Citation: R v PITT, Michael Alfred John [2017] NSWDC 24
Court: District Court of NSW
Date: 27 January 2017
Judge(s): Judge S Norrish QC
Background
The accused stood trial on charges including a count of robbery of a complainant referred to as Mr Dong. At the outset of the trial, it was understood that Mr Dong, who had returned to China, would give evidence by video-link. The Crown anticipated he would be available mid-week during the trial.
By the time his evidence was required, the Crown could not reach Mr Dong. He had not opened emails sent to arrange the video-link connection, and his whereabouts could not be confirmed. He had last communicated with investigators on 22 January 2017, indicating he would "try best to help."
The Crown served a notice under s 67 of the Evidence Act 1995 (NSW) indicating it intended to rely on Mr Dong's written statement as evidence under s 65 of the same Act, rather than calling him to give live evidence subject to cross-examination.
Legal Issues
- Whether "reasonable notice" had been given to the defence of the Crown's intention to rely on Mr Dong's statement as that of an unavailable witness under s 65 and s 67 of the Evidence Act 1995 (NSW)
- Whether the unfair prejudice to the accused of being unable to cross-examine Mr Dong outweighed the probative value of his statement, potentially requiring exclusion under ss 135 or 137 of the Evidence Act 1995 (NSW)
- If admissible, in what form the statement should be placed before the jury
Decision
Issue 1: Reasonable notice
The court acknowledged the notice was very short. The defence had only known since the Friday before that Mr Dong was overseas, and had expected until the morning of the ruling that he would be available for cross-examination (at [9]). However, the Crown itself had only learned that morning that Mr Dong had apparently not opened the emails sent to arrange his evidence (at [10]).
Taking into account that the defence had held the statement for a considerable period, and that the real contest at trial was not whether a robbery occurred but whether the accused was one of the two offenders, the court concluded, with some hesitation, that reasonable notice had been given (at [11]).
Issue 2: Unfair prejudice under ss 135 and 137
The court accepted as a general proposition that the inability to cross-examine a witness constitutes a form of unfair prejudice relevant to the ss 135 and 137 analysis (at [8]). It assessed that prejudice in the context of the actual issues at trial. Highly probative CCTV footage and still photographs provided objective evidence of the robbery, reducing the weight the jury would need to place on Mr Dong's account alone (at [13]).
The court identified one aspect of the statement as particularly prejudicial: Mr Dong's description of the robber as having dark skin on his forehead and dark-coloured legs. Given the accused's appearance, this description carried real potential for unfair prejudice that could not be cured by other evidence (at [15]). The court concluded the statement was admissible under s 65(2), but ordered that the skin-colour description be excised (at [17]-[18]).
Issue 3: Form of admission
The court declined to tender the statement as a formal exhibit to be held by the jury during deliberations, expressing concern that doing so would inappropriately enhance its evidentiary weight and that visible redactions could themselves signal prejudice (at [18]). Instead, the court directed that the statement be marked for identification only, with its contents to be read aloud to the jury in redacted form, consistent with how oral evidence is received.
Orders Made
- The statement of the unavailable witness Mr Dong to be admitted in redacted form, with the description of the robber's skin colour excluded
- The statement to be marked for identification only, not tendered as a jury exhibit, and its contents read aloud to the jury in redacted form
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence in criminal proceedings where unfair prejudice outweighs probative value; the inability to cross-examine a witness is itself a recognised form of unfair prejudice (at [8]).
- Reasonable notice under s 67 is assessed contextually: where the Crown itself had minimal warning of a witness's non-availability, a very short period of formal notice to the defence may still be sufficient, particularly where the defence has long held the statement in question (at [10]-[11]).
- A partial remedy for unfair prejudice is available: rather than excluding a statement entirely, a court may admit it in redacted form, removing the specific content that creates the unfair prejudice (at [17]).
- The District Court distinguished between admitting a statement as a formal exhibit and reading its contents aloud to the jury, preferring the latter to avoid both inflating the statement's apparent weight and drawing attention to redactions through a document in the jury's hands (at [18]).
- Where strong objective evidence such as CCTV footage independently supports the occurrence of the events described in a witness's statement, that context is relevant to assessing whether the prejudice from losing cross-examination outweighs probative value (at [13]-[14]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- No cases sighted