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Supreme Court 26 August 2021

R v Crane, James (No 2)

[2021] NSWSC 1071

Homicide
EVIDENCE HEARSAY EXCEPTIONS ACCUSED AND NOT COMPELLABLE WHETHER MAKER “NOT AVAILABLE” WHETHER CO

Citation: R v Crane, James (No 2) [2021] NSWSC 1071
Court: Supreme Court of NSW
Date: 26 August 2021
Judge(s): Fagan J

Background

Seven people, including James Crane and Simon Rodden, were charged jointly with the murder of a man at Gosford in June 2017. An earlier judgment had refused James Crane's application to be tried separately from his co-accused. The joint trial was listed to commence in 2022.

James Crane sought a pre-trial ruling permitting him to tender substantial parts of an induced statement Rodden had made to police on 13 June 2017. That statement had been obtained on a police promise that nothing in it would be used in criminal proceedings against its maker. The Crown did not oppose the tender, but two co-accused, Colin Crane and Symons, objected to parts of it on various grounds.

Because Rodden was a co-accused in the same joint trial, he could not be compelled to give evidence against his will under section 17(3) of the Evidence Act 1995 (NSW). James Crane argued that this non-compellability made Rodden "not available" as a witness, triggering the hearsay exception in section 65(8) of the Act.

Legal Issues

  • Whether Rodden was "not available" as a witness within the meaning of section 65(1) of the Evidence Act 1995 (NSW), specifically under paragraphs (e) and (g) of the clause 4 Dictionary definition of unavailability.
  • Whether a failed application for separate trial constituted a "reasonable step to compel" a co-accused to give evidence for the purposes of paragraph (g).
  • Whether section 17(3), by making a co-accused non-compellable, amounts to a statutory "prohibition" on evidence being given, so as to engage paragraph (e).
  • Whether the Crown's failure to oppose the tender of Rodden's statement meant the court was bound to admit it.

Decision

Issue 1: Whether paragraph (g) applies to a legally non-compellable witness

Fagan J held that paragraph (g) of the unavailability definition applies only where it is legally open to take steps to compel a person to give evidence, and those steps have been taken without success (at [20]). Where section 17(3) renders a co-accused entirely non-compellable, no steps can lawfully be taken to compel attendance at all. To treat legal immunity from compulsion as equivalent to "all reasonable steps having been taken without success" would distort the natural meaning of paragraph (g) (at [20]). His Honour reasoned that if the legislature had intended non-compellability to constitute unavailability, it would have said so explicitly, as it did with legal incompetence in paragraph (b) (at [21]). A legally non-compellable witness falls within "all other cases" under clause 4(2) and is therefore taken to be available (at [21]).

Issue 2: Whether the separate trial application was a "reasonable step to compel"

James Crane argued that his earlier application for a separate trial should be treated as a reasonable step towards compelling Rodden to give evidence, because success in that application would have removed Rodden's associated defendant status and thus his non-compellability. Fagan J rejected this (at [25]-[26]). Paragraph (g) must be applied to the proceeding in which the evidence is to be given, namely the joint trial as it will actually be conducted. Characterising an application to reconstitute the trial into an entirely different proceeding as a step towards compelling a witness in the existing trial was "an artificial and unacceptable strain upon the language" of paragraph (g) (at [25]).

Issue 3: Whether paragraph (e) was engaged

James Crane submitted that section 17(3), by making Rodden non-compellable, "prohibits" him from giving evidence within the meaning of paragraph (e) of the unavailability definition. Fagan J rejected this as inconsistent with the ordinary and natural meaning of the provision (at [29]). Section 17(3) does not prohibit Rodden from giving evidence; it merely removes the power to compel him to do so. Rodden remains free to testify voluntarily (at [29]-[32]).

Issue 4: The Crown's acquiescence and the fair trial of co-accused

The Crown's decision not to oppose the tender did not determine admissibility. Fagan J held that, because the Crown had itself successfully opposed James Crane's application for a separate trial, the court could not permit the Crown's acquiescence to expose other jointly indicted accused to potentially prejudicial untested hearsay without independently examining admissibility (at [7]). The court noted that if the Crown wished to facilitate Rodden's evidence being heard, the appropriate mechanism was to indict James Crane separately, where Rodden could testify and be cross-examined (at [34]).

Orders Made

  • Statement of Simon Rodden ruled inadmissible.

Key Takeaways

  • Paragraph (g) of the clause 4 Dictionary definition of "not available" in the Evidence Act 1995 (NSW) is concerned only with prospective witnesses in relation to whom it is legally open to take steps to compel attendance. A co-accused who is non-compellable under section 17(3) does not fall within paragraph (g), because no steps to compel can lawfully be taken at all (at [20]-[21]).

  • The absence of legal incompetence from the accused as a statutory basis of unavailability is significant: had the legislature intended non-compellability to constitute unavailability for the purposes of sections 63 and 65, it would have included a specific paragraph to that effect, as it did for incompetence in paragraph (b) (at [21]).

  • An unsuccessful application for separate trial does not constitute a "reasonable step to compel" a co-accused to give evidence in the existing joint trial, because paragraph (g) must be assessed by reference to the actual proceeding in which the evidence is to be tendered (at [25]-[26]).

  • Section 17(3) does not "prohibit" a co-accused from giving evidence within the meaning of paragraph (e) of the unavailability definition. The provision removes the power of compulsion; it leaves the co-accused free to testify voluntarily (at [29]-[32]).

  • Where a joint trial has been ordered over an accused's objection, the court retains an independent obligation to examine the admissibility of evidence tendered by one accused that may prejudice others, and is not simply bound by the Crown's decision not to oppose that tender (at [7]-[8]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW)
- Evidence Act 2008 (Vic)

Cases
- Abernethy & Hawkins v The Queen [2020] VSCA 96
- Coco v The Queen (1984) 179 CLR 427
- R v Annakin (1988) 37 A Crim R 131
- R v Crane, James [2021] NSWSC 693
- R v Davis & Quinn (No 6) [2020] NSWSC 1888
- R v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1999) 107 A Crim R 432
- Webb and Hay v The Queen (1994) 181 CLR 41