R v Briggs [2014] NSWSC 850

Supreme Court New South Wales

Medium Neutral Citation: R v Briggs [2014] NSWSC 850 Hearing dates: 2 June 2014 Decision date: 02 June 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: Cross-examination of the two witnesses will not be permitted. Catchwords: CRIMINAL LAW - EVIDENCE - voice identification evidence - admissibility - proposed evidence received on voir dire by way of statement - whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused - how trial judge should properly approach this balancing exercise Legislation Cited: Evidence Act 1995 (NSW), ss 55, 137 Cases Cited: Burton v R [2013] NSWCCA 335 R v Adler [2000] NSWCCA 357; 52 NSWLR 451 R v Christie [1914] AC 545 R v Riscuta [2003] NSWCCA 6 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v XY [2013] NSWCCA 121; 84 NSWLR 363 Category: Interlocutory applications Parties: Regina Cecil Paul Briggs Representation: Counsel: Mr J McLennan (Crown) Mr C Bruce SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2012/399846

Ex tempore Judgment 1HIS HONOUR: Objection has been taken by defence counsel to the admission of voice identification evidence from two witnesses, Mr Costin and Mr Ryan. In the latter case it is not entirely clear whether the witness, according to his statement, is engaged in voice identification or, in truth, an assumption as to what he has heard. 2In a nutshell, the two witnesses were outside when it is alleged that the accused fatally assaulted the deceased inside a residential flat. The facts in issue therefore are whether the accused assaulted the deceased, thereby causing his death, with one of the two necessary mental elements of intention for the crime of murder: see the judgment of Simpson J in Burton v R [2013] NSWCCA 335 commencing at [148]. 3It seems that there is no dispute on the part of defence counsel with regard to the first two elements. Rather, there is a question as to whether the mental elements of murder can be established by the Crown beyond reasonable doubt. It seems that the jury may well need to be directed about the question of intoxication, and also manslaughter by way of an unlawful and dangerous act. It also seems likely that self-defence, at least in its excessive form, will need to be left to the jury. 4According to his statements, voir dire exhibits B and C, Mr Costin heard a male voice from inside the flats say, amongst other things, "I'm going to fucking kill you" and "Do you want to go again do you". Later, when the accused was arrested and being taken by police to a caged truck, Mr Costin heard the accused speak to police and "positively recognised" the voice of the accused as being the voice that he had heard from inside the apartment. 5According to Mr Ryan's statement, voir dire exhibit D, he saw a man outside the units, and as I understand it there is no dispute that that man was the accused. In [5] Mr Ryan describes hearing that man use "slurred speech" and "talking loudly". Later, he heard a voice from inside the apartments say, amongst other things, "I'm going to kill you" and "Do you want to do this again". One can infer from his statement - although it is true that the position is not entirely clear - that he identified the voice from the apartment as the voice he had previously heard emanating from the person of the accused. 6In accordance with the authorities, the objection of defence counsel is not founded on any common law preconditions with regard to the admissibility of voice identification evidence: see R v Adler [2000] NSWCCA 357; 52 NSWLR 451 at 454-455, and R v Riscuta [2003] NSWCCA 6 at [34]. Nor is it founded on s 55 of the Evidence Act 1995 (NSW) ("the Act"). Rather, it is founded on the well-known balancing test in s 137 of that Act. 7The Crown Prosecutor submitted that, in accordance with a plethora of authorities of the New South Wales Court of Criminal Appeal (amongst them R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228, R v XY [2013] NSWCCA 121; 84 NSWLR 363, and the most recent case to which I was referred, Burton v R), it is now soundly established that questions of credibility, reliability, and weight are not for me at this stage in my approach to s 137 of the Act. Rather, he submitted, I should undertake the well-known balancing exercise called for by that section on the assumption that the evidence is accepted. In other words, he submitted that I should not assess the weight of the evidence in order to determine whether it may be accepted by the jury, and thereby determine its probative value. Rather I should assume that it will be accepted, and thereafter assess its probative value in light of all of the foreshadowed evidence in the trial, along with the facts in issue that I have identified. 8Defence counsel submitted that it must be the case that a trial judge should make some assessment of the true strength of the evidence at this stage, as part of the proper application of the section. 9In discussion, I queried of the learned Crown Prosecutor whether, if it be the case that, for example, one of the witnesses is in truth very deaf, that is nevertheless something that should not be explored on the voir dire. He confirmed that that is his submission. 10Having taken some time to reflect on the question, I accept the position of the Crown Prosecutor. Without analysing the different judgments in R v XY in detail, in summary the majority endorses the approach of Spigelman CJ in R v Shamouil. 11In the very recent case of Burton v R, the analysis of Simpson J to like effect commanded the unanimous support of the Court of Criminal Appeal comprised as well of R A Hulme J and Barr AJ. 12I respectfully consider that defence counsel is correct in his submission that the modern approach is not consistent with the approach taken by trial judges over many years with regard to the "probative/prejudicial" discretion at common law first enunciated in R v Christie [1914] AC 545. Nor is it consistent, indeed, with the approach taken by trial judges over many years with regard to s 137. 13Nevertheless, I consider that the position in New South Wales is now clear: questions of credibility, reliability, and weight, and indeed alternative explanations or inferences, are for the jury. They are not for me at the stage of undertaking the balancing exercise contained in s 137 of the Act. 14Accordingly, any voir dire addressed to questions of weight and the like will be otiose. It follows that cross-examination in that regard of the two witnesses will not be permitted.