Supreme Court New South Wales Medium Neutral Citation: R v Wiggins (No 3) [2021] NSWSC 1128 Hearing dates: 14 July 2021 Date of orders: 6 September 2021 Decision date: 06 September 2021 Jurisdiction: Common Law Before: N Adams J Decision: The evidence of Mr X is admissible. Catchwords: CRIMINAL PROCEDURE — application to exclude evidence – hearsay evidence of statements made by a Crown witness regarding his involvement in the alleged murder – where witness was charged as an accessory before the fact but charges were no-billed – whether second-hand hearsay or implied admissions – held, statements are first-hand hearsay and not admissions – whether admissions made with authority in furtherance of common purpose – held, common purpose ended upon death of deceased – narrative statements made after the event not made in furtherance of common purpose – whether fresh in the witness' memory – statements made up to seven years after the event – held to be fresh in the memory due to nature of events – whether admissible as credibility evidence in the alternative – whether evidence should be excluded under s 137 – held, probative value outweighs unfair prejudice – s 165 warning appropriate due to hearsay nature Legislation Cited: Evidence Act 1995 (NSW), ss 38, 59, 60, 62, 66, 81, 83, 87, 101A, 102, 103, 106, 136, 137, 165 Cases Cited: Higgins v R [2020] NSWCCA 149 Landini v State of NSW [2007] NSWSC 259 Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Basha (1989) 39 A Crim R 337 R v Dolding [2018] NSWCCA 127 R v Gregory-Roberts [2016] NSWCCA 92 R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Wiggins v R [2020] NSWCCA 256 Category: Procedural rulings Parties: Regina (Crown) Matthew Paul Wiggins (Accused) Representation: Counsel: Mr P Barrett (Crown) Mr D Dalton (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) Khan Law & Associates File Number(s): 2013/13092 Judgment 1. Matthew Paul Wiggins is charged with the murder of Darko Janceski ("the deceased") and the intentional infliction of grievous bodily harm on the deceased's father, Slobodan Janceski on 14 April 2012. 2. This matter has had a long procedural history. The accused was arrested and charged with the murder of the deceased on 15 January 2013. In March 2017, a trial commenced but was ultimately aborted. In October 2017, a second trial commenced, which resulted in a hung jury. In April 2018, a third trial proceeded before Latham J and a jury of twelve. The accused was convicted at the third trial. He appealed against his conviction and a new trial was ordered: Wiggins v R [2020] NSWCCA 256. His re-trial was listed to commence on 21 June 2021 but, regrettably, that trial date had to be vacated due to the suspension of jury trials caused by the COVID-19 pandemic. It has now been listed for hearing on 17 January 2022. 3. Prior to the 21 June 2021 trial date being vacated, I requested that the parties ventilate any remaining pre-trial issues so that a jury could be empanelled without delay once the trial was able to commence. Senior counsel for the applicant, Mr Dalton SC, submitted that he objected to the evidence of a new witness (not called at any of the previous trials) whom I shall refer to as Mr X for the purposes of this judgment. 4. The Crown Prosecutor indicated that he had not yet decided whether he would be calling the witness. Despite this, it was agreed that a decision should be made now to save time in the event that the Crown decided to call the witness at trial. The Crown case 1. For the purposes of these reasons I have taken the following summary from the Crown Case statement. 2. The shooting of the deceased took place on 14 April 2012 in the front yard of his parents' home. The gunman rode by on a blue and white Yamaha WR 450 trail bike and stopped outside the house. The gunman was wearing a jacket, motorcycle helmet, Prada sunglasses, a balaclava and gloves. He shot the deceased and then engaged in an altercation with the deceased's father, who ran outside to confront the gunman. The deceased's father knocked off the gunman's helmet and sunglasses and suffered injuries to his face constituting grievous bodily harm. The gunman left on the motorbike, wearing the balaclava but leaving the helmet and sunglasses behind. 3. It is the Crown case that Mr Wiggins was the gunman. The Crown case is circumstantial. One of the circumstances relied upon by the Crown is the bike used by the shooter. One week after the shooting, on 21 April 2012, a Yamaha WR 450 trail bike was found, burned out, adjacent to the Nan Tien Temple, three kilometres from the scene of the murder. It was the Crown case that this was the bike used in the shooting. 4. In March 2012, one month before the murder, a blue and white Yamaha WR 450 trail bike was advertised for sale by Matthew Ryan. On 28 March 2012, Christopher Madden purchased that bike ("the Ryan bike") under a false name. Mr Madden lived in the Illawarra district and was a close friend of Derek Ferguson. Mr Ferguson was also a close friend of the accused. 5. Mr Madden's evidence in the 2018 trial was that shortly after he purchased the bike it developed a "knock" and he disposed of it by chaining it to a telegraph pole with a "for sale" sign on it. He said that it was purchased the next day by a man with dreadlocks. It is not in dispute that the Ryan bike was the bike found burned out next to the temple. 6. The Crown case is that the accused obtained the Ryan bike from Mr Madden, through Mr Ferguson, and that that was the bike used in the shooting. The circumstances relied upon in order to establish this include frequent phone contact around the time of the shooting between Mr Madden and Mr Ferguson and between Mr Ferguson and the accused. Another circumstance is that after Mr Madden purchased the Ryan bike, he took it to Mr Ferguson's place of work, which was near the Nan Tien Temple. 7. It is anticipated that Mr Ferguson will admit that the bike was brought to his workplace but will deny having obtained it through Mr Madden or having supplied it to the accused. 8. On 17 January 2013, police searched Mr Ferguson's home and seized two balaclavas. The two balaclavas were tested for DNA: one contained a mixture originating from at least four people, from which the accused could not be excluded as a major contributor; the other contained a mixture originating from at least three people from which Mr Ferguson could not be excluded as a major contributor. 9. The helmet left at the scene contained the accused's DNA on the inside front of the helmet and the DNA of others, including the accused, on other locations. The accused's case is that there is an innocent explanation for that DNA, namely that he test-rode another motorbike (an "R6") at Mr Ferguson's house and used the gunman's helmet for that test-ride. Another witness, Mr Dingle, claimed to have ridden the same R6 motorcycle and used the same helmet, and was "pretty sure" that the helmet from Mr Ferguson's garage was the same one used by the gunman. 10. Mr Ferguson was initially charged in relation to the shooting (as an accessory before the fact and a participant in a criminal group) but his charges were later "no-billed". The proposed evidence of Mr X 1. The Crown intends to call Mr X to establish a link between the accused, Mr Ferguson and the Ryan bike. The witness provided a three-page statement to police on 9 May 2019. 2. Mr X's evidence is that he does not know the accused but was a close associate of Mr Ferguson. He states that he was in gaol when the shooting occurred, but he knew the accused had been charged (and in 2018, convicted) of that offence. It is anticipated that Mr X will give evidence that Mr Ferguson spoke to him about the accused and his trial. He told Mr X that he had been subpoenaed to give evidence but was trying to avoid it. 3. It is anticipated that Mr X will give evidence that on one occasion he was standing on the driveway of Mr Ferguson's house and the conversation turned to the charges against Mr Ferguson. Mr X's anticipated evidence includes the following: 1. That Mr Ferguson said that his own charges for the murder of the deceased had been no-billed but he had heard that police were thinking of re-charging him; 2. That Mr Ferguson said, "I organised the motorbike"; 3. That Mr Ferguson said, "The cops raided me house and found the balaclava", although Mr X was not sure if he said "they found the balaclava" or "they missed the balaclava"; 4. That Mr Ferguson said something about the helmet "that bloke" used (in the murder). Mr X could not remember the exact words, but it was something like he (Mr Ferguson) had to "source it". Objections to the evidence 1. Senior counsel for the accused objected to the proposed evidence of Mr X on several grounds under the Evidence Act 1995 (NSW). The following arguments were relied upon in support of the contention that the evidence of Mr X is inadmissible and ought to be excluded: 1. That the evidence of Mr X contains second-hand hearsay (s 62(1), Evidence Act); 2. That the evidence of Mr X is inadmissible because it contains admissions against a third party (s 83, Evidence Act) and is not admissible as an admission made with authority (s 87, Evidence Act); 3. That the evidence of Mr X is otherwise irrelevant and not, as the Crown contends, admissible as credibility evidence (ss 103, 106, Evidence Act); and 4. Even if the evidence is admissible it should be excluded under s 137 of the Evidence Act. 1. I propose to consider each of these arguments in turn. 2. I note at the outset that it was common ground that the evidence was relevant: pursuant to ss 55 and 56 of the Evidence Act. Are the statements inadmissible as second-hand hearsay? 1. The "hearsay rule" is set out in s 59(1) of the Evidence Act and provides that: Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. 1. Section 60(1) provides that: The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. 1. In criminal proceedings there are exceptions to the hearsay rule if the maker of the representation is unavailable (s 65) or available (s 66). Given that in the present matter Mr Ferguson is available to give evidence, and will be called by the Crown, the relevant exception is set out in s 66 of the Act, which provides as follows: 66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by— (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including— (a) the nature of the event concerned, and (b) the age and health of the person, and (c) the period of time between the occurrence of the asserted fact and the making of the representation. … 1. Section 62 of the Evidence Act provides that the exceptions to the hearsay rule in Div 2 of Part 3.2 only apply to first-hand hearsay. Section 62 is in these terms: 62 Restriction to "first-hand" hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. 1. Mr Dalton SC submitted that the statements of Mr X as to what Mr Ferguson told him are second-hand hearsay, "or more remote" and thus inadmissible. He relied on Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 ("Lee") and subs 60(2), (3) of the Evidence Act. In Lee, the accused allegedly made admissions to a bystander shortly after the offence. The bystander then gave a statement to police in which he recounted the admissions. In his evidence at the trial, the bystander claimed that he no longer recalled hearing the admissions. The statements were put to him in cross-examination, which he denied. Evidence was then led from the police officer who took the bystander's statement. The bystander's original statement to police was tendered as evidence of a prior inconsistent statement and, under s 60, as proof of the asserted facts contained in the admissions. 2. The High Court held in Lee that the admissions in the statement to police were not admissible as proof of the asserted facts because they were second-hand hearsay. Section 60(2) of the Evidence Act was subsequently inserted to alter that position so that second-hand hearsay which is relevant and admissible for another purpose is admissible as proof of the asserted fact, except in the case of an admission in criminal proceedings (s 60(3)). Evidence of an admission that is first-hand hearsay may still be admissible under s 81. 3. Mr Dalton submitted, by reference to Lee, that Mr Ferguson's statements were even more remote than the statements that were inadmissible in Lee because they were based on things "said or done" by the accused and therefore, inferentially, constituted admissions on behalf of the accused. 4. I am unable to accept that Mr X's account of what Mr Ferguson told him is second-hand hearsay. The proposed evidence of Mr X is that Mr Ferguson said to him, "I organised the motorbike", "The cops raided me house and found the balaclava", and words to the effect that Mr Ferguson had to "source" the helmet used. It is not apparent how these representations could be anything other than first-hand hearsay. This is to be contrasted to the factual scenario in Lee where the accused made a representation to a bystander who repeated it to a police officer who gave evidence about it. 5. It was submitted on behalf of the accused that there was no indication as to whether Mr Ferguson's information about the shooting "came from the accused or [was] information from someone else, which would make it more remote than even second-hand hearsay". But Mr Ferguson's statements about his own involvement (in supplying a motorbike and helmet and later having a balaclava seized from his house) are clearly within his personal knowledge, based on things that he saw, heard, or otherwise perceived: s 62(2). 6. The situation would be different had the accused made admissions to Mr Ferguson, which Mr Ferguson repeated to Mr X and then denied in court such that evidence was led from Mr X (as evidence of a prior inconsistent statement). It seems to me that that would be a better analogy with the facts in Lee (and the statements would be inadmissible as proof of the asserted facts: s 60(3)). 7. Given that Mr Ferguson's statements all relate to facts about which he had personal knowledge, I am not satisfied that the impugned evidence is second-hand hearsay within the meaning of the Evidence Act. Are the statements otherwise admissible as an exception to the hearsay rule? 1. The relevant exception to the hearsay rule is contained in s 66(2) and the relevant test is whether the asserted fact was "fresh in the memory" of Mr Ferguson when he made the relevant statements. Section 66(2A) sets out relevant considerations when assessing this question including the nature of the event, the time elapsed and the age and health of the person making the representation. I recently considered the application of s 66(2) in Kassab (a pseudonym) v R [2021] NSWCCA 46 (Johnson and Ierace JJ agreeing). In that judgment at [335]-[338] I noted the following authorities on s 66(2): "… In [R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181] the alleged offences occurred in 2003 and 2004 and the complainant told a school friend about the abuse in 2007. Whealy J observed that the time elapsed between the alleged offences and the complaint remains a relevant but not determinative consideration under s 66(2): at [79]. Other factors relevant to the finding that events were 'fresh in the memory' of the complainant in 2007 included the distinguishing features and details of the offending in the representations and that the complainant was 'clearly embarrassed, troubled and not at all like his normal self' (at [84]). … … The High Court considered s 66(2A) of the Evidence Act in [The Queen] v Bauer (2018) 266 CLR 56; [2018] HCA 40 ('Bauer'). Their Honours explained the effect of subs (2A) as follows: ' … sub-s (2A) was inserted into s 66 of the Evidence Act to make clear that the intention of the section is that 'freshness' is not confined to the time which elapses between the occurrence of the relevant event and the making of the representation about that event. Since then, it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years. It depends on the facts of the case.' (footnotes omitted) [emphasis added] In Bauer, representations were made by the complainant about events that had occurred over a period of ten years before the complaint was made. These were held to be admissible under s 66(2) because [of the nature of the allegations, the fact that they occurred repeatedly over years and the complainant's emotional state at the time of the disclosure] … Similarly, in R v Gregory-Roberts [2016] NSWCCA 92, complaints made two years and four years after the events occurred were held to be 'fresh in the memory' of the complainant at the time she made the representations because: '[47] These were all, unquestionably, most unusual experiences for any 11 year old child … these were memorable, complex and emotionally arousing experiences for the complainant. [48] This, when considered together with the complainant's youth and her naivety in sexual terms when she was aged only 11 years, made it highly likely that the memory of these events would endure in her memory for years to come. That is consistent with these events being still fresh in her memory at the time that she made the representations … only some two and four years had passed since the events were alleged to have occurred.'" 1. The evidence of Mr X was that the relevant conversation took place after he was released from gaol and at a time after Mr Ferguson had been subpoenaed to give evidence at the 2018 trial. The events Mr Ferguson is said to have discussed with Mr X took place in 2012 (the shooting of the deceased). Having regard to the principles derived from the decisions I have summarised in Kassab, I am satisfied that involvement in a murder is something that Mr Ferguson was highly unlikely to have forgotten, especially in circumstances where he was also initially charged with offences relating to that murder. I am satisfied the representations were "fresh in the memory" of Mr Ferguson when he spoke to Mr X. 2. I am satisfied that the hearsay evidence is relevant and admissible under s 66(2) of the Evidence Act. Are the statements admissions? 1. Counsel for the accused submitted that Mr Ferguson's statements were admissions and thus inadmissible as against Mr Wiggins pursuant to s 83, or in the alternative that the statements were admissions made under authority (s 87) or implied admissions by the accused (s 81). 2. The first question that arises under this ground is whether Mr Ferguson's statements were "admissions". Admissions are defined in the Dictionary to the Evidence Act as follows: admission means a previous representation that is— (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding. (emphasis added) 1. Mr Ferguson is not a party to the current proceedings and thus a statement made by him is not an admission for the purposes of the above definition. Counsel for the accused relied on s 83 of the Evidence Act, which provides as follows: 83 Exclusion of evidence of admissions as against third parties (1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party. (2) The evidence may be used in respect of the case of a third party if that party consents. (3) Consent cannot be given in respect of part only of the evidence. (4) In this section— third party means a party to the proceeding concerned, other than the party who— (a) made the admission, or (b) adduced the evidence. (emphasis added) 1. That section provides that an admission made by one accused will not be admissible under s 81 against a co-accused in a joint trial (the "third party") without the consent of the co-accused. As Mr Ferguson is not a co-accused or a party to the proceedings and his statements are not admissions under the Evidence Act, s 83 does not apply. 2. Mr Dalton SC submitted that the relevant representations imply a knowledge of the surrounding circumstances of the shooting and the actions of the gunman (presumably through Mr Ferguson's own involvement in the shooting) even though the statements do not identify the accused as the gunman or rely on any admissions by the accused. In other words, it was submitted that these statements were a "backdoor" method of admitting implied admissions or statements by the accused as to things that he had inferentially said or done. 3. I have considered this submission but the fact that Mr Ferguson's statements implicate the accused by linking him to the Ryan bike, the balaclava or the helmet, does not mean that what he allegedly told Mr X amounts to an "admission" by the accused. They are all matters within Mr Ferguson's personal knowledge. Although the relevant statements do not mention the accused, or anything said or done by him, when they are considered with other evidence in the Crown's circumstantial case a link between the accused and the Ryan bike, balaclava and helmet can be made. 4. In the alternative, Mr Dalton submitted that the statements made by Mr Ferguson were inadmissible as they were admissions under authority pursuant to s 87(1)(c) but were not first-hand hearsay and thus not admissible pursuant to ss 60(3) and 82 of the Evidence Act. As to the latter part of this argument it is to be noted that I have already found that the representations are not second hand hearsay. 5. Section 87(1)(c) of the Evidence Act provides as follows: 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that— … (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (emphasis added) 1. Section 87(1)(c) was recently considered by the Court of Criminal Appeal in Higgins v R [2020] NSWCCA 149. In that case, the complainant in a child sexual assault trial alleged that an eyewitness (Brother Downey) entered a classroom while the accused, Brother Higgins, was sexually assaulting him. The complainant said that Brother Downey screamed at the accused and then took the complainant and drove him home. The complainant's evidence was that while Brother Downey was driving him home, he told the complainant to tell his parents that, "I was late, I missed the bus, and I fell over and hurt my backside". This was the previous representation that the Crown sought to adduce as an admission made with authority pursuant to s 87(1)(c). 2. Brother Downey was deceased by the time of the trial and thus the hearsay statement was potentially admissible only under ss 65 or 81/87 of the Evidence Act. The asserted fact that the Crown sought to prove was that Brother Downey witnessed the assault on the complainant and was attempting to conceal it. In that factual context Payne JA (Rothman and Bellew JJ agreeing) observed the following about s 87(1)(c) (at [34]-[37]): "… in R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep), this Court (per Dunford J, with whom Sully and Simpson JJ agreed) held that: '[Section] 87 reproduces the common law relating to representations made by co-conspirators: Ahern v The Queen (1988) 165 CLR 87; or in furtherance of a common purpose: Tripodi v The Queen (1961) 104 CLR 1." It is thus necessary to understand the co-conspirator's rule which was succinctly stated in Ahern v The Queen (1988) 165 CLR 87 at 94-95; [1988] HCA 39 as being: '… when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others … [t]hus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in the partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.' (Footnote omitted.) The Court in Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 explained what was encompassed by 'in furtherance of' or 'in pursuance of'. The Court (Dixon CJ, Fullagar and Windeyer JJ) said (at 7): 'It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise." (Emphasis added.) Consistently with this High Court authority, Simpson AJA found in Dolding (at [32]) that the admission of evidence of a representation made by a person who shares a common purpose with the party to the litigation is confined to representations made 'in furtherance of' the common purpose alleged, by which her Honour meant the common purpose alleged in those proceedings: '[32] … In my opinion it is clear from the terms of s 87(1)(c) that evidence of a representation made by a person who shares a common purpose with the party to the litigation is confined to representations made 'in furtherance of' the common purpose alleged.' (Emphasis in original.)" (underlying added) 1. His Honour adopted the observation of Simpson AJA in R v Dolding [2018] NSWCCA 127 in which her Honour stated at [33] that "it is difficult to see how a representation made by a person in furtherance of a common purpose extraneous to the proceedings could pass the relevance test: Evidence Act, s 56(2)". Because Brother Downey's common purpose (concealing the alleged assault) was extraneous to the offence charged (the alleged assault itself), the previous representation made by him was not an admission made under authority pursuant to s 87(1)(c). 2. As for the requirement in s 87 that the statement be made "in furtherance of" the common purpose, Simpson AJA in Dolding referred at [55] to the observation of Hall J in Landini v State of NSW [2007] NSWSC 259 in which his Honour observed at [19(d)] that: "The phrase 'in furtherance of' carries with it the ordinary English dictionary meaning encapsulated in the word 'furtherance' , namely, the fact of being helped forward; the action of helping forward; advancement, aid, assistance … In the context of s.87(1)(c), it denotes an act done to advance, aid or help a common purpose whether that purpose is a lawful one or not." 1. Applying the principles derived from these decisions to the present matter, it seems to me that while Mr Ferguson may at one point have been engaged in a relevant common purpose with the accused (that being, to murder the deceased), that common purpose ceased when the deceased was killed. His subsequent statements to Mr X could not feasibly have advanced, aided, or assisted in that common purpose. Accordingly, the statements cannot be seen to be admissions made under authority. They are more aptly described as narrative statements of events that had already taken place (Tripodi at [7], extracted above at [42]). 2. I am not satisfied that the statements are "admissions" under the Evidence Act. It follows that they are not inadmissible as against the accused on that basis. The fact that Mr Ferguson is not currently charged in relation to the murder does not alter this fact. Are the statements admissible as credibility evidence? 1. The Crown's alternate argument was that if I was not satisfied that the statements by Mr Ferguson to Mr X were fresh in his memory when he made them (and thus not admissible under s 66(2)), the evidence of Mr X was nonetheless relevant to Mr Ferguson's credibility. 2. The credibility rule is to be found in s 102 which provides that credibility evidence about a witness is not admissible. There are numerous exceptions to this rule including ss 103 and 106 which provide as follows: 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to— (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred. … 106 Exception: rebutting denials by other evidence (1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if— (a) in cross-examination of the witness— (i) the substance of the evidence was put to the witness, and (ii) the witness denied, or did not admit or agree to, the substance of the evidence, and (b) the court gives leave to adduce the evidence. (2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness— … (c) has made a prior inconsistent statement… 1. The Crown submitted that it proposed to question Mr Ferguson about the conversation with Mr X and, assuming he denied making the relevant statements, rebut his denial by calling Mr X to give evidence pursuant to s 106(1). 2. Although Mr Dalton initially submitted that s 103 was only applicable in cross-examination and Mr Ferguson was a Crown witness, it was accepted that the Crown could make an application under s 38 to cross-examine Mr Ferguson under s 38(1)(a) or (b). That section provides as follows: 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about— (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. 1. Although the question of whether leave would be granted under s 38(1) to cross-examine Mr Ferguson remains to be seen, it is to be noted that the Crown was granted leave to cross-examine Mr Ferguson in the 2018 trial: Wiggins v R [2020] NSWCCA 256 at [17]. 2. I am already satisfied that the evidence is admissible under s 66(2). If it were inadmissible on that basis, I would consider it admissible under s 106 as credibility evidence if Mr Ferguson denied the conversation in cross-examination. As the hearsay statements are not admissions, they would also be admissible as proof of the asserted facts under s 60(1). It could also be admissible under s 106(1) depending upon the answers given by Mr Ferguson at the trial. Should the evidence be limited or excluded: ss 136/137 1. Finally, Mr Dalton SC submitted that the evidence should either be excluded under s 137 or if not, that its use should be limited under s 136. The relevant sections provide as follows: 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might— (a) be unfairly prejudicial to a party, or (b) be misleading or confusing. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. Mr Dalton submitted that the probative value of the evidence was extremely low, and that Mr X was akin to a "gaol house informer". The statements were said to be vague, ambiguous, off-the-cuff and undated (possibly occurring some seven years after the shooting). 2. It was further submitted that the accused would be placed in the invidious position of either not cross-examining Mr X on the statements and relying on directions, or trying to attack Mr X's credibility without instructions from Mr Ferguson and at the risk of appearing to the jury to be defending Mr Ferguson. The unfair prejudice was said to arise from the accused's inability to challenge what Mr Ferguson said to Mr X in circumstances where those statements relate inferentially to things done by the accused. Reliance was also placed on the argument that the statements are implied admissions by the accused as to his involvement. 3. As to whether any prejudice could be cured by direction, Mr Dalton referred to Lee at [41] in which the High Court held that, given the admissions were inadmissible as proof of the asserted facts, it was preferable that they not be admitted at all. In relation to a direction under s 136, it was submitted that it would create an "impossible dichotomy" for the jury and would cause such prejudice as to occasion a miscarriage of justice. 4. The Crown submitted that the evidence of Mr X as to what Mr Ferguson told him is probative both as a circumstance establishing a link between Mr Ferguson, the Ryan bike and the accused and as evidence relevant to Mr Ferguson's credit. It was submitted that the probative value of the evidence outweighed any danger of unfair prejudice to the accused. The Crown submitted that any prejudice could be cured by appropriate directions and that jurors are capable of following directions given by the trial judge. 5. I have considered these competing submissions. I would exclude the evidence of Mr X if I was satisfied that its probative value was outweighed by the danger of unfair prejudice to Mr Wiggins. The phrase "probative value" is defined in the Dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The phrase "unfair prejudice" is not defined in the Evidence Act but it has been held that the danger of unfair prejudice means the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the issues in the case: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[92]. 6. The application of s 137 was considered by the High Court in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 ("IMM"). In IMM, French CJ, Kiefel, Bell and Keane JJ held that the assessment of probative value requires that the evidence be taken at its highest, without considering credibility or reliability (at [44], [52]). More recently in The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 the High Court held at [70], in relation to probative value under s 97 of the Evidence Act that: "… provided evidence is rationally capable of acceptance, the possibility of contamination, concoction or collusion falls to be assessed by the jury as part of the ordinary process of assessment of all factors that may affect the credibility and reliability of the evidence." 1. If the jury accepts the evidence of Mr X then the Crown case is strengthened as a link between the accused and the Ryan bike, helmet and balaclava is made via Mr Ferguson. For the purpose of the test under s 137 I must take the evidence at its highest and proceed on the basis that it will be accepted. On that basis, I am satisfied that the probative value of the evidence is reasonably high. 2. The question is whether there is a risk that the evidence will be misused by the jury in some unfair way. Although it is to be accepted that Mr Dalton will have to make forensic decisions as to whether to challenge the evidence of Mr X, that is not the "unfair prejudice" contemplated by s 137. As for needing to obtain instructions from Mr Ferguson, there are already proofs of his anticipated evidence. It may be that a Basha hearing (R v Basha (1989) 39 A Crim R 337) could be conducted so that Mr Dalton (and the Crown for that matter) would know in advance what Mr Ferguson might say in front of a jury. 3. As stated above, I am not satisfied that the evidence of Mr X contains "implied admissions" made by the accused. Nor am I satisfied that the problem referred to by the High Court in Lee is applicable given my findings that the relevant evidence is neither an admission nor second-hand hearsay. 4. As for the suggestion that Mr Dalton could appear to the jury to be defending Mr Ferguson, it is not uncommon in criminal trials for the jury to become aware that a party favours the evidence of one witness over the evidence of another and attempts to advance the more favourable version. I am not satisfied that the prospect of this occurrence amounts to unfair prejudice within the meaning of s 137 of the Evidence Act. 5. I am not satisfied that the probative value of the evidence of Mr X is outweighed by the danger of unfair prejudice to the accused. I do not propose to exclude it. 6. As for whether a warning pursuant to s 165 would be required, Mr X is not strictly a prison informer (s 165(1)(e) of the Evidence Act) but it seems appropriate that some warning ultimately be given about his evidence. Section 165(1) of the Evidence Act provides that the section applies in respect of evidence of a kind that may be unreliable, including hearsay evidence (subs (a)) and the evidence of prison informers in criminal proceedings (subs (e)). Section 165(2) provides that in such circumstances the jury can be warned of that fact and the need for caution in determining whether to accept the evidence and the weight to be given to it. ********* Amendments 19 September 2022 - Publication restriction removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2022