Supreme Court New South Wales Medium Neutral Citation: R v Ian DACEY; R v Lee DACEY (No 2) [2013] NSWSC 1876 Hearing dates: 22 November 2013 Decision date: 25 November 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: Reasons published 29 November 2013 Catchwords: EVIDENCE LAW - application to cross-examine witness pursuant to s 38 Evidence Act 1995 - witness made prior inconsistent statement - whether probative value of evidence outweighs danger of unfair prejudice - whether recounting of conversation exact - credibility finding of witness on voir dire - Crown Prosecutor permitted to cross-examine - evidence not excluded Legislation Cited: Evidence Act 1995 Cases Cited: Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Category: Procedural and other rulings Parties: Regina Ian Dacey Lee Dacey Representation: Counsel W Creasey (Regina) T Hoyle SC (Ian Dacey) D Yehia SC (Lee Dacey) Solicitors: Solicitor for Public Prosecutions (Regina) Armstrong Solicitors Pty Ltd (Ian Dacey) Mandy Hull & Associates (Lee Dacey) File Number(s): 201/333188; 2011/356716 Publication restriction: Not to be published until after verdicts Judgment 1On 22 November 2013 I gave a ruling with regard to an application by the Crown Prosecutor to question a witness about whether she had made a prior inconsistent statement. At the time, due to the exigencies of the situation, and in order to permit the smooth running of the trial, I indicated to the parties that I would provide my ruling on that day, but give my reasons as soon as possible thereafter. The following are those reasons. 2An application has been made by the Crown Prosecutor to cross-examine a witness, Ms Rachael Ella Caldwell, who had been called in the prosecution case. The application is founded on s 38 of the Evidence Act 1995 ("the Act"). The relevant portions of the section are 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: ... (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. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). ..." 3The application for leave also gives rise to consideration of s 192 of the Act, which is as follows: "192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." Background 4The two accused are on trial for the murder of the deceased. The Crown case is that Ian Dacey stabbed the deceased and injured his heart, thereby causing his death. The Crown case is that Lee Dacey was complicit in that crime. Ian Dacey does not dispute that he stabbed the deceased, and Lee Dacey does not dispute that he was present at the time. Various issues have already been raised by the evidence or the parties, including whether the Crown can prove beyond reasonable doubt causation, absence of self-defence or defence of another on the part of Ian Dacey, and complicity (on a number of different bases) against Lee Dacey. Chronology relevant to the application 5The stabbing occurred on the morning of 10 August 2011. 6It is the Crown case that, on the same morning, the two accused men attended the home of the witness. 7On 22 September 2011, the witness gave a statement to police with regard to the attendance of the two accused at her home. In that statement she quite consciously left out certain information for a number of reasons. Her main reason "for not disclosing this information was out of fear for my safety. I live by myself and I know that these two males are of questionable character and associate with people who could be easily persuaded to take some from [sic] of retribution against me for speaking to the Police. I was genuinely concerned for my safety when speaking to the Police and still hold some fears for my safety. Since making the first statement to Police, people have warned me of possible consequences of speaking to Police and to be careful. This also caused me to have fears for my safety." 8On 6 October 2011, the witness engaged in a video identification parade. A photograph of Lee Dacey was contained in the array. The witness recognised a photograph of Lee Dacey, but deliberately "did not select his image, again worried about repercussions which may result from assisting Police". 9On 24 October 2011, the witness engaged in a further identification parade, and did not select any person. At that stage she was acting honestly. 10On 6 February 2012, the witness provided a further statement to police that became Crown voir dire exhibit J. The statement contained the usual first paragraph with regard to its accuracy, the preparedness of the witness to give evidence in accordance with it, the fact that the statement was true to the best of her knowledge, and her awareness that she could be prosecuted if the statement were tendered in evidence and she had wilfully stated anything that was false. 11Paragraphs 4, 11 and 12 of that statement provide the bases for some of the foregoing propositions in this chronology. 12The statement contains the following: "6. When Ian and Easy arrived at my house and I let them inside both of them were heavily affected by drugs. Me, Lee and Easy where [sic] sitting in my living room around the coffee table. I saw that Easy had blood on the sleeve of his long sleeved top. I can't remember what type of top he was wearing. They were both fairly agitated and told me that they had taken some 'Rivitril'. Whilst sitting at the table Lee told me that they had been ripped of $300.00 dollars by a drug dealer in Hamilton South and there had been an altercation with him as a result of that. Lee told me that Easy got into a fight with the drug dealer and Lee had got involved. During the conversation the fact that Easy had blood on his sleeve [sic] and Lee told me that Easy had cut himself during the fight with the man at Hamilton South. Lee was doing most of the talking. I started to try and get ready for work and Lee and Easy where [sic] talking but I really didn't hear what they were saying. Whilst this was happening I went into my bedroom and told my ex partner, Richard White, not to come out, because I didn't want him to be confronted by Lee and Easy, so he stayed in our bedroom. 7. I got them both a cup of tea and a biscuit and both of them rambled on incoherently and didn't make sense. I had to go to work so I told them that they had to go. Lee asked me if I had any pot (cannabis). I wanted to get both of them out of the house because I was scared so I gave Lee a small amount of pot in some paper and handed it to Lee. His [sic] seemed to make them happy so they left. I think that they both came to my house because they wanted to smoke some drugs at my house but I didn't want them to and gave them a small amount of pot wrapped in paper to get rid of them. I definitely did not place the small amount in any type of plastic bag or resealable bag, it was wrapped in paper." (emphasis added) 13The bolded portions of paragraph 6 are the subject of the application under consideration. 14On 4 October 2012, the witness gave evidence in committal proceedings relating to the two accused. A portion of the transcript of the evidence became defence voir dire exhibit 2. It was as follows: "Q. Had you consumed any cannabis that morning? A. Possibly. I think probably a little bit, yeah. Q. When you say 'possibly', do you remember specifically or not? A. I'd say there's a fairly good chance I did but I can't remember specifically, you know. Q. Is that because you often consume cannabis of a morning at or about that time? A. No. It's simply that I don't clearly remember the events of the morning." 15On 22 November 2013, the witness gave evidence in the trial before the jury and me. 16At an early stage of examination-in-chief, the following exchanges occurred: "Q. Now, in relation to Ian, can you recall now what he was wearing? A. No, sorry. Q. Did you notice anything about him at that stage? A. Not really, no. Q. What do you mean by "not really"? A. I was fairly preoccupied, the reason I was up at that time was I was getting ready for work and I was in a hurry so I was a little preoccupied, from what I remember. ... Q. And did he say much to you, was there much conversation between you and Ian while he was in your lounge room area? A. No, not really no. Q. Did you offer them something, some tea or coffee or something like that? A. Yes, I made tea and I brought cookies out. ... Q. Was there any conversation about what took place when they were at Hamilton South? A. No. Q. Was there any conversation about anything happening while they were at Hamilton South? A. No. Like I said I was getting ready for work and I was pretty busy. Q. Was there any conversation about how this little bit of blood happened to get on to Ian's sleeve? A. Not really, but I believe it-- HIS HONOUR: One moment. WITNESS: Sorry, sorry. I-- HIS HONOUR All right, your answer is "not really". Yes Mr Crown. CROWN PROSECUTOR Q. When you say "not really", did either of them say anything about that? A. Like I said, it was quite hard to comprehend any kind of conversation so I was mainly just getting ready for work." 17After the application was made by the Crown Prosecutor, a voir dire was conducted. It was originally directed only towards determining with clarity the evidence the witness would give if leave were granted for the prior inconsistent statement, said to be contained in paragraph 6 of voir dire exhibit J, to be put to her in cross-examination by the Crown Prosecutor. In light of the evidence that the witness gave on the voir dire, objection was subsequently taken with regard both to the admissibility of the prior inconsistent statement, and also with regard to whether I should reject it in the exercise of my "discretions". 18In examination-in-chief on the voir dire, the following exchange occurred: "Q. Now after that there are [sic] some typing which reads "Whilst sitting at the table Lee told me that they had been ripped of $300 by a drug dealer in Hamilton South and there had been an altercation with him as a result of that"? A. Yes. Q. What I would ask you to do please, firstly, is it the case that you had been told by Lee Dacey that that's what happened? A. That's, yes. Q. What I'd ask you to do please, doing the very best you can to recite to us or tell us the words that he actually used that particular time would you? A. I'm sorry I can't remember. Q. Doing the very best you can? A. Well I guess it was what was said in the statement. Q. Did he use the word "Altercation" or did he use some other word? A. I think that was my terminology. Q. Did he use the word "Ripped" or-- A. I think that was also my. [In light of the subsequent question, I proceed on the basis that the word "interpretation" should be added to this answer]. Q. When you say your interpretation, why did you use or put that interpretation on it? A. How do you mean sorry. Q. Well you said it was your interpretation of an altercation, what did he-- A. Well I didn't, nothing was, there were no details, I didn't know really the extent. Q. Well did he say anything to you in order for you to use that word "Altercation"? A. Probably argument or something like that I'm sorry it was a while ago, I just don't remember. Q. "Lee told me that Easy got into a fight with the drug dealer". What were his words to you? A. Again I'm sorry it was nearly, it was over two years ago, I can't remember the exact. Q. And Lee had got involved, what was it that he said to you to give you that impression? A. Honestly I can't remember. It was a while ago. Q. A little bit further down you've said in your statement "Easy had blood on his sleeve and Lee told me that Easy had cut himself during the fight with a man at Hamilton South" so what was it that he said to you in order for you to give that detail in your statement? A. I'm really sorry but I can't remember the exact - I just can't remember the exact conversation, it was over two years ago." 19Although the Crown Prosecutor made it clear that the evidence of what Lee Dacey said would be tendered only against Lee Dacey and not against Ian Dacey, the Crown Prosecutor accepted that senior counsel for Ian Dacey should be permitted to cross-examine the witness on the voir dire. In light of the position of the parties, I agreed to that approach, with some misgivings. 20The following exchange took place during that process: "Q. When you had completed that statement you signed it? A. I signed it, yes. Q. Were you then relying on your memory-- A. Yes. Q. --as to what these people had said? A. Yes. Q. How good was your memory of what they had said at that time? A. It wasn't very good, I didn't really understand the significance of the occasion at the time and like I said, I was preoccupied with other things. Q. You've read those words in paragraph 6? A. Yes. Q. Been read to you, are you able to comment today on how accurate they are? A. It was to the best of my memory but like I said, I wasn't aware of - I wasn't aware that I was going to have to recollect the information at a later date, so I wasn't kind of absorbing it as such and I was also, like I said, preoccupied with getting ready for work and that sort of thing as well. Q. Do I understand you to say this then, that is your interpretation based upon your memory of a conversation that occurred more than six months earlier? A. Yes, that's accurate, pretty accurate." 21In cross-examination on the voir dire by senior counsel for Lee Dacey, the following exchange took place: "Q. The word "ripped off," you say that was your word? HIS HONOUR: One moment, Ms Yehia, "ripped of". CROWN PROSECUTOR: O-F. YEHIA Q. Sorry, "ripped of"? A. Yeah, that would have been my - that would have been my words. Q. "Altercation" is your word? A. Yes. Q. You don't have any recollection now of what words Lee used at the time? A. No, no, sorry. Q. You've also said here, "and Lee had got involved," is that your words? A. Yes, it's all my words, I didn't have a precise recollection of what was said. Q. So do you have any recollection at all of what Lee said he did or did not do during this incident? A. I have no idea, sorry, I can't - I barely remember the incident. Q. Do you remember now when you saw Lee on this occasion, you were having this conversation, whether you noticed whether he was affected by any substance? A. Yeah, they were both hard to understand, so I couldn't understand very much. Q. When you say "both hard to understand," in relation to Lee, was he slurring? A. Yes. Q. Did you notice anything else about him or his appearance that made it difficult for you to understand what he was saying? A. That was pretty much it, like the slurring of words." Submissions 22The Crown Prosecutor submitted that s 38(1)(c) had been made out. In short, in examination-in-chief in the trial, the witness had given evidence that nothing had been said on the morning about the preceding events at Hamilton South. And yet at paragraph 6 of the statement of 8 February 2012 of the witness had stated that quite a bit had indeed been said about that topic. 23It was also submitted that, on all of the evidence, I would comfortably form the view that s 38(1)(b) had also been made out. 24To the extent that the witness was saying in the witness box that what had been recorded in a statement of 6 February 2012 was merely her "interpretation", and in truth not a reflection or paraphrasing of what Lee Dacey had said, he submitted that I would reject her evidence as false. 25Senior counsel for Lee Dacey accepted that the bare preconditions of s 38(1)(c) had been made out. No reliance was placed upon the matters in s 38(6). But she submitted that, in truth, the witness had given uncontradicted evidence that the contents of her statement were nothing more than her interpretation or opinion of what Mr Lee Dacey had been saying. The result of that, she submitted, was that the evidence was irrelevant (and therefore fell foul of s 55 of the Act); that it was lay opinion evidence (and therefore fell foul of s 76 of the Act); and that the probative value (if any at all) of the evidence is substantially outweighed by the danger that the evidence might be misleading or confusing (and therefore it should be rejected pursuant to s 135 of the Act); and, finally, that any probative value of such evidence is outweighed by the danger of unfair prejudice to the client (and therefore it must be rejected pursuant to s 137 of the Act). 26Senior counsel for Ian Dacey was permitted to address on the voir dire, again with the concurrence of the Crown Prosecutor. He submitted that I would not permit the evidence to be led in the trial. That submission had two bases. The first was that the evidence falls foul of ss 135 and 137 with regard to his client. The second was that "there is an underlying discretion of course for the Court to reject evidence where there is a possibility that it can be unfair to the accused and that's what I'm really relying upon." Determination 27It is convenient to deal with the submissions of senior counsel for Ian Dacey first. 28On reflection, and despite the concession of the Crown Prosecutor, in light of the fact that the evidence is not tendered against Ian Dacey, and will not be admitted against Ian Dacey, I consider that I should not have heard from senior counsel for Ian Dacey on the voir dire. 29However, as against the possibility that I am wrong in that conclusion, I turn to consider the submissions of senior counsel for Ian Dacey. 30It is agreed by all parties that the evidence of what Lee Dacey said contained in paragraph 6 of the statement of the witness is not admissible against Ian Dacey. Pursuant to that proposition, the parties have already agreed with regard to the direction that I shall give to the jury to that effect very shortly after the evidence, if admitted, is led in the trial. I shall also return to the topic in my summing-up. 31It follows that, to the extent that ss 135 and 137 of the Act call upon a trial judge to undertake a balancing test with regard to, on the one hand, probative value, and, on the other, sundry other factors, both sections have no application, for the simple reason that the evidence has no probative value against Ian Dacey. 32As for the other submission, it is perfectly true that an accused must be accorded a fair trial according to law, as the High Court of Australia has repeatedly formulated that right: see, for example, Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 at 331, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [73] and Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [82]. In this case, the law is the rules of evidence, as they are found in the Act, and so much of the common law rules of evidence as have survived since 1995. I repeat that, pursuant to those rules of evidence, the evidence is not to be admitted against Ian Dacey. 33Finally, it is noteworthy that the trial has been proceeding for many days, and there has not been, either before or during the trial, an application made on behalf of Ian Dacey for a separate trial, founded upon the one jury hearing any evidence that will be inadmissible against Ian Dacey. 34For all of those reasons, I do not accept that the evidence should be excluded from the trial because of any possible prejudice it may occasion to Ian Dacey. 35Turning to the submissions of senior counsel for Lee Dacey, I do not accept the factual proposition that the matters recounted by the witness in paragraph 6 of the statement as having been said by Lee Dacey were nothing more than matters of interpretation or opinion on her part. 36In other words, whilst I certainly accept that she was unable to recall six months after the event the precise words used by Lee Dacey on 10 August 2011, I consider that what she said on 6 February 2012 was a reflection of what Lee Dacey had said, and not merely something that was the product of her own mind. To the extent that she gave evidence to other effect before me, both in the trial and on the voir dire, I reject the truthfulness of that evidence. That finding is based upon the following factors. 37First, on 27 September 2011 she provided police with a false statement. 38Secondly, on 6 October 2011, she behaved dishonestly in the identification process with regard to Lee Dacey. 39Thirdly, although the recitation of things said by Lee Dacey in paragraph 6 of the statement of 6 February 2012 is not provided in direct speech, there is nothing to suggest any lack of clarity, or any interpretive process, or the expression of any opinion, on the part of the witness at the time she made and signed and adopted that statement. In other words, there is nothing that the witness said on 6 February 2012 to support the proposition put forward by her in November 2013. Indeed, to the extent that paragraph 6 provides substantial detail as to what Lee Dacey had said, the evidence is to the contrary. 40Fourthly, on 6 February 2012, the witness expressed fears about her safety with regard to inculpation of the two accused, and stated that those fears were operating on her mind as at September 2011, October 2011, and indeed in February 2012. 41Fifthly, from an early stage of examination-in-chief before the jury, she commenced to provide discursive and unpersuasive explanations as to her inability to recall accurately the events of that morning. 42Sixthly, in examination-in-chief before the jury, it was not a matter of the witness purporting to remember something at least of what had been said. The contrast between the detail in paragraph 6 of the statement of 6 February 2012 and her purported complete inability to recollect anything having been said with regard to the events at Hamilton South is notably stark. 43Seventhly, on the voir dire she gave evidence in cross-examination that the contents of the statement were to "the best of [her] memory". 44Eighthly, and finally, it is remarkable that in November 2013 the witness was able to give evidence with regard to matters of detail (such as the refreshments that she served to her guests on the morning in August 2011), but was unable in chief to recall anything whatsoever having been said about the topic of what had happened at Hamilton South. 45In short, I do not accept that the contents of paragraph 6 of the statement of 6 February 2012 are nothing more than an interpretation or an opinion on the part of the witness as to what Lee Dacey said. Having made that finding as the tribunal of fact on the voir dire, there is no need for me to analyse in detail the submissions of senior counsel for Lee Dacey that are founded upon a factual proposition contrary to my finding. It is sufficient to say that I consider that the prior inconsistent statement of the witness is indeed relevant; that I do not consider that it is inadmissible on the basis that it is lay opinion evidence; that I regard its probative value as very high; that I do not consider that the evidence would be misleading or confusing to the jury; and that I do not consider that there would be any unfair prejudice arising from its admission. 46No doubt there are serious questions as to the weight of the evidence, in light of the various positions adopted by the witness over the past two years, and her position now in the witness box. But as the two defence counsel amply demonstrated on the voir dire, those questions of weight are capable of full explication by way of cross-examination in the presence of the jury. 47If I am wrong in my assessment of the truth of the background and import of the prior inconsistent statement, and there is a substantial element of "interpretation" in what the witness stated Lee Dacey had said, I do not accept that that characterisation means that the evidence is inadmissible and must otherwise be rejected. 48As senior counsel for Lee Dacey and I agreed during discussion, merely because the witness is unable to state what another person said verbatim does not mean that the evidence of the witness is inadmissible, any more than other evidence from other witnesses must be shown to be precisely accurate before it may be admitted. Unassisted by authority on the point, I consider that, in recounting what others have said, whilst the adoption of direct speech is always desirable, it is not a precondition of admissibility. And even when a witness is able to give evidence in that form, it is almost always (except with regard to highly memorable utterances) not put forward as being a "tape recording". 49In short, even if (contrary to my factual finding) the prior inconsistent statement under consideration was to some degree a matter of interpretation going beyond the usual paraphrasing that occurs when any witness recounts what another person has said, that would not have led me to reject the evidence, either on the basis of it being inadmissible, or in the exercise of my "discretions". But in light of my primary finding of fact, this ancillary question need not be explored at length. 50Finally, I have explored the factors contained in s 192 in earlier judgments in support of other evidentiary rulings in this trial, and I will not repeat that analysis. It suffices to say that there is nothing in s 192 that militates in favour of refusing leave in the circumstances. Ruling made on 25 November 2013 51It is for those reasons that on 25 November 2013, I made the following evidentiary ruling: 52The Crown is granted leave to question the witness, Ms Caldwell, as though the Crown were cross-examining the witness about whether the witness made a prior inconsistent statement on 6 February 2012 with regard to things said by Mr Lee Dacey. ********** 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: 20 April 2016