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Supreme Court 2 May 2019

R v Rossi-Murray; R v Byrnes

[2019] NSWSC 479

Homicide
CRIME WITNESS IS A PRISONER EARLIER STATEMENTS NOT ADMITTED LEAVE FOR THE CROWN TO CROSS EXAMINE REFUSED

Citation: [2019] NSWSC 479
Court: Supreme Court of New South Wales
Date: 2 May 2019
Judge(s): Rothman J

Background

Two accused faced charges including murder and accessory after the fact to murder. The Crown sought to call a prisoner witness, Mr Millar, who had given three statements to police in 2016 and early 2017. Those statements contained evidence directly inculpating one of the accused in relation to the accessory charge.

When called on the voir dire (a preliminary hearing to test the admissibility of evidence), Mr Millar said he had no memory of making the statements, no memory of the underlying events of 2 and 3 July 2016, and no ability to confirm whether the contents of the statements were true. He attributed his memory difficulties to head injuries suffered in a separate assault in late 2016 or early 2017, as well as other incidents.

The Crown applied for leave to cross-examine Mr Millar under section 38 of the Evidence Act 1995 (NSW) and to tender his prior statements as evidence. The court conducted a detailed analysis of several interlocking provisions of the Evidence Act to determine whether that course was permissible.

Legal Issues

  • Whether Mr Millar lacked the competence to give evidence about the relevant facts under section 13 of the Evidence Act.
  • Whether Mr Millar was "unavailable" as a witness within the meaning of clause 4 of the Dictionary to the Evidence Act, so as to engage section 65.
  • Whether Mr Millar's evidence constituted a prior inconsistent statement for the purposes of section 38(1)(c) of the Evidence Act.
  • Whether leave to cross-examine Mr Millar under section 38 of the Evidence Act should be granted.
  • Whether the prior statements could be admitted under section 66 of the Evidence Act.
  • Whether the danger of unfair prejudice to the accused outweighed the probative value of the evidence under section 137 of the Evidence Act.

Decision

Issue 1: Competence under section 13

Rothman J found that Mr Millar was competent to give evidence. Section 13 operates fact by fact and asks whether a person lacks capacity to understand a question about a fact, or lacks capacity to give an answer that can be understood. Mr Millar could understand all questions put to him, and his answer of "I cannot recall" was itself intelligible and comprehensible (at [20]-[24]). No basis existed under section 13 to treat him as incompetent.

Issue 2: Unavailability under section 65 and clause 4 of the Dictionary

Section 65 permits the admission of prior representations in criminal proceedings where the maker is "not available" to give evidence. Clause 4(1)(c) of the Dictionary covers a person who is mentally or physically unable to give evidence. The court accepted that if Mr Millar's injuries had genuinely left him unable to give evidence, he would fall within that clause. However, the Crown failed to prove on the balance of probabilities that Mr Millar was mentally or physically unable to give evidence, particularly given the court's suspicion that he remembered more than he was admitting (at [31]-[33]). Section 65 was therefore unavailable to the Crown.

Issue 3: Prior inconsistent statement under section 38(1)(c)

The court found that Mr Millar's evidence of memory loss was not a prior inconsistent statement within the meaning of section 38(1)(c). An inability to recall events is not the same as contradicting what was previously said. Mr Millar was not asserting that he did not give the statements, nor that the statements were untrue; he simply had no memory of either (at [38]-[39]).

Issue 4: Leave to cross-examine under section 38(1)(a)

The court found that the Crown had proved on the balance of probabilities that Mr Millar's evidence was unfavourable to the Crown and that he was not making a genuine attempt to give evidence, satisfying section 38(1)(a) (at [40]-[43]). The court also considered the factors in section 192, which govern the grant of leave. The seriousness of the charges (murder and accessory to murder) weighed in favour of granting leave, and the importance of the evidence to the Crown's case was acknowledged (at [54]).

Issue 5: Admission under section 66

Section 66 provides a pathway to admit prior representations where the maker is available to give evidence and the events were fresh in memory when the representation was made. However, section 66(3) carves out representations that take the form of statements of evidence a person would give in court proceedings. All three of Mr Millar's statements were in that form, and section 66(2) therefore did not apply to permit their admission by the prosecution, except in relation to identification evidence (at [48]).

Issue 6: Unfair prejudice under section 137

Rothman J ultimately refused leave to cross-examine and to tender the statements, concluding that the danger of unfair prejudice to the accused outweighed the probative value of the evidence (at [57]-[60]). The court identified a procedurally anomalous consequence: permitting the Crown to adduce the statements via cross-examination would effectively require the accused to cross-examine Mr Millar in a way that established the probative value of his evidence only to then attempt to destroy it. The jury would likely be left with the strong impression that Mr Millar was simply refusing to cooperate, which would operate like a Browne v Dunn obligation and shift an improper burden to the accused. The statements were also induced, requiring reliability warnings, yet their admission would still carry significant prejudicial weight.

Orders Made

  • The application for leave to cross-examine Mr Millar under section 38 of the Evidence Act 1995 (NSW) is rejected.
  • The application for leave to adduce the prior representations made in Mr Millar's statements is rejected.

Key Takeaways

  • A witness who gives answers of "I cannot recall" satisfies the competence requirements of section 13 of the Evidence Act, provided those answers are intelligible and comprehensible responses to the questions asked, even if the witness may in fact remember more than they are disclosing (at [20]-[24]).

  • Under clause 4 of the Dictionary to the Evidence Act, a witness is not "unavailable" merely because they claim memory loss; the party seeking to rely on section 65 must prove on the balance of probabilities that the witness is mentally or physically unable to give evidence about the fact in question (at [31]-[33]).

  • A witness's evidence that they cannot recall making prior statements, or recall the facts in those statements, is not a prior inconsistent statement for the purposes of section 38(1)(c), where the witness does not deny having made the statements or assert they were untrue (at [38]-[39]).

  • Section 66(3) of the Evidence Act excludes from the operation of section 66(2) any prior representation that takes the form of a statement of evidence a person would give in proceedings, which captures the standard form police statement signed by a witness (at [48]).

  • Even where prior statements satisfy the requirements for cross-examination under section 38, the court retains a discretion under section 137 to refuse admission where the procedural consequences of adducing the evidence would create a danger of unfair prejudice to the accused that outweighs the probative value, particularly where the jury may draw an adverse inference from the witness's conduct that effectively burdens the accused (at [57]-[60]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss13, 38, 43, 60, 65, 66, 137, 142, s 165, 192, cl 4.1 of the Dictionary

Cases
- Browne v Dunn (1893) 6 R 67
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- RPS v R (2000) 199 CLR 620; [2000] HCA 3