Citation: [2021] NSWSC 846
Court: Supreme Court of NSW
Date: 17 June 2021
Judge(s): Campbell J
Background
The accused was found unfit to plead and the matter was listed for a special hearing, scheduled to commence at Tamworth on 28 June 2021. Because the proceeding was contested and involved some complexity, Campbell J had set aside time prior to the special hearing to resolve preliminary evidentiary disputes raised by defence counsel.
On the morning of the pre-trial hearing, however, the parties largely converged on a joint position. Several contested issues either were unlikely to arise or were better resolved at the point of tender during the special hearing itself, once the court had heard other evidence bearing on admissibility.
The remaining live issues concerned the admissibility of tendency evidence and alleged admissions made by the accused following his arrest, including a recorded police interview (an ERISP) and listening device material obtained under judicial warrant.
Legal Issues
- Whether tendency evidence (notices filed by both Crown and defence) should be ruled on before the special hearing or deferred to the hearing proper
- Whether evidence of admissions, including the ERISP and listening device recordings, should be excluded under s 84 of the Evidence Act 1995 (NSW) (exclusion of admissions influenced by violence or other conduct) or s 138 (discretion to exclude improperly or illegally obtained evidence)
- Whether the Crown had a duty to tender the ERISP as a "mixed statement" so the accused could rely on its exculpatory portions
- Whether the defence notice of motion seeking a pre-trial ruling under s 192A of the Evidence Act should be granted
Decision
Issue 1: Tendency evidence
Campbell J acceded to the parties' joint application to defer all tendency evidence rulings to the special hearing proper. The judge accepted the firm view of two experienced counsel that admissibility of that evidence was better assessed in the context of all the evidence at the hearing (at [2]-[3]). Much of the non-October 2017 evidence was accepted by defence counsel as admissible on other grounds, with the tendency question remaining open (at [4]).
Issue 2: Admissibility of the ERISP and listening device material
After considering defence counsel's submissions grounded in ss 84 and 138, the Crown Prosecutor formed the view that those objections were well made and indicated the Crown would not tender the material at the special hearing (at [8]). In those circumstances, the pre-trial ruling sought by the defence became unnecessary.
Issue 3: Crown's duty regarding mixed statements
Campbell J briefly considered whether the Crown was obliged to tender the ERISP so that the accused could rely on its exculpatory portions, as would ordinarily arise with a "mixed statement" (one containing both incriminating and exculpatory content). The judge concluded that, having regard to the adversarial and accusatorial nature of the proceedings, the Crown Prosecutor's decision not to tender the material did not constitute any breach of a duty of fairness owed to the accused (at [9]).
Issue 4: Defence notice of motion under s 192A
Because the Crown had withdrawn its intention to tender the disputed material, the defence notice of motion seeking a pre-trial exclusion ruling under s 192A was spent. Campbell J dismissed it (at [10]).
Orders Made
- The defence notice of motion filed 9 June 2021, seeking a ruling under s 192A of the Evidence Act to exclude the ERISP and listening device material, was dismissed.
Key Takeaways
- Where the Crown voluntarily elects not to tender disputed evidence following defence objection, a pre-trial application under s 192A of the Evidence Act to exclude that evidence becomes moot and warrants dismissal (at [8], [10]).
- No breach of the Crown's duty of fairness arises when a prosecutor accedes to a defence objection to a mixed statement, provided the adversarial and accusatorial nature of the proceedings is taken into account (at [9]).
- Tendency evidence rulings may appropriately be deferred to the trial or special hearing proper where admissibility may depend on other evidence yet to be heard, particularly where experienced counsel on both sides support that course (at [2]-[3]).
- Under s 84 of the Evidence Act, objections to admissions on the basis of improper conduct, and under s 138 on the basis of illegality or impropriety, can prompt a prosecutor to withdraw reliance on such evidence before any formal ruling is made.
- The mixed statement principle, which ordinarily entitles an accused to have exculpatory portions of a statement before the fact-finder, does not automatically compel the Crown to tender evidence it has decided not to rely upon (at [9]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1999 (NSW) s 84, 138, 192A
Cases
- Nil