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Court of Criminal Appeal 28 September 2016

R v TAI, Alatini

[2016] NSWCCA 207

Theft & property
EVIDENCE WHETHER INABILITY TO CROSS

Citation: R v TAI, Alatini [2016] NSWCCA 207
Court: Court of Criminal Appeal, NSW
Date: 28 September 2016
Judge(s): Beazley P at [1]; Garling J at [48]; Hidden AJ at [51]

Background

The respondent faced a robbery charge in the District Court, arising from an alleged incident in August 2014 at Mt Druitt. The complainant, an 84-year-old man, had won a substantial sum at a hotel poker machine that evening and was allegedly followed and robbed on his walk home. The complainant made two statements to police in the hours after the alleged robbery, but he died before the matter came to trial.

Because the complainant was deceased, the Crown sought to tender his pre-trial statements under the hearsay exception in section 65(2) of the Evidence Act 1995 (NSW), which permits the admission of representations made by an unavailable person in certain circumstances. The respondent opposed the tender and applied to have the evidence excluded under section 135 (or section 137) of the same Act.

The trial judge, Hanley SC DCJ, accepted that the statements were admissible under section 65(2) but exercised his discretion to exclude them under section 135(a), finding that their probative value was substantially outweighed by the danger of unfair prejudice to the respondent. The Crown appealed that interlocutory ruling to the Court of Criminal Appeal under section 5F(3A) of the Criminal Appeal Act 1912 (NSW).

  • Whether the trial judge erred in the exercise of his discretion to exclude the deceased complainant's statements under section 135(a) of the Evidence Act 1995 (NSW)
  • Whether the inability to cross-examine the deceased complainant could, of itself, give rise to "unfair prejudice" substantial enough to justify exclusion under section 135(a)
  • Whether the trial judge impermissibly based his exclusion ruling on the perceived inadequacy of the police investigation, rather than on permissible considerations
  • Whether the Crown established appellable error in accordance with the principles in House v The King (1936) 55 CLR 449

Decision

The Court of Criminal Appeal unanimously dismissed the Crown's appeal, with Beazley P delivering the principal judgment and Garling J and Hidden AJ agreeing. The starting point was that the trial judge's ruling was a discretionary one, so the Crown was required to demonstrate error in the House v The King sense: that the judge acted on a wrong principle, allowed extraneous matters to guide him, mistook the facts, or failed to take into account some material consideration.

On the section 135(a) question, Beazley P confirmed that the provision addresses not evidence that merely tends to establish the prosecution case, but evidence that carries a real risk of being misused by the jury in some unfair way. The Court accepted that, in appropriate circumstances, the unavailability for cross-examination of the maker of representations admitted under section 65(2) can give rise to unfair prejudice that substantially outweighs probative value.

The Crown argued the trial judge had impermissibly taken into account the inadequacy of the police investigation. The Court rejected that characterisation. On the President's analysis, the trial judge's reasoning was properly directed at whether cross-examination of the witnesses who were actually available would give the respondent a meaningful opportunity to challenge the deceased complainant's reliability and credibility. Because key witnesses (such as the neighbour who made the triple-zero call) were unavailable, it was open to the trial judge to conclude that adequate testing of the complainant's account was not possible.

Garling J added that the proposed trial course gave the respondent very limited opportunities to test the Crown's case, and that tendering the deceased victim's account through other witnesses, in circumstances where the victim himself could not be cross-examined, was demonstrably unfairly prejudicial. No error in the exercise of the trial judge's discretion was established.

Orders Made

• The Crown appeal is dismissed.

Key Takeaways

  • A discretionary decision to exclude evidence under section 135(a) of the Evidence Act 1995 (NSW) will only be overturned on appeal where error in the House v The King sense is demonstrated; a disagreement with the result is not sufficient.
  • Under section 135(a), "unfair prejudice" refers to the risk that a jury will misuse evidence in some unfair way, not merely the risk that evidence will effectively prove the prosecution case.
  • In appropriate circumstances, the unavailability of the maker of representations admitted under section 65(2) can give rise to unfair prejudice substantial enough to justify exclusion, particularly where the witnesses available to be cross-examined cannot adequately stand in to test reliability and credibility.
  • No error was established in the trial judge's reasoning simply because unavailability of certain witnesses arose from police investigation decisions; what mattered was the practical effect on the respondent's ability to challenge the evidence at trial.
  • The Court of Criminal Appeal confirmed that the proper frame for the section 135(a) analysis is the totality of witnesses available, and whether cross-examination of those witnesses would give the accused a genuine opportunity to contest the representations in question.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 65(2), 67, 135, 137
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Crimes Act 1900 (NSW), s 94

Cases:
- House v The King (1936) 55 CLR 449; [1936] HCA 40
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37