R v Rees [2000] NSWSC 643

New South Wales Supreme Court

CITATION : R v Rees [2000] NSWSC 643 FILE NUMBER(S) : SC 70106/97 HEARING DATE(S) : JUDGMENT DATE : 19 June 2000

PARTIES : Crown Jason Lee Rees JUDGMENT OF : Bell J at 1

COUNSEL : L K Wells - Crown J G Spencer - Accused SOLICITORS : S E O'Connor - Crown Jeffreys & Associates - Accused LEGISLATION CITED : Evidence Act 1995 R v Adam (1999) 47 NSWLR 267 R v GAC (unreported NSWCCA 1 April 1997) CASES CITED : R v Lockyer (1996) 89 A Crim R 457 R v Souleyman (1996) 40 NSWLR 712 Graham v The Queen [1988] HCA 61; 195 CLR 606 @ 608 DECISION :

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Monday, 19 June, 2000 70106/97 - REGINA v Jason Lee REES

JUDGMENT

1 HER HONOUR: Mr Spencer objected to the admission of evidence from the witness Mark Chipperfield. On 6 June 2000 I heard evidence on the voir dire from this witness. On 7 June 2000 I ruled that I proposed to allow the evidence of the witness. He was called in the presence of the jury on 8 June 2000 and during the course of examination in chief the Crown sought leave to cross examine him pursuant to s 38(1) of the Evidence Act 1995 (the Act). Pursuant to s 38(1)(a), (b) & (c) I granted that leave. Subsequently, the Crown tendered an edited version of the electronically recorded interview between the witness and Detective Beck made on 19 November 1997 (the ERISP). Mr Spencer objected to the admission of that evidence. I allowed it in. I now give my reasons for each of these rulings.

2 Mr Chipperfield was jointly charged with the accused with the murder of the deceased, David Palin. It appears that the two men became suspects in the police investigation at an early stage. In his interview with Detective Beck Mr Chipperfield gave a detailed account of the assault and robbery of David Palin on 18 November 1997. He put forward a version that the accused had, in the course of the robbery, assaulted the deceased by striking him with a piece of wood which resembled the leg of a chair. 3 Mr Chipperfield and the accused were arraigned before Carruthers AJ on 15 June 1999. The indictment contained two counts against Mark Chipperfield; the first was of the murder of David Palin, the second (and alternative count) was of robbery in company contrary to s 97 of the Crimes Act 1900. Upon his arraignment Mark Chipperfield pleaded guilty to the alternate count and the Crown accepted that plea in full discharge of the indictment. The arraignment of the accused, Jason Rees, was stood over until after the completion of the sentence proceedings involving the witness, Chipperfield. 4 On 15 June 1999 an agreed statement of facts was handed up to Carruthers AJ and on the following day his Honour sentenced Mark Chipperfield to a minimum term of 3 years and 3 months penal servitude to date from 19 November 1999. An additional term of 1 year and 9 months was specified. 5 The accused was arraigned before Carruthers AJ on 17 June 1999 upon an indictment in the same terms as the present. He pleaded not guilty and a jury was empanelled and the trial proceeded. On 24 June the witness, Mr Chipperfield, was called in the Crown case. The effect of his evidence on that occasion was that he had no recall of the robbery of David Palin on 18 November 1997. 6 The jury were discharged without verdict in the trial before Carruthers AJ, they being unable to agree. 7 The accused was remanded for retrial. The date fixed for that trial was 31 January 2000. Prior to empanelling the jury I dealt with a number of preliminary issues in the week commencing 31 January. The Crown Prosecutor observed that the Crown was on notice of the likelihood (having regard to the way matters had proceeded in the trial before Carruthers AJ) that Mr Chipperfield would not adhere to the account given to police in the course of his record of interview. In the event that Mr Chipperfield were to maintain that stance the Crown Prosecutor foreshadowed that she would make an application for leave pursuant to s 38 of the Act. It was considered convenient to explore that matter prior to empanelling the jury. Mr Spencer consented to this course. 8 On 2 February 2000 Mr Chipperfield was called and gave evidence on the voir dire. Put shortly he denied any recall of the events of 18 November 1997 or of his participation in the ERISP. For reasons that it is not necessary to recite, the trial was thereafter adjourned. 9 On 31 May 2000 the trial of the accused commenced before me and a jury. The Crown indicated an intention to call Mark Chipperfield. As I have noted above, Mr Spencer objected to the reception of evidence from this witness. In the light of the observations of Wood CJ at CL (with whom the other members of the Court agreed) in Regina v Fowler [2000] NSWCCA 142 at [130] it seemed appropriate to hear evidence from the witness on the voir dire. Mr Chipperfield gave evidence in the absence of the jury on 6 June 2000. He said that he had no memory of events on 17 or 18 November 1997. He did not recall being taken into custody. A day or two thereafter he became aware that he was being held in connection with the death of David Palin. He has not suffered any defects in his memory since that time. The memory loss is for a discrete period which coincides with the subject offence and is otherwise unexplained. 10 At the conclusion of the evidence taken on the voir dire the Crown Prosecutor indicated that it remained her intention to call the witness. This was a case in some respects like that of Regina v Adam (1999) 47 NSWLR 267 in which it was plain that the Crown's forensic purpose in calling the witness was with a view to obtaining the grant of leave to cross examine pursuant to s 38(1) and to prove the contents of the previous representations made by the witness in the course of the interview either as prior inconsistent statements or as an exception to the hearsay rule pursuant to s 66(2) of the Act. 11 I should also note that Mr Chipperfield's evidence was that he had viewed the ERISP but that this had not revived his memory as to the statements he made therein. In the light of this evidence I did not consider that attempts should be made to have the witness revive his memory pursuant to s 32 of the Act prior to addressing any issue as to the grant of leave under s 38. 12 Mr Spencer submitted that I would exclude the evidence in the exercise of discretion pursuant to s 137 of the Act. He contended that the probative value of the evidence of the witness was slight; he had no memory of the subject events. The tender of the ERISP carried a danger of unfair prejudice which outweighed such probative value as it might have. The unfair prejudice which Mr Spencer identified was that he had no opportunity to test the witness upon the version given in the ERISP since the witness now claimed amnesia for the subject events. Allied to this was the inference the jury might draw as to the reason for the witness' amnesia. It was plainly feigned. The jury was likely to reason in one of two ways; (i) Chipperfield feared repeating his allegations in the presence of the accused or (ii) Chipperfield wanted to help the accused by not repeating his allegations. Either inference carried the real risk of prejudice to the accused. There was no way the accused could meet this. 13 In Fowler in the Court of Criminal Appeal the Crown Prosecutor conceded that the probative value of the two witnesses (the subject of the grant of leave to cross examine in each case pursuant to s 38) was slight. The Crown submitted that this was not the case here. The Crown case is one of 'common purpose murder'. It is alleged that the accused and Mark Chipperfield were a party to a common purpose to rob David Palin. They were armed with a wooden table leg and during the robbery one or other (or both) repeatedly struck the deceased with the table leg occasioning the head injuries from which he died. Central to the Crown case is proof of the common purpose to rob. The Crown seeks to prove that Chipperfield has on a prior occasion admitted both that he was present at the deceased's unit on the morning of 18 November 1997 and that he entered the unit demanding that the deceased hand over his drugs and that the deceased was struck with a wooden table leg. 14 For his part Mr Spencer stated that in the event that Mark Chipperfield were not called he would not invite any Jones v Dunkel inference. 15 The probative value of evidence means the extent to which the evidence could rationally assess the assessment of the probability of the existence of a fact in issue. A fact in issue in these proceedings is whether there existed a common purpose between the accused and Mark Chipperfield to rob David Palin on 18 November 1997. I do not consider that the probative value of the evidence of the witness Mark Chipperfield can be said to be either slight or neutral in the way the evidence of the two witnesses in Fowler was held to be (I say this in the light of the view I have come to as to the admissibility of the ERISP in the event Mr Chipperfield is called).