New South Wales Supreme Court CITATION : R v Taber & Styman [2005] NSWSC 1035 HEARING DATE(S) : 6 October 2005 JUDGMENT DATE : 13 October 2005 Common Law Division JURISDICTION : Criminal List JUDGMENT OF : Studdert J DECISION : Application granted. LEGISLATION CITED : Evidence Act, ss 65, 67, 135, 137 Adam v The Queen (2001) 207 CLR 96 Li v The Queen (2003) 139 A Crim R 281 Papakosmas v The Queen (1999) 196 CLR 297 R v Blick (2000) 101 A Crim R 326 CASES CITED : R v Carusi (1997) 92 A Crim R 52 R v Cook [2004] NSWCCA 52 R v Suteski (2002) 56 NSWLR 182 R v Taber & Styman [2004] NSWCCA 245 R v NZ [2005] NSWCCA 278 Regina v Peter Taber PARTIES : Regina v Ian Craig Styman FILE NUMBER(S) : SC 2002/120; 2002/118 A. Robertson (Crown) COUNSEL : G. Wendler (Taber) G. Kumarasinhe (Styman) S. Kavanagh (Crown) SOLICITORS : Van Houten Solicitors (Accused) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST STUDDERT J Thursday 13 October 2005 2002/120 REGINA v PETER DAVID TABER 2002/118 REGINA v IAN CRAIG STYMAN JUDGMENT 1 HIS HONOUR: This is an application pursuant to s 65(3) of the Evidence Act, seeking to introduce evidence of previous representations made by Shannon Styman in the course of giving evidence. The application is opposed by Mr Wendler on behalf of the accused Peter Taber and by Mr Kumarasinhe on behalf of the accused Ian Styman. 2 It is necessary to record the background to this application. 3 The accused presently before the Court stood trial, together with Shannon Styman, charged, inter alia, with the murder of the deceased and with the further offence of breaking and entering the dwelling of the deceased and committing a serious indictable offence, namely robbery in circumstances of aggravation. The circumstances of aggravation were being in the company of each other and depriving the deceased of her liberty. 4 The jury found the accused Peter Taber and Ian Styman guilty of murder and of aggravated robbery. However, the jury found the accused Shannon Styman not guilty of murder but guilty of manslaughter and of aggravated robbery. 5 The trial judge sentenced Shannon Styman to eight years imprisonment for aggravated robbery and to fourteen years imprisonment for manslaughter. That offender pursued no appeal either against his convictions or sentences. 6 On the other hand, Peter Taber and Ian Styman did appeal and the Court of Criminal Appeal upheld each appeal in relation to the conviction for murder. In each case, such conviction was quashed, as was the life sentence imposed. The sentences for aggravated robbery were also quashed ([2004] NSWCCA 245). 7 The Court of Criminal Appeal, having ordered that Peter Taber and Ian Styman be so tried, those accused are now before this Court standing trial for manslaughter. 8 At the earlier trial Shannon Styman gave evidence and his evidence inculpated both Peter Taber and Ian Styman as being parties to what happened to the deceased, Joy Alchin. So it was that relatively early in the course of this present trial the Crown called Shannon Styman to give evidence. 9 I record briefly what happened when Shannon Styman was called on 29 September 2005. He refused to take an oath and whilst the transcript records that he took an affirmation, he did not respond when an attempt was made to administer the affirmation. 10 I record what happened whilst he was in the witness box (T 462): "WITNESS: I have got nothing to say your Honour, sorry, but I have got nothing to say at all. HIS HONOUR: Be seated, thank you. CROWN PROSECUTOR: Is your full name Shannon Troy Styman? A. I don't know. Is it? Q. Did you say yes? A. I told you, I have already told the officer and I told the Crown. I have got nothing to do. I want to go… Q. And where did you return to specifically in the Nowra area? A. Excuse me your Honour. Is there any chance you can tell me to go back, because I have got nothing to say. HIS HONOUR: Listen to the questions please. A. I have got nothing to say. HIS HONOUR: Listen to the questions. CROWN PROSECUTOR: Where did you return to in the Nowra area on 20 December, sir? A. (No answer). HIS HONOUR: Answer the question please. A. Nowra…" 11 Then (at T 463), he was asked whether his de facto, Nadia Donn, was in receipt of any income. He responded in the affirmative. The following responses were then given to the following questions: "Q. And in what form was that, and how much? A. Fucked if I know. HIS HONOUR: I beg your pardon? A. Buggered if I know. HIS HONOUR: You will adopt a respectful attitude in this court. A. Can you let me go? HIS HONOUR: No. Go on, Mr Crown. A. Well, I won't answer no more questions. If you want to hold me in contempt, go for your fucken' life. CROWN PROSECUTOR: Q. Sir, did you have any method of transportation when you were in Sanctuary Point? A. (No answer). Q. Do you know the accused, Peter Taber? A. (No answer). HIS HONOUR: Q. Answer the question, would you? A. I'm not going to, your Honour. HIS HONOUR: You are not going to? CROWN PROSECUTOR: I ask that he be directed to answer the question. HIS HONOUR: I have already done so. Answer the question. A. I'm not answering the question. I'm not answering nothing. I told the detective this when he come down and served the subpoena on me. He should have told you. You are just wasting the court's money, the government's money. HIS HONOUR: Go on Mr Crown. I direct you to answer the question. CROWN PROSECUTOR: Q. Do you know the accused, Peter Taber? A. (No answer). Q. Sir? A. (No answer). Q. Do you know the accused, Peter Taber? A. (No answer). HIS HONOUR: You realise that you are in contempt of this court? A. Yep. CROWN PROSECUTOR: Well your Honour, I can't take it any further than asking the same question again. And I will do that. Q. Do you know the accused Peter Taber, sir? A. (No answer). Q. Are you able to hear the questions that I'm asking you sir? A. I can hear you quite perfectly. Q. And why won't you answer the question that I'm asking you? A. Because I have got nothing to say. Q. Why haven't you got anything to say? A. Because I haven't. Q. Why? A. None of your business. Q. Sorry? A. None of your business. HIS HONOUR: I think you best step down and I will entertain an application when you are ready to make it Mr Crown. HIS HONOUR: You realise contempt of court is a very serious matter, don't you? A. Well, you are going to do it anyway, so such is life. HIS HONOUR: Step down. A. Thank you very much." 12 The witness was given the opportunity of obtaining legal advice and was brought back into Court on 30 September 2005 when he was informed as to the gravity of contempt of court (T 512). Legal advice was given to the witness on 30 September, and he was brought back into Court on Wednesday 5 October 2005 when he informed the Court he had nothing he wished to say (T 568). He is to be brought back again on 11 November 2005 at 2.00 pm to be heard as to why he should not be dealt with for contempt of court. 13 This is the background against which the Crown seeks to rely upon s 65(3) of the Evidence Act. Section 65 is in the following terms: "(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made." 14 At the outset, it is to be observed that s 65(1) makes the section applicable in circumstances where "a person who made a previous representation is not available to give evidence about an asserted fact". The "unavailability" of persons is addressed in cl 4 of Pt 2 of the dictionary to the Act. Clause 4 provides: "(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact." 15 The Crown here relies upon cl 4(1)(f). In my opinion, cl 4(1)(f) does apply. It seems to me that the Crown has taken all reasonable steps to compel Shannon Styman to give the evidence, but has been unsuccessful. It seems to me to be plain from the events outlined above that Shannon Styman fully appreciates that he faces the prospect of punishment for contempt of court for failing to give evidence before this jury. He has taken legal advice and still refuses to give evidence. He has defiantly resisted the Crown's endeavours to have him give evidence and in my opinion cl 4(1)(f) operates. 16 The dictionary definition concerning unavailability has clearly extended the concept of unavailability. As was observed by Wood CJ at CL in R v Suteski (2002) 56 NSWLR 182 at 195: "As emerges from a reading of the Australian Law Reform Commission reports, the definition of 'unavailability' was intended to cover the position of a witness who refused to give evidence (Report 36 at par 218)." 17 That definition covers the position of Shannon Styman in this case. 18 This brings me to consider s 65(3). Under this subsection, the hearsay rule does not apply to "evidence of a previous representation made in the course of giving evidence in an Australian…proceeding" if the conditions of the subsection are satisfied. "Previous representation" is defined in Pt 1 of the dictionary as meaning "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced." 19 The proceeding in which evidence of the representation is sought to be adduced is the trial currently under way. What Shannon Styman said at the earlier trial amounted to representations made otherwise than in the course of giving evidence at this trial and hence amounted to a previous representation for the purposes of s 65(3). 20 Further, for the purposes of s 65(3) it is clear that the accused at this trial each had the opportunity of cross examining Shannon Styman at the earlier trial and the transcript discloses that he was cross examined at that earlier trial by Mr Wendler of counsel, who appears again for the accused Peter Taber, and by Mr McCrudden of counsel, who appeared at the earlier trial for the accused Ian Styman. 21 I am satisfied that the operation of s 65 is enlivened subject to consideration of ss 67, 135 and 137. 22 Section 67 provides: " 67 Notice to be given (1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64 (2) is such a provision—the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies." 23 It is here acknowledged by the Crown that it gave no notice of the intention to introduce the evidence the subject of the present application prior to the refusal of the witness to give evidence, although the Crown apparently informed counsel for the accused when asked shortly before this trial began that it was intended to call Shannon Styman early at the trial and if he refused to give evidence then an application would be made under s 65. The foundation for the application to introduce the evidence was not laid and could not be laid effectively before Shannon Styman was called, and having been called declined to give evidence. At that point, the accused were put on notice by the Crown that an application would be made pursuant to s 65. It seems to me in the circumstances that by then doing so the Crown effectively gave such notice as was reasonable, albeit not in written form. Mr Wendler very properly accepted this to be the position and could point to no prejudice by reason of the failure of the Crown to have given earlier notice. Mr Kumarasinhe did not seek to distance himself from that concession properly made. In the circumstances, I conclude that s 67 does not stand in the way of the Crown's application. I consider therefore that s 65(3) should apply subject to consideration of the discretionary exclusion provisions of the Act. Sections 135 and 137 24 Section 135 provides: " 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 25 Section 137 provides: " 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." 26 Both sections require the Court to consider the probative value of the evidence which the Crown now seeks to tender. 27 Part 1 of the Dictionary to the Act defines "probative value" in these terms: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 28 The evidence give by Shannon Styman at the earlier trial is evidence that goes directly to the involvement of the accused in the events that occurred at the home of the deceased on the occasion that her home was invaded, the robbery occurred and the deceased was left bound and gagged. In short, Shannon Styman's evidence previously given was to the effect that the three men went to the house together after the accused told him of a previous unsuccessful attempt that they had made to break into the home of the deceased. According to Shannon Styman, when the three men went to the house, entry was gained through the back door when the accused Peter Taber used a sawn-down key to open that door. His evidence was that Peter Taber told him his part would be to restrain the deceased whilst Peter Taber and Ian Styman found the money in the house. His evidence was that the three men wore gloves when they entered the house, that Peter Taber took some "ladies undies" off the clothesline and that these were used when gagging the deceased. He gave evidence describing how the three men participated in gagging and binding the deceased and he said that whilst he held her down on the bed, the accused now before the Court made a search. He gave evidence that one of the cable ties on the deceased's hand was too tight and he called Ian Styman back into the bedroom and one of the cable ties was cut off, being replaced by duct tape. He said he saw Ian Styman find a bag, a black purse and a brown paper bag that contained money. The money having been discovered, the men left the house leaving the deceased bound and gagged on the bed in her bedroom. 29 I have briefly summarised the previous evidence Shannon Styman gave on issues central to the Crown case against the present accused. 30 There can be no question as to the relevance of the evidence now sought to be introduced. Plainly, that evidence, if believed, could rationally affect the assessment of the probability of the existence of the relevant facts the evidence addresses. 31 Ultimately, it is a question of fact for the jury to determine what evidence it accepts and what evidence it rejects. In R v Carusi (1997) 92 A Crim R 52 Hunt CJ at CL, with whom the other members of the court agreed, expressed the opinion that it was not for the judge in assessing the probative value of evidence to determine whether the jury should or should not accept it. His Honour said in Carusi (at pp 65-66): "It was for the jury, and not for the trial judge, to determine the factual issues at the trial. Applying the ordinary tests, there was clearly a case to go to the jury based upon the evidence in chief of Mrs McHugh which (if that evidence were accepted) was a strong one, and it was for the jury to determine which parts of her evidence they accepted and which parts they rejected (Rothery (1925) 25 SR (NSW) 451 at 461; Jayasena [1970] AC 618 at 624; Haw Tua Tau v Public Prosecutor [1982] AC 136 at 150-151; Towers (1984) 14 A Crim R 12 at 15; R (at 81; 410-411); Doney (at 214-215; 162)). The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied — on the whole of the evidence — that the jury ought nevertheless have had a reasonable doubt (M (1994) 181 CLR 487 at 492-495; 76 A Crim R 213; McKnoulty (1995) 77 A Crim R 333 at 338-339)." 32 It is to be observed that in Carusi the court was concerned with the common law Christie discretion whereby the trial judge could exclude evidence where its prejudice to the accused outweighed its probative value. 33 In Li v The Queen (2003) 139 A Crim R 281 the Court of Criminal Appeal acknowledged the role of the jury in assessing evidence when considering whether error had occurred in allowing evidence notwithstanding s 137 of the Evidence Act. A number of factors were advanced in that case, said to affect the reliability of opinion evidence from an "ad hoc" expert. Those matters were regarded by the court as matters for the jury (see p 288 [45]-[46]; see also p 292 [77]-[78] where the like approach was taken concerning the evidence of another witness). 34 Conflicting views have been expressed by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 and by Gaudron J in Adam v The Queen (2001) 207 CLR 96 as to the appropriate approach in the consideration of "probative value" for the purposes of ss 135 and 137. 35 In Papakosmas McHugh J said (at 323 [86]): "Probative value is defined in the Dictionary of the Act as being 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. That assessment, of course, would necessarily involve considerations of reliability. 'Probative value' is an important consideration in the exercise of the powers conferred by ss 135 and 137. An assessment of probative value, however, must always depend on the circumstances of the particular case at hand." 36 In Adam v The Queen, Gaudron J said (at p 115 [60]): "The omission from the dictionary definition of 'probative value' of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition." 37 Evidence could rationally affect the assessment of the probability of the existence of a fact in issue only if it was accepted, and whether or not evidence is accepted is essentially a jury issue. However, it seems to me that there may be occasions in which a judge, when required to consider the application of s 137, may regard evidence sought to be introduced as incredible and for this reason such as ought not to be introduced: see as to this R v Cook [2004] NSWCCA 52. 38 On his own version of events, Shannon Styman was an accomplice and the jury would have to be given the customary warning that his evidence may be unreliable in the event that it is introduced. There is the further feature that he refused to give evidence at this trial and the jury had the opportunity of seeing him in Court in the course of this trial. They had the opportunity of observing him and his apparent contempt of Court whilst he was within the Court. That behaviour could be expected to have had an adverse effect on the jury's assessment of Shannon Styman. 39 On the other hand, there is circumstantial evidence which lends support to Shannon Styman's version of events. 40 There is the evidence of Mr Peake that he journeyed with the accused whilst they undertook what the jury could conclude was a recognizance exercise concerning 23 Spies Avenue. There was his further evidence that he saw them using ties of the type used to tie up the deceased when Mr Peake joined them in the room where, according to him, the accused were so engaged at the home of Mr Taber Snr. 41 Then there is the evidence concerning the financial position of each of the accused prior to the deceased being robbed. There is a significant body of evidence from which the jury could conclude that both men were extremely short of ready funds prior to the robbery. This is to be contrasted with the position after the robbery and there is evidence that each accused had significant resources of ready cash on 7 January 2001. There is evidence upon which the jury can conclude that the robbery took place early on that morning and it was later on that morning that both accused travelled to Sydney and used cash, including old notes no longer in circulation, to purchase motor vehicles. There is evidence from a number of sources that the deceased had a supply of old $100 notes. 42 There is evidence also that Leonie Ravell, with whom the accused Peter Taber was living, went on a shopping spree on and after 7 January 2001, buying white goods for the house and personal items for herself. She was observed to have a large number of banknotes in her wallet, such as prevented it from closing. 43 There is the evidence then of the discussion at 211 Old Southern Road about the lack of available money to finance the trip that had been planned to visit Queensland, and the discussion about seeking to borrow money from the deceased that was followed by the further discussion of which Donyelle Turner gave evidence. According to her, there was discussion that involved consideration of killing the deceased (T 291), although in cross examination Ms Turner said she did not take it seriously when Leonie had said, "We can always kill her." 44 There is the evidence that when the search warrant was executed at 211 Old Southern Road on 24 January 2001 black ties not dissimilar from those used to tie up the deceased were found as well as grey tape similar to that used in restraining the deceased. It is part of the Crown case that balls of scrunched up tape were found in the back of the accused Peter Taber's utility and it is the Crown case that blood was found on portion of this tape which matched the DNA profile of the deceased. 45 As against the accused Ian Styman, there is evidence that, according to his brother, Ian Styman approached him to inquire whether there was any way that John Styman, by reason of his volunteer position with the police force, could tamper with the DNA evidence if it came back positive. There is evidence from which the jury could conclude that it was Ian Styman that made the 000 call on the morning of 7 January 2001. 46 Further, the jury may well conclude that there was more than one offender involved in the commission of this crime. The way in which the deceased was bound and gagged is indicative of this. The accused were very close friends, and the evidence also indicates that Shannon Styman went where his uncle went. According to Leonie Ravell, both Stymans attended 211 Old Southern Road on the evening of 6 January 2003. She retired early and was asleep by about 8.30 pm. When she woke up it was obvious Peter Taber had not slept in their bed. He woke her early and they then set off with Ian and Shannon Styman to buy vehicles in Sydney. 47 Mr Peake's credibility is challenged and it may well be, of course, that there will be challenge to many of the links of the chain of circumstantial evidence as against each accused, but it seems to me the jury could regard circumstantial evidence which it can properly accept here as consistent with the evidence of Shannon Styman now sought to be introduced. The circumstantial evidence does not go to establishing that Shannon Styman's account of events was incorrect. Rather, it seems to me, the circumstantial evidence is substantially consistent with his version as to what occurred, and this is to be brought into account in considering the reliability of his version. 48 As I see it, the evidence sought to be introduced here could rationally affect the assessment of the probability of the existence of those relevant facts which Shannon Styman's testimony addresses. Hence, I am required to undertake the weighing process as expressed in Regina v Blick (2000) 101 A Crim R 326 at 332-333 [19]-[20]. There, Sheller JA said: "[19] When an application is made by a defendant pursuant to s 137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion: see the cases referred to by Priestley JA in Moran v McMahon at 716 and following, particularly Lee Transport Co Limited v Watson (1940) 64 CLR 1 at 13 and Miller v Jennings (1954) 92 CLR 190 at 197. In the second of those cases, Dixon CJ and Kitto J, in an appeal against damages awarded by the trial judge, said of the sum awarded that it was 'reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant'. Translated to the task set by s 137, a trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience. In that sense, the result can be described as analogous to a discretionary judgment: see Heydon, A Guide to the Evidence Acts (2nd ed, 1997), par 3.725. [20] Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected." The question of unfair prejudice 49 Plainly, any evidence which is inculpatory of an accused person is, in a sense, prejudicial to him. Sections 135 and 137 involve a concept of damage to the defence case in some unacceptable way. I refer to what was said by Wood CJ at CL in Suteski (supra) at p 199 [116]-[117]: "[116] As is now well established, the prejudice to the defendant of which each of s 135 and s 137 speak is not the simple fact that the evidence may advance the Crown case or weaken the defence case. Rather it means damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: R v Lisoff [1999] NSWCCA 364; see also R v Lockyer (1996) 89 A Crim R 457 at 460, Papakosmas v The Queen (1999) 196 CLR 297 at 325 [91] and R v Serratore (1999) 48 NSWLR 101 at 109 [31]. Dunford J there said that evidence is of this character, where it '... has only slight probative value but which carries with it a probability that it will be misused by the tribunal of fact in a way logically unconnected with the issues in the case'. [117] There must be more than a hypothetical risk of it being unfairly prejudicial in this way - the risk must be a real one: R v GK (2001) 53 NSWLR 317 at 324." 50 Mr Wendler in his submissions has referred to a number of matters of prejudice and Mr Kumarasinhe has adopted Mr Wendler's submissions in this regard. The matters put forward for consideration by counsel were these: (i) The accused will not be able to confront one of the most important witnesses in the case. Mr Wendler submitted: "It is fundamental in any criminal trial that the accused be permitted to confront his accuser and he [that is, Shannon Styman] is an accuser" (T 669); (ii) If Shannon Styman's version is to be introduced in the way in which the Crown seeks to introduce it, the jury will be deprived of the opportunity of assessing his demeanour; (iii) Shannon Styman is, on his own account, to be regarded as an accomplice and this, of course, raises the issue of unreliability; (iv) Mr Wendler submitted that although he had the opportunity of cross examining Shannon Styman at the earlier trial, he was prevented from cross examining him on his antecedents, and Shannon Styman has a significant criminal history, including offences of stealing motor vehicles and break enter and steal. Had Shannon Styman been called at the present trial, Mr Wendler could have cross examined him on his record, and this would have affected his credibility; (v) If Shannon Styman's version is admitted, the Crown will have the advantage of using that version against the accused for the purpose of cross examination, and the accused did not have a corresponding advantage when cross examining Shannon Styman in the previous proceedings. 51 As to (i), this is a consideration that would apply in any case where evidence is introduced pursuant to s 65(3). Yet, s 65 contemplates that evidence of the type here under consideration may be admitted into evidence subject to discretionary considerations. Obviously, each case has to be assessed by reference to its own particular features. At the earlier trial Shannon Styman was subjected to most searching cross examination by counsel for Peter Taber and counsel for Ian Styman. In his submissions, Mr Wendler modestly assessed his cross examination as "thorough". Indeed it was, and viewed in its totality the cross examination of Shannon Styman at the previous trial I consider to have been most searching. 52 As to (ii), whilst it is true that the jury at the present trial would not have the opportunity of assessing Shannon Styman's demeanour in the witness box, in particular under cross examination, the jury has had the opportunity of observing Shannon Styman when he did appear before the Court and did enter the witness box in the circumstances and on the occasion I have earlier reviewed. The jury had the opportunity to make some assessment of the demeanour of Shannon Styman, which they would be entitled to take into account in their deliberations. 53 As to (iii), the question as to the reliability of Shannon Styman's testimony must arise of course, but it would have done had he been called. The usual warnings would have had to have been given and in the event that Shannon Styman's previous evidence is introduced at this trial, the jury will have to be instructed as to the reasons why his evidence may be regarded as unreliable. 54 As to (iv), whilst Mr Wendler will have not the opportunity of cross examining Shannon Styman as to his antecedents, the jury will be alert, by reason of Shannon Styman's own account of his involvement in the events of 7 January 2001, to his own criminal behaviour on that occasion. Unquestionably, on his own account, his conduct constituted grave criminal misconduct. His prior criminal record would be unlikely to add to the impact of his misconduct on 7 January 2001 when the jury was considering the question of credibility. 55 As to (v), whilst the Crown would have available to it Shannon Styman's version of events upon which to cross examine the accused, the accused would have the advantage, in the event of a decision to give evidence, of knowing precisely what Shannon Styman's version was. Each accused would know to what extent the Crown would have the opportunity of cross examining by reference to that version. 56 I have considered the evidence which Shannon Styman gave at the earlier trial, and I have reflected upon the submissions advanced on behalf of the accused concerning ss 135 and 137. Mr Wendler acknowledged, to my mind correctly, that if the evidence was not to be excluded under s 137 it would not be excluded under s 135. Having reflected upon all the evidence thus far given at this trial, the content of Shannon Styman's version, and the concept of relevant prejudice as considered in the passage from Suteski cited above, I have concluded that the evidence here sought to be introduced should not be excluded under either s 135 or s 137 of the Evidence Act. I consider that the evidence ought to be admitted pursuant to s 65(3) of that Act. Section 65(6) facilitates proof of Shannon Styman's previous representations. They may be proved through the production of an authenticated transcript. 57 I propose to make a direction that no transcript of the evidence given by Shannon Styman in the earlier proceedings go into the jury room. It seems to me that I have a discretion to make such a ruling: see the discussion as to this in Regina v NZ [2005] NSWCCA 278 [183]-[190]. It seems to me that there would be the risk, assuming the accused give evidence, that if the jury had transcript of Shannon Styman's previous evidence but no transcript of the evidence of either accused, that undue weight might be given to what the jury had in writing before it. Had Shannon Styman given evidence at this trial, then, of course, the transcript of his evidence would not have gone before the jury, subject, of course, to any consideration of a request by the jury. 58 I propose therefore that the jury should be made aware of the evidence that Shannon Styman gave at the previous trial by having that evidence read to the jury. If, in the course of the deliberations of the jury, the jury wishes to hear that evidence again, it can be read to the jury in the same way as can any other evidence in the case, including evidence which either accused may give. 59 I propose to allow counsel the opportunity of making any submissions considered appropriate concerning the exclusion of some part or parts of the transcript of Shannon Styman's evidence which, of course, is lengthy, extending from T 2376-2614 of the evidence at the earlier trial. For instance, there is some reference to the issue of the sexual offence charged at the earlier trial which assumes no relevance for present purposes. I will entertain submissions at the earliest opportunity, and, plainly, this must be addressed at the very latest when all the other Crown evidence, apart from that the subject of this judgment, has been completed. ********** 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.