Supreme Court New South Wales Medium Neutral Citation: R v Hunter (No. 2) [2013] NSWSC 1806 Hearing dates: 13 November 2013 Decision date: 06 December 2013 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: 1. The objection by the Accused to the tender by the Crown of the contents of the statement of Wade Hunter dated 2 September 2011 is overruled. 2. The representations identified by the Crown in the statement of Wade Hunter dated 2 September 2011 satisfy the requirements of s.65(1) and (2) Evidence Act 1995. 3. The Accused's Notice of Motion filed on 28 October 2013 is dismissed. Catchwords: CRIMINAL LAW - murder - pretrial application to exclude evidence - statement of witness who has since died - exception to hearsay rule where witness unavailable - whether requirements of s.65(2) Evidence Act 1995 satisfied - whether evidence should be excluded under s.137 Evidence Act 1995 - requirements of s.65(2) established - evidence should not be excluded under s.137 Legislation Cited: Evidence Act 1995 Cases Cited: Festa v The Queen [2001] HCA 72; 208 CLR 593 Lee v The Queen [1998] HCA 60; 195 CLR 594 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 R v Cook [2004] NSWCCA 52 R v El Masri [2010] NSWSC 1277 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v Sio [2013] NSWSC 1412 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 Texts Cited: --- Category: Interlocutory applications Parties: Regina (Crown) Paul Andrew Hunter (Accused) Representation: Counsel: Mr RA Herps (Crown) Mr DL Carroll (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Shiranica Danieli Lawyers (Accused) File Number(s): 2011/397367 Publication restriction: --- Judgment 1JOHNSON J: The Accused, Paul Andrew Hunter, is charged with the murder of Jason Dixon at Dharruk on 23 June 2011. Nature of the Application and the Issues For Determination 2This is an application by the Accused to have excluded from evidence at his trial, previous representations contained in a witness statement of his deceased brother, Wade Hunter. 3By Notice of Motion filed 28 October 2013, the Accused seeks orders in advance of the trial under s.192A Evidence Act 1995 ("the Act") that the previous representations are not admissible or, in the alternative, that their admission into evidence be refused under s.137 of the Act. The Notice of Motion had also sought the exclusion of other evidence in the proceedings. However, that portion of the application was abandoned at the hearing. 4The relevant previous representations were made in a witness statement, given by Wade Hunter to police on 2 September 2011. The version of events given in the witness statement implicates both the Accused and Wade Hunter in the murder of Jason Dixon. Wade Hunter is now deceased and, consequently, unavailable to give evidence. Evidence of those representations is sought to be adduced by the Crown pursuant to s.65(2)(d) of the Act in the form of the document signed by Wade Hunter. 5Section s.65(2)(d) of the Act provides an exception to the hearsay rule, and is in the following terms: "(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: ... (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. Note. Section 67 imposes notice requirements relating to this subsection." 6A representation will be taken for the purposes of s.65(2)(d) to be against the interests of the maker of the representation if it tends "to show that the person has committed an offence for which the person has not been convicted": s.65(7)(b). 7The precondition in s.65(1) is clearly established in this case as the maker of the representations is deceased. 8Further, during the course of the hearing, it was conceded by counsel for the Accused that the previous representations of Wade Hunter were made against his interests. As will become clear, this concession was plainly appropriate having regard to the version of events given by Wade Hunter to police on 2 September 2011. Thus, the requirement in s.65(2)(d)(i) is also established. It follows, therefore, that the primary issue in contention on this application is whether Wade Hunter's representations to police in his witness statement were made in circumstances that make it likely that the representations are reliable for the purpose for s.65(2)(d)(ii). Factual Matters 9It is useful to set out the factual context in which this application is brought. Only those facts that are relevant to the present issue are contained below. 10During the afternoon of 20 June 2011, the Accused was present, along with a number of other persons, at the residence of Bernard Douglas at 9 Livingston Avenue, Dharruk. Jason Dixon was also present at this location for a period. At some point during the afternoon, several witnesses observed Mr Dixon strike the Accused across the back of the head with an object. No further physical altercation appears to have taken place at this time. Mr Dixon returned to his home, located across the road. 11The Accused left the premises of Mr Douglas shortly thereafter. He obtained a lift with an associate to Mt Druitt, where he is observed on CCTV at a grocery store and a nearby pharmacy at 5.52 pm. The Accused then attended the residence of his brother, Wade Hunter, at 4 Torricelli Avenue, Whalan. The Accused's cousin, Gary Hunter, was also present. 12At 6.42 pm on 20 June 2011, the Accused was observed on CCTV arriving at Mt Druitt Hospital in a white Commodore motor vehicle belonging to Wade Hunter. The Accused was treated by nursing staff and released. 13At about 7.00 pm on 20 June 2011, Jason Dixon's son, Troy Gardner, arrived at Mr Dixon's residence and observed his father lying on the floor of the lounge room, bloodied and barely conscious. Mr Gardner dialled triple "000" and an ambulance attended the premises at 7.23 pm. Jason Dixon died on 23 June 2011, the cause of death being multiple blunt force injuries to the head, abdominal cavity and limbs. 14The Accused was arrested in relation to the death of Jason Dixon at the residence of Wade Hunter on 21 June 2011. 15The Crown case against the Accused is that he participated solely or as part of a joint criminal enterprise in an attack upon Jason Dixon, with an intention, at least, to inflict grievous bodily harm as an act of revenge for the earlier incident at 9 Livingston Avenue, Dharruk. Wade Hunter's First Statement 16Wade Hunter was interviewed by police on 21 June 2011. He also gave a statement attesting to the accuracy of his answers in the interview. 17According to Wade Hunter's account in his third statement of 2 September 2011, the version of events given by him on this occasion was false. He told police the Accused had arrived at his house between 7.00 pm and 7.30 pm, complaining of a sore head and asking to be taken to the hospital. The Accused apparently did not say by whom he had been struck. Wade Hunter told police that he took the Accused to Mt Druitt Hospital, dropping the Accused off and then returning home. He said the only other person in the car was his son, Tyrel. At the time of giving the interview, Wade Hunter knew the Accused had been arrested but told police that he did not know why. Wade Hunter's Second Statement 18Wade Hunter gave a second statement to police on 22 July 2011. In this statement, he largely adopted the version of events given in his statement of 21 June 2011, with additional details. Wade Hunter's Third Statement 19On 2 September 2011, Wade Hunter was in custody at the Mt Druitt Police Station, having been arrested in relation to matters not relevant for present purposes. 20Also present at the Mt Druitt Police Station that day was Detective Sergeant Gary Lowe. Detective Sergeant Lowe was then investigating the death of Jason Dixon and was aware of prior statements given by Wade Hunter. Detective Sergeant Lowe was made aware that Wade Hunter wanted to speak with him. He proceeded to see Wade Hunter in an interview room at the Mt Druitt Police Station where Wade Hunter said words to the effect of, "I can't live with it anymore, I've got to tell you what happened but if you can get me bail I can show you where the weapons are". Detective Sergeant Lowe said, "I'll try and get you bail but I can't guarantee anything". A Detective Tillett was present also during this conversation. The conversation was not recorded in any way. 21Detective Sergeant Lowe spoke with the Bail Sergeant at Mt Druitt Police Station and inquired as to the possibility of Wade Hunter obtaining conditional bail for the purpose of assisting in the murder investigation. However, it became apparent that the warrant pursuant to which Wade Hunter was arrested required him to go before a court to obtain bail. Upon conveying this information to Wade Hunter, Detective Sergeant Lowe observed Wade Hunter to be quite upset and crying. He said, "You've got to get me bail". It was suggested by Detective Sergeant Lowe that if he directed police to the location of the weapons and police verified that information, that might be something that could assist Wade Hunter in his bail application. Detective Sergeant Lowe acknowledged that he made it clear to Wade Hunter that there would be a benefit to him in assisting the police. Again, this conversation was not recorded. 22Detective Sergeant Lowe spoke with the police prosecutor who would be appearing in court at the bail application and requested that Wade Hunter be given conditional bail to allow him to assist in the police investigation. Despite this, Detective Sergeant Lowe could not recall if a formal document was prepared for the presiding Magistrate. 23Wade Hunter was granted bail in the Mt Druitt Local Court later that afternoon. Detective Sergeant Lowe did not attend the bail application. 24Wade Hunter then participated in a drive-around with police to locate weapons referred to by him in his earlier discussions with Detective Sergeant Lowe. Upon returning to the police station, Wade Hunter gave a third statement to police. It is representations contained in this statement (dated 2 September 2011) that the Crown seeks to tender at the trial of the Accused. 25In his third statement, Wade Hunter resiled from his earlier account. He gave a version of events that implicated not only the Accused, but also himself in the attack upon Jason Dixon. The representations made by Wade Hunter to police in the statement of 2 September 2011 now relied upon by the Crown may be summarised as follows: (a)The Accused came to his home on 20 June 2011 about half an hour before he dropped the Accused at Mt Druitt Hospital (based on the footage captured on the hospital's CCTV cameras, this had to have occurred at about 6.00 pm). (b)The Accused said, "Can you drive me up to Bernie's I want to get three bottles of methodone [sic] and a script of Xanax". (c)As they were leaving, Gary Hunter arrived. The Accused instructed Gary Hunter to "get in the fucking car and grab a [weapon]". Gary Hunter picked up a fence pole from Wade Hunter's front yard and entered the vehicle. (d)The Accused said, "Where [sic] gunna kill this cunt if he don't give me my methadone". (e)The Accused directed Wade Hunter to drive to a specified location. On the way there, the Accused said to Gary Hunter, "You look after the young cunt and I will look after the old cunt". (f)Upon arrival at the location, the Accused and Gary Hunter exited the vehicle and the Accused removed an implement similar to a ratchet wrench from his jacket. The implement was 30-40 cm long and was rusted. (g)The Accused and Gary Hunter left the location for a period of about three minutes and then returned. Upon returning, the Accused was in possession of a black bum bag. (h)The Accused then said, "Fuck I forgot me Coke". The Accused ran back in the same direction as before, returning shortly afterward with a can of Coca Cola. The Accused said, "Lucky I got my fingerprints out of there ... He is in there laying down knocked the fuck out so I wiped the screen door and the wooden door". (i)The Accused then asked to be taken to the hospital. (j)On the way to the hospital, Gary Hunter told the Accused, "He won't be waking up nephew". (k)Before arriving at the hospital, the Accused and Gary Hunter needed to discard their weapons. They drove to Welwyn Street, Hebersham and the Accused placed the wrench and the bum bag in a storm water drain. They then drove to Bambara Crescent, Whalan and Gary Hunter threw his fence pole in a storm water drain at that location. (l)Wade Hunter then dropped the Accused at Mt Druitt Hospital and returned home, arriving home at about 7.00 pm. (m)During a visit to the Accused at the Silverwater Correctional Centre about three weeks after 20 June 2011, the Accused told Wade Hunter that, "I've got nothing to worry about I never killed him". The Accused then asked, "Where are the [weapons]?", to which Wade Hunter replied, "You chucked them away". The Accused said, "The only way I will get done is if you fucking tell them or tell em where the [weapons] are". Wade Hunter replied, "Don't worry I haven't moved them". 26Wade Hunter's representations as to his subjective state of mind at the time of the events on 20 June 2011 were that he believed the Accused was going to the home of a person named "Bernie" to obtain methadone and Xanax. He did not disclose any knowledge of the Accused having been struck on the head earlier in the afternoon, nor of any attempt by the Accused to exact revenge upon the person who struck him. Submissions of the Parties Submissions on Behalf of the Accused 27Mr Carroll submitted for the Accused that, having regard to the circumstances in which Wade Hunter made the previous representations now relied upon by the Crown, the Court could not find it likely that they were reliable. 28There were a number of matters relied upon by Mr Carroll in support of this submission. Counsel submitted that Wade Hunter was in a distressed state at the time of making his statement. He was in custody and his liberty was dependent on his assistance to police. Thus, he was motivated in a significant way by a desire to obtain bail. Counsel relied upon observations of Detective Sergeant Lowe given in his evidence at the Accused's committal. Detective Sergeant Lowe said that Wade Hunter appeared at the relevant time to be upset and crying. Counsel also submitted that Wade Hunter's criminal antecedents disclosed a history of violent offending, the effect of which was that Wade Hunter was potentially facing a lengthy custodial sentence in respect of the matters for which he was arrested on 2 September 2011. 29It was also submitted that Wade Hunter was affected by drugs at times contemporaneous to the making of his statement of 2 September 2011, and that this was a factor bearing on the circumstances in which the statement was made. Wade Hunter's partner, Sabrina Ellingsworth, gave a statement to police as part of the investigation into Jason Dixon's death (dated 10 January 2012). In that statement she referred to events that took place on 1 and 2 September 2011, recounting in part: "Around the 1 or 2 September 2011 I had an argument with Wade over singing over the car. He was on the drugs and carrying on. He ended up threatening to kill us and I called the police on him. He got locked up and he stayed away for about 3 weeks I remember he was home for the NRL Grand Final because he slept all day after drinking the night before, he only woke up just as the game finished. I'm not sure how long he stayed home for but I kicked him out again about a week before he passed away." 30Also bearing on the circumstances of the making of the statement, counsel for the Accused pointed to the prior inconsistent statements given by Wade Hunter in this matter. It was submitted that he had committed himself to a version of events different to that which he sought to assert on 2 September 2011. This, counsel submitted, demonstrated contempt on the part of Wade Hunter towards his obligation to tell the truth, thus bearing directly on the reliability of the 2 September 2011 statement. 31Finally, it was asserted that Wade Hunter knew police could link him to the movements of the Accused on 20 June 2011, he having told police he drove the Accused to the hospital, with the CCTV footage confirming it was his vehicle. It was suggested that this was a factor also bearing on the circumstances in which the representations were made. 32Tendered by the Crown on the present application was the evidence given at committal by Gary Hunter. This evidence corroborated aspects of the account given by Wade Hunter in his statement of 2 September 2011, namely the use of weapons and the disposing of those weapons. Counsel for the Accused submitted that, having regard to the authorities concerning what material is available for the determination of the reliability of the previous representations, the evidence of Gary Hunter cannot bear in any way on the circumstances in which Wade Hunter made his statement of 2 September 2011. 33There was another matter raised by counsel for the Accused at the hearing of the application that is somewhat distinct from the s.65(2)(d) issue. In relation to portions of Wade Hunter's statement of 2 September 2011 where the witness purports to recount comments made by the Accused to him, counsel submitted that these constitute second-hand admissions. It was submitted that they ought be excluded by operation of s.62 of the Act and the principles in Lee v The Queen [1998] HCA 60; 195 CLR 594. Submissions of the Crown 34The Crown submitted that, at the time Wade Hunter made his statement on 2 September 2011, he was not a suspect in the investigation into Jason Dixon's death. Therefore, he had nothing to gain by establishing the Accused's guilt. In fact, the Crown suggested that there was very little actual benefit derived by Wade Hunter from the offering of his assistance. There was no monetary award, and there was little evidence to indicate that his offer of assistance directly resulted in a grant of bail. Whilst the Crown accepted that Detective Sergeant Lowe spoke with the police prosecutor in advance of the bail application, it was submitted that there was no evidence of a letter or any documentation provided by Detective Sergeant Lowe to the presiding Magistrate. 35In aid of its submission as to the reliability of the previous representations, the Crown pointed to the fact that the weapons described by Wade Hunter were, in fact, found in the locations specified by him. Photographs were tendered at the hearing of the application depicting the weapons in the relevant locations. A black bum bag containing the personal papers of Jason Dixon was also found at the location specified by Wade Hunter. The statement of Detective Leading Senior Constable Greg Griffin, who attended the drive-around, was also tendered. This, it was submitted, lent validity to the version of events given by Wade Hunter in his statement of 2 September 2011. 36In relation to the suggestion on behalf of the Accused that Wade Hunter was affected by drugs at the time of making his statement on 2 September 2011, the Crown submitted that a fair reading of the statement in its entirety reveals a rational, coherent sequence of events. It was submitted that there was no evidence of Wade Hunter labouring under the effect of drugs. 37As stated at [32] above, the Crown sought to rely on the evidence of Gary Hunter at the Accused's committal. It was submitted that this evidence was a matter the Court could take into account in assessing the reliability of the representations made by Wade Hunter. 38In respect of the submission put on behalf of the Accused that certain comments made by the Accused to Wade Hunter were inadmissible second-hand admissions, the Crown submitted that the relevant comments are properly characterised as either direct evidence of Wade Hunter or contemporaneous statements about the Accused's knowledge or state of mind, admissible pursuant to s.66A of the Act. Resolution of the Primary Issue 39As stated at [8] above, the primary issue on this application is whether the representations of Wade Hunter in his statement of 2 September 2011 were made in circumstances that make it likely that the representations are reliable. I move now to a determination of that issue. 40The focus of this question is the "circumstances" in which the representations were made. This concept was considered in R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 at 609-616 [15]-[37]. After reviewing the authorities at 615 [29], Mason P (RS Hulme and Simpson JJ agreeing) observed that: "...it does not necessarily follow that evidence of events other than those of the making of the previous representation cannot throw light upon the circumstances of the making of that representation and its reliability as affected thereby. Events subsequent to the representation being made might do this, for example a (genuine) express retraction by the maker of the previous representation, or evidence indicating that the person who made the previous representation was incapable of having heard or seen the matter which was the subject of the previous representation.." 41Thus, the concept of "circumstances" is not a narrow one. In assessing the present question, I am entitled to consider evidence of matters having occurred before or after the making of the previous representations, so long as they are relevant to the circumstances in which the representations were made. 42The previous representations relied upon must be considered in context and as a whole: R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at 196 [93]. 43The previous representations relied upon by the Crown fall into two categories. Firstly, they include representations about things Wade Hunter did and observed others doing. Secondly, they include things allegedly said to Wade Hunter by the Accused. The fact in issue in the proceedings to which these representations are said to go is the involvement of the Accused in the attack upon Jason Dixon that resulted in the latter's death. The evidence conveyed by the representations is clearly probative of that fact. The witness observed the Accused in possession of weapons and the bum bag. He also heard the Accused make significant admissions as to his involvement in a crime. 44The circumstances of the making of Wade Hunter's statement of 2 September 2011 include the following. He was in custody in relation to an unrelated matter and was apparently in an agitated state. His liberty was compromised and he had expressed a degree of desperation about obtaining bail. True it was that he attempted to bargain with police officers in this respect. There is also a suggestion he was affected by drugs at the relevant time. Further, I am required to take into account the fact that earlier statements made by him contradict the version he settled with on 2 September 2011. I also note that Wade Hunter was not formally cautioned in respect of the comments he was to make concerning the investigation into Jason Dixon's death and it has not been suggested by either counsel that he perceived himself to be a suspect in that investigation. Notwithstanding this, he clearly knew police could link him to the Accused's movements on 20 June 2011 through the use of his motor vehicle. I consider these to be the circumstances of the making of the previous representations relied upon by the Crown. 45The Crown concedes that there was at least a discussion between Detective Sergeant Lowe and the police prosecutor in respect of the Accused's bail application. The evidence of Detective Sergeant Lowe at the committal indicates that he advocated for the utility of Wade Hunter being released on bail, for the purpose of his assistance in the investigation then being undertaken into Jason Dixon's death. It remains, however, that no evidence has been furnished of any documentation that was provided to the presiding Magistrate in support of this. 46There is significant persuasive force in the fact that Wade Hunter not only recounted a version of events, but was also able to take police to locations were weapons were allegedly discarded by the Accused and Gary Hunter. Photographs of the relevant weapons in the locations disclosed by Wade Hunter were tendered on the application. This material bears on the circumstances in which the statement of Wade Hunter was made, being objective evidence obtained shortly prior to the statement of witnesses which corroborates a significant aspect of the version of events given. 47As regards the question of whether Wade Hunter was drug affected at times contemporaneous to the making of his statement on 2 September 2011, the available evidence is tenuous. The only material on which such an assessment could be made is a brief description, given by Ms Ellingsworth in her statement of 10 January 2012, of an incident during which Wade Hunter was said to be "on the drugs". This was said to have occurred "around ... 1 or 2 September". The lack of specificity as to when this occurred, exactly what Wade Hunter was affected by and the extent to which he was affected, render this evidence of little assistance. Moreover, Detective Sergeant Lowe's observations of Wade Hunter at the Mt Druitt Police Station on 2 September 2011 do not assist the Accused. His evidence was that Wade Hunter was in a distressed state. Had Detective Sergeant Lowe harboured a suspicion that Wade Hunter was affected by drugs at the relevant time, this would likely have been documented in his statement. Further, I accept the Crown's submission that a fair and full reading of Wade Hunter's statement of 2 September 2011 discloses a relatively coherent and lucid account of what took place. 48It was submitted by counsel for the Accused that Wade Hunter's prior inconsistent statements in this matter detrimentally affect the reliability of the representations relied upon by the Crown. In R v Ambrosoli at 616 [36], Mason P stated that evidence of prior statements can be a matter bearing on an assessment of the circumstances in which previous representations are made. However, his Honour continued (at 616 [36]): "I would, however, emphasise that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2). 49I am satisfied that the earlier inconsistent statements of Wade Hunter of 21 June 2011 and 22 July 2011 go to more than simply addressing the asserted fact. They demonstrate a consciousness on the part of the witness to minimise his involvement in the activities, and a concerted effort to conceal crimes he suspected to have taken place. I do not, however, consider that prior inconsistent statements automatically render it unlikely that the statement of 2 September 2011, in the circumstances in which it was made, was reliable. It is not uncommon in criminal trials for witnesses to give a version of events, having resiled from an earlier account. Ordinarily, the witness would be cross-examined on the earlier inconsistencies. Whilst Wade Hunter is not available for cross-examination, that does not preclude the tendering of the earlier inconsistent statements, and submissions being made to the jury as to the credibility of Wade Hunter as a witness. Furthermore, as I have already stated, there is objective evidence regarding the location of weapons and the bum bag that heavily supports the version of events given on 2 September 2011. 50Further, I am not persuaded that Wade Hunter's criminal antecedents bear in any probative way upon the present application. The assessment I am required to undertake is not one of the credibility of the relevant witness. That remains the task of the jury: R v Sio [2013] NSWSC 1412 at [54]; referring to R v Cook [2004] NSWCCA 52 at [43]; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at 236-237 [56]. The present question is whether the circumstances in which the representations were made render it likely that they are reliable. 51Counsel for the Accused did not articulate exactly how he relied on the witness' criminal record. It is difficult to see how a history of crimes of violence necessarily affects the circumstances in which Wade Hunter made his statement on 2 September 2011. That Wade Hunter knew he had a record and, thus, was potentially facing a serious sentence in respect of the matters for which he was in custody on 2 September 2011 may provide motivation for him to offer assistance to police - to obtain a more favourable outcome if and when he came to be sentenced for those matters. However, this, of itself, does not undermine the reliability of what he told police in providing assistance. 52The Crown has tendered on this application the evidence of Gary Hunter at the Accused's committal. This material is, in part, corroborative of the version of events given by Wade Hunter on 2 September 2011. Counsel for the Accused submitted that this was not material capable of bearing on an assessment of the circumstances in which the previous representations presently under consideration were made. 53I accept the Accused's submission on this aspect. In R v El Masri [2010] NSWSC 1277 at [22], Hoeben J (as his Honour then was) said the following: "In support of the proposition that the representations were admissible, the Crown pointed to evidence from other witnesses which was corroborative of the representations. In that regard, I agree with the submission of the defence that evidence going only to the reliability of the asserted fact is not the sort of evidence contemplated by s 65(2)(d)(ii) of the Act. What the section is directed to is whether the circumstances in which the representations were made, rendered it unlikely that the representations were fabrications (R v Ambrosoli [2002] NSWCCA 386 at [28-41]). Nevertheless, all that needs to be established is that 'the circumstances make it likely'. This, of course, is to be contrasted with the requirement in s 65(2)(c) of 'high probability'.." 54Here the asserted facts are that, on 20 June 2011, the Accused armed himself and Gary Hunter with weapons, that he directed Wade Hunter to drive to a certain location and that, after leaving for a short time, he returned and the weapons were then discarded in storm water drains. The relevance on this application of the evidence of Gary Hunter at committal goes only to corroboration of aspects of this evidence and, thereby, the reliability of the asserted facts. The Crown did not submit that another use may be made of that material. Therefore, I do not consider that it should bear on my assessment. 55As part of the task required under s.65(2)(d), I have had regard for the fact that Wade Hunter was potentially criminally involved in the events of 20 June 2011. By his own account, there were questions as to his liability as an accessory both before and after the fact to the attack on Jason Dixon. I accept that his various statements contain a degree of minimisation of his role in the events. Nevertheless, Wade Hunter was never charged with any offences arising from the investigation into Jason Dixon's death. In fact, it does not appear as though it was ever communicated to him that he was a suspect. Accordingly, it does not appear that there was anything to be gained by him in inculpating his brother, given the risk of adverse consequences for himself. 56I turn to the issue raised by counsel for the Accused with respect to what he described as second-hand admissions in the statement of 2 September 2011. In my view, comments made by the Accused to Wade Hunter on 20 June 2011 tending to inculpate him are not properly characterised as second hand. Were he available, it would be appropriate for the Crown to adduce evidence of those admissions through him. That he is unavailable to give evidence does not make his evidence second hand. By operation of s.65(2), any admissions contained in Wade Hunter's statement of 2 September 2011 are admissible accounts of what he saw and observed. I do not consider that Lee v The Queen bears on this question. Further, I accept the Crown submission that s.66A of the Act supports the Crown on this issue. 57The assessment to be undertaken by me requires a balancing of all material bearing on the circumstances in which the previous representations were made. In my view, the representations relied upon by the Crown are admissible under s.65(2)(d) of the Act. I am satisfied that, having regard to the circumstances in which they were made, it is likely that the representations are reliable. Consideration of Section 137 58Having found the previous representations contained in Wade Hunter's statement of 2 September 2011 admissible pursuant to s.65(2)(d), there remains the question of whether they ought nevertheless be excluded under s.137 of the Act. 59Section 137 states as follows: "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." 60The probative value of the representations contained in Wade Hunter's statement of 2 September 2011 is substantial. It corroborates important aspects of the account given by Gary Hunter. The evidence of Wade and Gary Hunter together is most important evidence in support of the Crown case that the Accused was involved in the attack on Jason Dixon. Additionally, the evidence comes from the Accused's own brother. If accepted by the jury, this fact alone may render the evidence of great weight: R v El Masri at [36]. 61Further, the account of Wade Hunter places the Accused in possession of the black bum bag (later found to contain Jason Dixon's personal papers) on the night of 20 June 2011. This, in conjunction with the fact that Wade Hunter took police to locations where this and the weapons allegedly used on 20 June 2011 were discarded, is highly probative of the Accused's involvement in the attack. Finally, the statement of 2 September 2011 contains a number of significant admissions made by the Accused. 62Courts have repeatedly recognised that the unfair prejudice spoken of in s.137 is not simply the tendency of admissible evidence to inculpate an accused person: Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325 [91]; Festa v The Queen [2001] HCA 72; 208 CLR 593 at 603 [22]. The operative term is "unfair". This requires a real risk that the evidence will be misused by the jury in some unfair way. 63Counsel for the Accused submitted that a forensic advantage was lost by Wade Hunter not being available for cross-examination. This is a factor which may properly be taken into account for the purpose of s.137. However, the fact that an accused person is unable to cross-examine a Crown witness is not decisive in the assessment that must be undertaken: R v Suteski at 201 [126]. It may be taken that Gary Hunter will be available for cross-examination. Further, the earlier inconsistent statements of Wade Hunter will be available to the Accused for tender. 64I am not satisfied that the very substantial probative value of the representations contained in Wade Hunter's statement of 2 September 2011 is outweighed by any danger of unfair prejudice. I have kept in mind the usual directions that are given to a jury in relation to evidence of this sort. Such directions will ordinarily address: (a)the fact that Wade Hunter is someone who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings: s.165 of the Act; (b)the fact the evidence will be untested in cross-examination: El Masri at [38]; Suteski at 201-202 [130]-[131]; (c)the fact that benefits may potentially have been received for the giving of the evidence. 65Accordingly, I refuse to exclude the evidence under s.137 of the Act. Orders 66For these reasons: (a)I overrule the objection by the Accused to the tender by the Crown of the contents of the statement of Wade Hunter dated 2 September 2011; (b)I rule that the representations identified by the Crown in the statement of Wade Hunter dated 2 September 2011 satisfy the requirements of s.65(1) and (2) Evidence Act 1995. (c)the Accused's Notice of Motion filed on 28 October 2013 is dismissed. ********** 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: 03 September 2014