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Supreme Court 17 February 2015

R v A (No 3)

[2015] NSWSC 79

Other
CRIMINAL LAW EVIDENCE EXAMINE THE WITNESS AS TO CREDIT WHERE OPPORTUNITY TO CROSS EXAMINE WOULD BE LOST EVIDENCE EXCLUDED

Citation: R v A (No 3) [2015] NSWSC 79
Court: Supreme Court of New South Wales
Date: 17 February 2015
Judge(s): Bellew J

Background

The accused was on trial in the Supreme Court, with the matter in its third week. The Crown's case was due to close. Among the remaining evidence the Crown sought to tender were paragraphs from a statement made by a witness, referred to as JT, dated 29 August 2012.

Those paragraphs contained evidence of previous instances of alleged neglect by the accused toward the deceased. Bellew J had previously ruled in R v A (No 2) [2015] NSWSC 76 that such material was admissible as context evidence, provided it was led in an admissible form.

The difficulty was that police had been unable to serve a subpoena on JT despite extensive efforts, including direct service attempts, multiple phone calls, and inquiries through her mother. The officer in charge expressed the view that JT was deliberately avoiding service. With the witness unavailable, the Crown sought to tender her statement under s 65(2)(b) of the Evidence Act 1995 (the hearsay exception for unavailable witnesses).

  • Whether the witness JT was "not available" for the purposes of s 65(1) of the Evidence Act 1995
  • Whether the Crown had given sufficient notice under s 67 of the Act, and whether any deficiency in notice should be dispensed with under s 67(4)
  • Whether the evidence ought to be excluded under s 135 (general discretion to exclude unfairly prejudicial evidence) or s 137 (mandatory exclusion where probative value is outweighed by unfair prejudice to the accused)

Decision

Bellew J accepted, without dispute, that JT was "not available" within the meaning of s 65(1), and that the evidence fell within s 65(2)(b). The contest was entirely about whether the evidence should nonetheless be excluded on discretionary or mandatory grounds.

Senior counsel for the accused pressed two compounding factors. First, the Crown gave notice of its intention to rely on s 65 only within the previous 24 hours, effectively at the eve of the Crown case closing. Bellew J accepted that the Crown Prosecutor bore no personal criticism for this, having notified the defence as soon as the position became clear. The lateness of the notice was nevertheless treated as a relevant factor weighing against admission.

Second, and significantly, senior counsel informed the Court from the bar table that he held instructions to cross-examine JT on matters going to her credit, including alleged drug dealing and other issues. Bellew J accepted those instructions unreservedly. Unlike the position in R v Suteski, where the prejudice from loss of cross-examination was found to be speculative, Bellew J found that the prejudice here was concrete and specific.

Taking both factors together, the Court held that the probative value of the evidence was clearly outweighed by the danger of unfair prejudice to the accused. The evidence was excluded under s 137 of the Evidence Act 1995.

Orders Made

• The evidence is excluded pursuant to s. 137 of the Act.

Key Takeaways

  • Under s 65(2)(b) of the Evidence Act 1995, hearsay evidence from an unavailable witness may be admitted, but it remains subject to exclusion under ss 135 and 137 where unfair prejudice outweighs probative value.
  • Late notice of an intention to rely on s 65, even where the Crown Prosecutor is personally blameless, is a relevant factor in the exclusionary balancing exercise under ss 135 and 137.
  • Loss of the opportunity to cross-examine a witness is also a relevant consideration, but it is not automatically decisive. Each case requires an individual assessment of the character of the evidence and the nature or strength of the potential prejudice, as confirmed in R v Suteski (2002) 56 NSWLR 184.
  • Where specific, articulated grounds for cross-examination on credit exist, the resulting prejudice from losing that opportunity is not speculative and carries significant weight. In Suteski the prejudice was found speculative and the evidence admitted; in this case the opposite conclusion followed.
  • Section 137 imposes a mandatory obligation to refuse Crown evidence where the probative value is outweighed by the danger of unfair prejudice to the accused, leaving no residual discretion once that threshold is met.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 65(1), 65(2)(b), 67(1), 67(4), 135, 137

Cases
- R v A (No 2) [2015] NSWSC 76
- R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 184
- Ordukaya v Hicks [2000] NSWCA 180
- Bakerland Pty Limited v Coleridge [2002] NSWCA 30
- R v Clark [2001] NSWCCA 494