoning in R v Davies, which distinguished between video recordings of a witness giving testimony in chief (where the risk of disproportionate weight is acute) and recordings of other events such as identification parades or police interviews. A police interview is a record of an event, not testimony in chief, and the same dangers do not arise.
The court accordingly admitted the DVD as a full exhibit and directed that it be available to the jury during deliberations. Campbell J indicated a direction would be appropriate cautioning the jury against giving the evidence disproportionate weight, and reminding them to consider it alongside the eyewitness accounts given in court.
Orders Made
- The DVD (MFI 21) was admitted into evidence as Exhibit P and made available to the jury during deliberations.
- A direction was indicated to be given to the jury against according the exhibit disproportionate weight.
Key Takeaways
- The Supreme Court confirmed that a prior inconsistent statement can still be admissible under the Evidence Act 1995 (NSW) following the 2009 amendments, provided it falls within an applicable exception to the credibility rule in section 102.
- The relevant inconsistency does not need to be about an outright denial. Here, the court found sufficient inconsistency between an account implying close causal connection between a punch and a fall, and trial evidence expressly disclaiming any knowledge of the cause of the fall.
- The restrictive principles governing jury access to audio-visual recordings from Gately and R v NZ apply specifically to recordings in the nature of evidence-in-chief, not to police interview recordings, which are records of events rather than substitutes for in-court testimony.
- Drawing on R v Davies, the court treated a police ERISP recording as analogous to other forms of documentary or video evidence that juries routinely have access to during deliberations, such as CCTV footage.
- Even where audio-visual evidence is permitted to go to the jury room, a direction warning against disproportionate weight remains appropriate, particularly where some relevant events appear only partially or indirectly in the recording.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), including sections 38, 56, 60, 102, 106
- Evidence Amendment Act 2007 (NSW)
- Evidence Act 1997 (Qld)
- Interpretation Act 1987 (NSW)
Cases
- Adam v The Queen (2001) 207 CLR 96
- Aslett v R [2006] NSWCCA 49
- Blewitt v The Queen (1988) 62 ALJR 503
- Gately v The Queen (2007) 232 CLR 208
- Lee v The Queen (1998) 195 CLR 594
- McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218
- R v Adam aka Odishou (1999) 47 NSWLR 267
- R v Davies (2005) 11 VR 314
- R v Michael Anthony Ryan (No 2) [2012] NSWSC 1034
- R v NZ (2005) 63 NSWLR 628