Citation: R v Clare [2022] NSWDC 21
Court: District Court of New South Wales
Date: 24 January 2022
Judge(s): Haesler SC DCJ
Background
Four accused were being tried jointly at Wollongong District Court on charges of specially aggravated detain for advantage under s 86 of the Crimes Act 1900. The prosecution alleged that the accused held two individuals against their will at a residential address and assaulted them, seeking to recoup money lost in a drug supply transaction gone wrong. One of the alleged victims transferred $4,000 into a co-accused's bank account during the incident.
Prior to trial, Haesler SC DCJ had ruled in separate pre-trial proceedings that recorded police interviews with one of the co-accused (Morley) were inadmissible because they had been improperly obtained. Specifically, the court found that Morley had been denied his statutory rights under the Law Enforcement (Powers and Responsibilities) Act 2000. That ruling excluded the interviews from the trial entirely.
After the jury was empanelled, counsel for another co-accused (Clare) sought to reopen the question. She applied to have one specific statement from Morley's excluded interview admitted during the prosecution case, but only in Clare's trial. The statement suggested Morley had asked Clare to receive a bank transfer on his behalf without her understanding its purpose, potentially supporting Clare's innocence by showing she was not a knowing participant in the criminal enterprise.
Legal Issues
- Whether a co-accused (Clare) could rely on s 65(8) of the Evidence Act 1995 to lead a previous representation made by another co-accused (Morley) whose interviews had already been excluded as improperly obtained
- Whether the evidence could be admitted in Clare's trial alone, with its use limited by s 136 of the Evidence Act 1995, so as to avoid prejudicing Morley
- Whether the earlier exclusion ruling under s 138 of the Evidence Act 1995 should be revisited in the context of the joint trial, given the different purpose for which the evidence was now sought
- Whether the probative value of the proposed evidence, weighed against the circumstances of its improper obtaining, justified admission under the s 138 balancing test
Decision
Haesler SC DCJ accepted that s 65(8) of the Evidence Act 1995 is a beneficial provision designed to allow a defendant to rely on a relevant and potentially exculpatory representation made by an unavailable co-accused. The court confirmed that Morley was "unavailable" within the meaning of the Act: as a co-defendant being tried jointly, he was neither competent to give evidence for the prosecution nor compellable to give evidence on Clare's behalf. Section 65(8) does not require the same preconditions as s 65(2), and its purpose includes enabling defendants to lead third-party confessions.
However, the court held that admissibility under s 65(8) does not foreclose discretionary exclusion. The earlier ruling that the evidence was improperly obtained remained intact, and that finding required the court to apply the s 138 balancing test: whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that improper manner. The court considered all the factors listed in s 138(3), including the probative value of the evidence, its importance to the proceeding, the gravity of the impropriety, and whether that impropriety was deliberate or reckless.
The court found the probative value of Morley's statement to be limited. Cross-examination of the two alleged victims had already placed a version of that account before the jury to some extent. More significantly, the court found that no new circumstance had been put before it that could justify reversing the original exclusion order in the context of a joint trial. The impropriety identified in the pre-trial ruling was serious: Morley had been denied his LEPRA rights. That conclusion was not weakened merely because the evidence was now sought to be used by a different party for a different purpose.
The court concluded that s 138 provided an even stronger basis for rejection than s 135. The application was refused, and the earlier ruling was not reversed.
Orders Made
- The earlier ruling excluding Morley's interview evidence was not reversed.
- The proposed evidence from Morley's interview was not permitted to be led in Clare's trial.
Key Takeaways
- Under s 65(8) of the Evidence Act 1995, a defendant can seek to lead a previous representation made by an unavailable co-accused, including as a means of adducing potentially exculpatory material, without needing to satisfy the stricter preconditions of s 65(2).
- Admissibility under s 65(8) does not guarantee admission: the provision operates alongside, not instead of, the discretionary exclusion regime under ss 135 and 138 of the Evidence Act 1995.
- Where evidence has already been found to have been improperly obtained, a mid-trial application by a different co-accused to lead that same evidence for a different purpose does not automatically reopen or override the earlier exclusion ruling.
- The District Court applied the s 138(3) balancing test and found that limited probative value, combined with the gravity of the original impropriety (denial of LEPRA rights), meant the desirability of admitting the evidence did not outweigh the undesirability of doing so.
- A court conducting a joint trial retains the power to revisit earlier evidentiary rulings if circumstances change, but a change in the party seeking to lead the evidence, without more, is insufficient to justify reversal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 86
- Evidence Act 1995 (NSW), ss 12, 17, 55, 65(8), 67, 68, 81, 83, 87, 135, 136, 138
- Law Enforcement (Powers and Responsibilities) Act 2000 (NSW)
Cases
- Hague v R [2019] VSCA 218
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Davis (No 6) [2020] NSWSC 1888
- R v Morley [2021] NSWDC 681
- R v O'Connor [2003] NSWCCA 335
- R v Rahme [2001] NSWCCA 414
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32