Supreme Court New South Wales Medium Neutral Citation: R v Adams (No 4) [2016] NSWSC 1446 Hearing dates: 5 October 2016 Date of orders: 05 October 2016 Decision date: 05 October 2016 Jurisdiction: Common Law Before: Button J Decision: Majority of evidence admitted: see [15] and [16]. Catchwords: CRIMINAL – evidence – whether proposed evidence is credibility evidence – whether evidence relevant only to credibility Legislation Cited: Evidence Act 1995 (NSW), ss 39, 101A, 102, 103, 106, 108 Category: Procedural and other rulings Parties: Regina Robert John Adams Representation: Counsel: M Hobart SC (Crown) P Lange with C Parkin (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Murphy's Lawyers (Accused) File Number(s): 2013/382738 EX TEMPORE Judgment 1. Objection has been taken to a large number of paragraphs in voir dire exhibits J and K, which constitute the proposed evidence of Mr Ross Adams. I have already delivered a short ex tempore ruling earlier today explaining why I regard all of that evidence as relevant and admissible, subject to the Crown Prosecutor having made clear that certain evidence will only be relied on for limited purposes. 2. Subsequently, further objection was taken by defence counsel on the basis that the proposed evidence is credibility evidence, as defined by statute, and accordingly is inadmissible in evidence-in-chief. 3. It is certainly the case that, in accordance with s 102 of the Evidence Act 1995 (NSW), evidence that is credibility evidence (as defined) is inadmissible. There are exceptions to that, but, as ss 103 and 106 of the Evidence Act demonstrate, those exceptions are founded upon cross-examination. 4. The thrust of the Evidence Act, I accept, is that a calling party is not permitted to bolster the credibility of its own witness, in conformity with the "common law" rules of evidence that existed until 1995. 5. So much may be accepted. But I respectfully do not accept that the objection is well-founded in the main. That is because I do not accept that any of the foreshadowed evidence, with one exception, falls within the definition of credibility evidence to be found within s 101A of the Evidence Act, which is as follows: 101A Credibility evidence Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person, or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person, and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6. 1. In particular, I do not accept that much of the foreshadowed evidence is relevant only because it affects the assessment of the credibility of Mr Ross Adams, or because it is relevant only for that purpose and for some other prohibited purpose. 2. In other words, it is true that the evidence is relevant to the credibility of Mr Ross Adams. But I by no means consider that much of it is relevant only to that question. 3. To my mind, the evidence is also relevant to the whole factual matrix of how the two men lived; the relationship between the accused and the witness and others; the behaviour of the accused towards the witness; their drinking habits; their living arrangements; places of residence; and daily habits generally. And all of that, of course, is far closer in time to the disappearance of the deceased in 1983 than now in late 2016. 4. It needs also to be borne in mind that the Crown case is a circumstantial one alleging murder, founded upon inferences, including, of course, inferences said to be able to be drawn from an alleged tendency of the accused. 5. Quite apart from those rather general ways in which I consider the evidence to be relevant to the Crown case, in particular I consider that the entirety of the relationship between the two men; their living arrangements; their contact over the years; their use of alcohol; things said to each other over the years, and the way they were said, is all directly relevant to what assessment I am to make of the alleged conversation between the two of them about the death of the deceased, foreshadowed at para 12 of voir dire exhibit K. And I include in that the alleged use of force by the accused against the witness when the latter spoke of moving out, some months after the alleged conversation, as foreshadowed at para 7 of voir dire exhibit K. 6. I should make it clear that, contrary to the submissions of the learned Crown Prosecutor, I do not admit any of the evidence that is objected to on the basis that it shows a tendency on the part of the accused to be violent, or to change suddenly from being pleasant to being aggressive or antagonistic. That is because no notice has been given of that proposition, and there has been no argument about its admissibility as a result. 7. Nor do I admit the evidence as shedding light on the character of the accused, it having been made clear by defence counsel that the character of his client will not be raised in this trial. 8. Rather, I consider that the entirety of the relationship between the two men is relevant to how I am to understand the alleged conversation between them, and its alleged aftermath when the witness spoke of departure. I also consider that much of it is relevant to the circumstances and way of life of the accused many years ago. 9. In summary then, almost all of the paragraphs objected to in voir dire exhibits J and K do not, to my mind, fall within the definition of credibility evidence. That is because they are not relevant only to the credibility of Mr Ross Adams, or relevant only to his credibility and for a prohibited purpose. Rather, they are relevant to many other matters in the trial beyond the credibility of that witness, the foremost of which is the meaning, in context, of the conversation alleged to have taken place about the death of the deceased, and the alleged act of violence towards the witness a few months later. 10. Accordingly, with one exception, I reject the objection based on s 102 of the Evidence Act because, in a nutshell, the evidence does not fall within the definition of credibility evidence contained in s 101A of the Evidence Act. 11. That exception is the reference to the writing by the witness of the letter, since destroyed, contained at para 36 of voir dire exhibit J and para 19 of voir dire exhibit K. I say that because I consider that the writing of the letter and its contents is relevant only to the credibility of the witness, in the sense of why the witness may have delayed speaking to police or spoken to them incompletely in his first statement. In examination-in-chief, I consider that the whole of those two paragraphs is not to be admitted. As necessary, the question of the admissibility of those two paragraphs may be re-agitated, pursuant to s 39 and s 108 of the Evidence Act, by the learned Crown Prosecutor after cross-examination is 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. Decision last updated: 14 October 2016