District Court New South Wales Medium Neutral Citation: R v Firebrace [2014] NSWDC 274 Decision date: 06 August 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Evidence not admitted. Catchwords: CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - unreliable evidence - probative value outweighed by danger of unfair prejudice - evidence not admitted Legislation Cited: Evidence Act 1995 (NSW) ss 38(1)(b), 135, 137. Category: Procedural and other rulings Parties: Regina (Crown) Wesley Firebrace (accused) Representation: Counsel: K Stares (accused) Solicitors: M Knowles (Director of Public Prosecutions) File Number(s): 2013/00074102 Judgment 1. Wesley Firebrace is charged with rape. Ms M Knowles, who appears for the Director of Public Prosecutions, is tendering some evidence from a witness. The witness - a man named Shane Williams - was called on the voir dire. He was drinking with Wesley Firebrace on the day that the rape is said to have happened (7 March 2013). Mr Firebrace was arrested four days later, on 11 March 2013. Shane Williams is a relative of Mr Firebrace. 2. Mr Williams said on the voir dire that the accused "told me he was in trouble". He said that Mr Firebrace referred to "that young girl", saying that "he's in trouble for that girl or something, and we might have to come to Court for it." Just before giving that account, he said that Mr Firebrace had said those things to him "probably two days later or something". 3. Ms Knowles understandably wants to use the evidence in this way. Wesley Firebrace is said to have committed the offence on 7 March. He is not arrested until 11 March. Before his arrest - that is, about two days after 7 March - he was acknowledging to his relative that he might be in trouble and might have to go to Court. The issue in the case is not whether Wesley Firebrace had sex with the woman who is complaining that she was raped but whether it was consensual or not. Obviously, Ms Knowles wants to rely upon this acknowledgment by Wesley Firebrace before he was arrested that there might be some trouble surrounding the circumstances in which he had sex with the complainant. 4. Ms K Stares, who appears for Wesley Firebrace, objects to the evidence. She is relying on s 135 and s 137 of the Evidence Act 1995 (NSW). In discussing how the evidence was likely to be tendered, Ms Knowles acknowledged that she would call Mr Williams and ask him about that conversation that he has already acknowledged he had with Wesley Firebrace and when it occurred. If Mr Williams says that it occurred two days later, as he said before, then she has a firm basis for making a submission that Wesley Firebrace has made some kind of admission. 5. However, Mr Williams has said other things about when he had that conversation with Wesley Firebrace. Having acknowledged in the first place that it was "probably two days later or something," he later said that he was not really sure and it "could have been a week, it could have been four or five days, it could have been three days. I'm not really sure." 6. Ms Knowles would argue, in part getting around that difficulty, that Mr Williams also said, at first recounting the conversation, that the next thing he knew "Wes ended up in lockup." That suggests that the conversation was before he was arrested and is therefore more likely to be an admission. 7. Section 137 of the Evidence Act provides that I "must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice" to the accused. 8. Having said that, I should make this observation about Mr Williams. Ms Knowles called him on the voir dire and applied during his evidence in chief to cross-examine him. Her application for that leave was not opposed by Ms Stares. Ms Knowles relied upon the provision that Mr Williams' evidence was "unfavourable" to her case. That seemed obvious to me. What also seemed obvious to me, and it may have been something that Ms Knowles also relied upon, I just cannot recollect, is that this proposition is also true of Mr Williams (and I'm quoting from s 38(1)(b)). There was "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". 9. I got the impression that his evidence was vague and evasive and that he was not making a real attempt to answer questions. 10. So we have a situation where either one of two things could happen. Ms Knowles calls Mr Williams and he gives the answer which she anticipates. In that circumstance Ms Stares will cross-examine him about the various other estimates which he has given about when her client said these things, suggesting that they were beyond the time that he knew that he was in trouble. Alternatively, Ms Knowles will call Mr Williams who will not give the answer which she anticipates and she will then apply for leave to cross-examine him in front of the jury, relying upon the fact that he has given his original evidence of the two day estimate as a prior inconsistent statement. 11. Either course means, in my opinion, that Mr Williams as a witness and his evidence will be exposed as quite unreliable. It will be apparent that his answers appear to shift according to what he perceives may or may not be of assistance to Mr Firebrace, a relative of his. (I must say, I make those remarks in his absence and publicly and I acknowledge that he does not personally have an opportunity to say anything about these critical remarks about him. But I need to make these remarks in order to determine the question.) 12. The admission of the tendered evidence would introduce into the trial a dispute over a few lines of evidence said to amount to an admission uttered by a witness who, it seems, is regarded by counsel as unreliable and whom I regard as unreliable. It raises obviously the issue of how reliable his original estimate was. 13. It seems to me that the probative value of the evidence from Mr Williams is not at all high. The danger, however, to Mr Firebrace is that the jury will put too much weight on his original assertion despite the arguments about Mr Williams' unreliability. 14. There is another danger. That is that the jury may be distracted from what seems to me to be its main task, to determine whether they are satisfied beyond reasonable doubt of the truth of the evidence given by the complainant in this case, supported, as her evidence is, in other ways which the Crown will rely upon. 15. In my opinion, the probative value of the evidence which Ms Knowles seeks to tender is outweighed by the danger of unfair prejudice to the accused and I refuse to admit it under s 137 of the Evidence Act. ********** 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: 19 February 2015