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Supreme Court 10 June 2014

R v Briggs (No 4)

[2014] NSWSC 853

Other
CRIMINAL LAW EVIDENCE EXAMINATION IN CHIEF OF WITNESS EVIDENCE ACT S 33

Citation: R v Briggs (No 4) [2014] NSWSC 853
Court: Supreme Court of NSW
Date: 10 June 2014
Judge(s): Button J

Background

This decision arose as a short evidentiary ruling during a criminal trial. The Crown sought to have a police officer, Constable Hill, give his examination-in-chief by reading from his signed written statement, relying on s 33 of the Evidence Act 1995 (NSW).

The statement described events that occurred from around 3:45pm on 24 December 2012 in Armidale. Although the statement was dated 26 December 2012, Constable Hill actually signed it at 12:30am on 27 December 2012, meaning the statement was made approximately two days and nine hours after the events it described.

Defence counsel opposed the application, arguing the statement was not made "soon after" the relevant events as required by s 33(2)(a). That was the sole point in dispute, as the other requirements of s 33(2) were not contested.

  • Whether Constable Hill's signed written statement was made "soon after the occurrence of the events to which it refers" within the meaning of s 33(2)(a) of the Evidence Act 1995 (NSW)
  • Whether there was any discretionary basis to refuse the Crown's application even if the statutory threshold was met

Decision

Button J noted there is limited case authority on s 33, despite the provision having replaced the substantially identical s 418 of the Crimes Act 1900 (NSW) when the Evidence Act commenced in 1995. The section was originally introduced to remove the cumbersome common law process requiring police officers to memorise their statements before giving evidence, a process the then Attorney General had described as a "farce."

Drawing on Orchard v Spooner (1992) 28 NSWLR 114, his Honour confirmed that whether a statement falls within the "soon after" requirement is a question of fact for the court to determine in each case. In that earlier decision, a statement made six weeks after the relevant events was held not to satisfy the test. By contrast, the Court of Criminal Appeal in Chisari v R (No 2) [2006] NSWCCA 325 found no error in allowing a statement made up to eight days after events to be read.

Button J held that a gap of two days and nine hours satisfied the "soon after" requirement in s 33(2)(a). His Honour also declined to exercise any discretion to refuse the application, noting in particular that approximately 18 months had elapsed since the events in question, making reliance on the statement practically sensible. The Crown retained the choice of having the officer either read the statement or be led through it by questions and answers.

Orders Made

  • The evidence was allowed to be given in the form foreshadowed by the Crown Prosecutor, permitting Constable Hill to give examination-in-chief by reading or being led through his written statement pursuant to s 33 of the Evidence Act 1995 (NSW).

Key Takeaways

  • Under s 33(2)(a) of the Evidence Act 1995 (NSW), whether a police officer's statement was made "soon after" the relevant events is a question of fact to be determined by the court on a case-by-case basis.
  • A statement made approximately two days and nine hours after the events it described was held to satisfy the "soon after" requirement in this case.
  • Prior authority establishes that six weeks is too long to satisfy the test (Orchard v Spooner), while up to eight days has been accepted without error (Chisari v R (No 2)), leaving a range of cases that must be assessed on their own facts.
  • Even where the statutory threshold is met, the court retains a discretion to decline to permit evidence to be given in this form, and the Court of Criminal Appeal has noted that leading the witness by questions and answers is sometimes preferable to having the statement read aloud.
  • The practical significance of the time elapsed since the events, here 18 months at the time of trial, is a relevant consideration when exercising that discretion.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 32, 33

Cases:
- Orchard v Spooner (1992) 28 NSWLR 114
- Chisari v R (No 2) [2006] NSWCCA 325
- Steve v The Queen [2008] NSWCCA 231; 189 A Crim R 68
- Dodds v The Queen [2009] NSWCCA 78; 194 A Crim R 408