Citation: R v Brooks (No 4) [2017] NSWSC 315
Court: Supreme Court of New South Wales
Date: 17 March 2017
Judge: Hamill J
Background
The accused, a young apprentice chef, stood trial for offences arising from a violent incident at a hotel in April 2015. His defence included self-defence and defence of another person. A central factual plank of that defence was that he had previously been assaulted at the same hotel on 27 February 2015, suffering injuries serious enough to require medical attention.
A witness, the accused's employer at a restaurant, had made a statement that touched on three matters: the accused's good character, what she was told about the February assault and its aftermath, and conversations she had with the accused around Easter and on the afternoon of 5 April 2015 (just hours before the events giving rise to the charges).
The dispute before Hamill J concerned whether certain parts of the employer's statement were relevant and admissible, and whether the Crown was obliged to call her as a witness in its own case.
Legal Issues
- Whether the conversations the employer had with the accused shortly before 5 April 2015 (including references to the February assault) were relevant evidence in the trial.
- Whether earlier hearsay conversations in the statement were admissible under sections 65 and 66 of the Evidence Act 1995 (NSW), or at least admissible to provide context for the later conversations.
- Whether the Crown Prosecutor was under a duty to call the employer as a witness, having regard to the prosecutor's general obligation to call witnesses necessary to unfold the narrative of events.
Decision
Hamill J ruled that the conversations referred to in paragraphs 27 and 29 of the employer's statement were relevant evidence. The February assault at the same hotel was already common ground as relevant to the self-defence issue. Because the conversations on and before 5 April 2015 served to remind the accused of what had happened at that venue previously, they were directly connected to his state of mind at the time of the charged events.
On the hearsay question, the court found it unnecessary to resolve the sections 65 and 66 arguments in full. The defence submitted that the earlier conversations were admissible at least to provide context for the later ones, and the ruling on their ultimate basis could await the close of evidence depending on which witnesses were called.
Regarding the Crown's duty to call the employer, the court noted that whether her evidence was strictly "necessary to unfold the narrative" (the test from Whitehorn v The Queen) was debatable either way. However, the Crown Prosecutor had indicated he would call the witness if the court ruled her evidence relevant, and Hamill J expressly commended that approach as admirably fair.
The practical consequence of the ruling was that the Crown would call the employer as a witness, which in turn allowed the accused the tactical benefit of cross-examining her and eliciting the earlier conversations about the February assault.
Orders Made
• Evidence in paragraphs 27 and 29 of the statement of Ms Baird is ruled to be relevant evidence and admissible.
Key Takeaways
- A conversation that reminded the accused of a prior assault at the same venue, occurring just hours before the charged events, was held to be relevant to whether he genuinely believed self-defensive action was necessary and whether his response was reasonable in the circumstances as he perceived them.
- Relevance to self-defence under section 418 of the Crimes Act 1900 (NSW) extended not only to the prior assault itself but also to communications that reinforced the accused's awareness of that earlier event at the time of the alleged offending.
- Where hearsay conversations are admitted at least to provide context for other admissible conversations, the precise basis for admitting the earlier statements may be deferred until the close of evidence, once the full witness picture is known.
- The prosecutor's duty to call witnesses, as established in Whitehorn v The Queen (1983) 152 CLR 657 and The Queen v Apostolides (1984) 154 CLR 563, does not operate mechanically. Hamill J noted the duty's application on these facts was genuinely debatable, though the Crown's voluntary approach rendered resolution of that question unnecessary.
- Hamill J expressly commended the Crown Prosecutor's decision to call the witness upon a relevance ruling as reflecting the proper, fair approach expected of a prosecutor in criminal proceedings.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 418 (self-defence)
- Evidence Act 1995 (NSW), ss 65, 66 (hearsay exceptions)
Cases
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- The Queen v Apostolides (1984) 154 CLR 563; [1984] HCA 38