Citation: R v Brett STAAS (No 2) [2013] NSWDC 220
Court: District Court of New South Wales
Date: 4 October 2013
Judge(s): Cogswell SC DCJ
Background
The offender had been convicted and sentenced for drug supply offences. The Director of Public Prosecutions subsequently brought confiscation proceedings seeking orders under the Confiscation of Proceeds of Crime Act 1989, alleging that certain property represented the proceeds of crime.
In the earlier sentencing proceedings, a psychologist's report had been tendered on the offender's behalf. The report recorded statements the offender had made to the psychologist during an interview. The Crown Prosecutor sought to tender that same report in the confiscation proceedings, arguing it contained admissions by the offender that were relevant to the confiscation application.
Counsel for the offender objected to the tender, even though the same report had been relied upon in the sentencing proceedings. The central question was whether the report could be admitted in the confiscation proceedings, and on what basis.
Legal Issues
- Whether the psychologist's report constituted part of the "transcript" of the earlier sentencing proceedings within the meaning of s 17 of the Confiscation of Proceeds of Crime Act 1989, allowing the court to have regard to it.
- Whether the report was an admission by the offender, and therefore admissible under ss 81 and 82 of the Evidence Act 1995.
- Whether the hearsay rule was excluded by s 68 of the Evidence Act 1995.
- Whether the report, as a document recording what the offender said, amounted to first-hand or second-hand hearsay.
Decision
On the meaning of "transcript" under s 17: The court rejected the Crown's argument that the psychologist's report formed part of the "transcript" of the sentencing proceedings. Drawing on dictionary definitions from the Oxford English Dictionary and the Macquarie Dictionary, Cogswell SC DCJ held that a transcript is something heard and then rendered into writing, representing a written copy of oral proceedings. An exhibit, whether a document, photograph or physical item, is not the same as a transcript. The court also observed that s 17's reference to a "conviction of a serious offence" suggests the transcript provision exists to establish whether the conviction circumstances in s 5 of the Act are made out, rather than to import all exhibits from earlier proceedings.
On admissions under ss 81 and 82: The Crown argued the report was "a document in which the admission is made" within s 82, exempting it from the hearsay rule. The court disagreed. Consistent with the High Court's reasoning in Lee v R, the court held that s 82's reference to a document in which an admission "is made" contemplates a document authored by the person against whom the admission is tendered, not a document authored by a third party recording what that person said. Because the psychologist was not called to give evidence, there was no witness whose honesty and accuracy could be tested. The report was, at most, second-hand hearsay: the psychologist's written recollection of what the offender told her.
On s 68 and first-hand hearsay: The court rejected the Crown's reliance on s 68, which applies to first-hand hearsay. Because the report recorded a third party's account of what the offender said, rather than the offender's own representation, it remained second-hand hearsay and s 68 offered no pathway to admissibility.
Overall conclusion: The court acknowledged that the offender had plainly made statements that would have been relevant and admissible against him, and that the result might appear highly technical. However, the problem lay in the form of the tender. Had the psychologist been called and given oral evidence of what she heard the offender say, those statements could have constituted admissible admissions. Tendering the report alone deprived the offender of the ability to test the reliability of the psychologist's account through cross-examination. The tender of the report was accordingly rejected.
Orders Made
• The tender of MFI 1 is rejected.
Key Takeaways
- A psychologist's report tendered as an exhibit in sentencing proceedings does not form part of the "transcript" of those proceedings for the purposes of s 17 of the Confiscation of Proceeds of Crime Act 1989. A transcript records oral proceedings in written form; exhibits are distinct from that record.
- Under ss 81 and 82 of the Evidence Act 1995, the exception to the hearsay rule for admissions applies where the document itself is authored by the person making the admission, or where a witness who perceived the admission gives oral evidence. A document written by a third party recording what another person said does not satisfy this requirement.
- Where a psychologist records statements made by an interviewee but is not called to give evidence, the report constitutes second-hand hearsay. The High Court's analysis in Lee v R remains relevant: the reliability of such evidence cannot be tested through cross-examination when the maker of the document is absent.
- Section 68 of the Evidence Act 1995, which carves out an exception for first-hand hearsay, does not extend to second-hand hearsay situations of this kind.
- The District Court noted that the same evidence could have been admitted had the psychologist given oral evidence in the witness box, refreshing her memory from the report if necessary, and recounted what she heard the offender say.
Legislation and Cases Referenced
Legislation:
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 5, 17
- Evidence Act 1995 (NSW), ss 59, 68, 81, 82, 87
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Cases:
- Lee v R [1988] HCA 60; (1998) 195 CLR 594; (1998) 102 A Crim R 289
- Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195