R v Lewis (No 2) [2018] NSWDC 273

District Court New South Wales

Medium Neutral Citation: R v Lewis (No 2) [2018] NSWDC 273 Hearing dates: 11 – 14, 17 – 19 September 2018 Date of orders: 19 September 2018 Decision date: 19 September 2018 Jurisdiction: Criminal Before: Neilson DCJ Decision: I admit the representations in question with the excision of [12] of the statement. Catchwords: CRIME – PRACTICE AND PROCEDURE – Application pursuant to s 65 of Evidence Act 1995 to admit hearsay evidence Legislation Cited: Evidence Act 1995 Cases Cited: Fletcher v The Queen [2015] VSCA 146 R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306 R v B.O. [2012] NSWDC 195; (2012) 15 DCLR (NSW) 317 Category: Procedural and other rulings Parties: Regina (Crown) Mark Brett Lewis (Accused) Representation: Counsel: Mr A Metcalfe (Crown) Mr RJ Webb (Accused)

Solicitors: Solicitors for ODPP (Crown) KQ Lawyers (Accused) File Number(s): 2016/19543 Publication restriction: Nil

Judgment 1. HIS HONOUR: On 13 September 2018, the fourth day of this trial, the Crown called Ms Priscilla Fauvette to give evidence. Ms Fauvette attended Court in obedience to a subpoena to give evidence. Ms Fauvette made an application under s 18 of the Evidence Act 1995. For reasons that I gave on that day, I ruled that Ms Fauvette was not compellable to give evidence as the de facto wife of the accused in this trial. 2. On Monday 17 September, Monday of this week, the Crown served a notice upon the accused's solicitor pursuant to s 67 of the Evidence Act. Inter alia, the notice seeks to rely on representations previously made by Priscilla Fauvette in [3] to [14] of her statement of 19 January 2016. The paragraphs in question of that statement are these: "3. I have known Mark LEWIS for about 20 years. We had been in an intimate relationship since 2009 and have two children together. Mark and I separated in mid 2013. Mark and I still live together and co-parent. Mark works for Hawkesbury Council as a Waste Water Operator. Mark works at the Fairey Road, South Windsor Depot. Mark works during the day and has on call shifts throughout the week. When [M]ark is on call he can get a call out at anytime which he will need to go out to. 4. Between 5am and 6am on Monday the 28th on December 2015, I was at home with my children, my cousin, her partner and their children when Mark left for work. I[t] was a Public Holiday so he has a short shift from 6am – 9am. I received messages throughout the morning from Mark. About 12:48pm I received a message from Mark saying, "On way home so far." 5. Shortly after that message Mark came home. Mark had something to eat and told me that he had to go back to work for plant duties at about 4:00pm that afternoon. Mark then went to his room to sleep. 6. I was home all day with my kids and my cousin's kids and her partner. About 4:00pm I saw Mark say goodbye to our kids before he left for work. At the time [M]ark left to go back to work he had a white Hawkesbury Council Ute. I did not see or hear from Mark for the rest of the day or night. I went to bed at about midnight and at that time Mark had not come home. 7. About 6:00am on Tuesday the 29th of December 2015, I woke up and Mark wasn't home. I know he wasn't home because I can usually hear him snoring I also went past [M]ark's room and saw that he wasn't there. This is not unusual for [M]ark to not come home when he is on call. 8. About 11:00am on Tuesday the 29th of December 2015, I was out the back with my kids when [M]ark came home. Mark came through the side gate. Mark said, "Hi." Mark then went inside. About 15 minutes later Mark came back out and said, "I'm going back to work." I said, "No worries." Mark the[n] left. I didn't see what car [M]ark left in. 9. At 1:54pm on Tuesday the 29th of December 2015, I sent Mark a message. The message read, "Pru and Dan are getting ready to leave soon to go to louise house." Mark responded, "Just on way to see mick he has some problems he needs my help how are you and boys." Mark then sent "Ok, off to the next destination they go." I know Mick to be Michael STEWART. Michael STEWART works with Mark at the Council and is Mark's boss. I would say that Mark and Mick have a good working relationship. Mick has brought his daughter to our place on a number of occasions. I sent, "Hope he is ok. We are good here, Beau is asleep and Caden is watching a movie." Mark and I had a further message conversation regarding our children. At 6:02pm [M]ark sent a message saying, "Im on way home now be ten min." Then sent "Can you unlock side gates I have micks dog." 10. Shortly after this Mark arrived home with Mick's dog. I said, "Why do we have Mick's dog for." Mark said, "Mick's in a bit of trouble and we just need to mind his dog for a bit." I said, "Why." Mark, "It's none of your concern." Mark then stopped talking to me about why we had Mick's dog and what trouble Mick was in. 11. About 10:00am on Wednesday the 30th of December 2015, I was at home with my kids and a friend when Detective came to my House. They introduced themselves as Detective Trent ATKINS and there was another Police officer but I can't remember his name. Detective ATKINS asked me some general questions about Mark and his movements over the previous days. I told Detective ATKINS what the same as what I have said now. I asked what this was about and Detective ATKINS asked if I could meet with him later to speak further. The Detectives then left. 12. After the Detectives left me and my friend started to search Google and the news. I read about a man in East Kurrajong that had been charged after an explosion in East Kurrajong. I knew that Michael STEWART lived in that area. I kept reading stories about what had happened on the news. I was talking with my friend and I didn't know what to think. 13. Later that night when Mark was home and the kids went to bed I spoke with Mark, I said, "What's going on. Detectives were here asking about you and Mick." Mark said something like, "I don't want to talk about it. It has nothing to do with you." 14. On Thursday the 14th of January 2016, I met with Detectives at my work. I had a short conversation with them where I arranged to meet with them to provide this statement. I gave permission for Police to take photographs of the messages in my phone." 1. The Crown submits that the witness Priscilla Fauvette, having made a successful application under s 18 of the Evidence Act, is no longer available to give evidence. The first two subsections of s 65 are these: "65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (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: (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (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." 1. The Dictionary to the Evidence Act contains in Pt 2 this provision: "4. Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or (d) it would be unlawful for the person to give the evidence, or (e) a provision of this Act prohibits the evidence being given, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact." 1. The authorities to which I have been referred establish authoritatively that a witness who is not compellable under s 18 of the Act becomes a person who is not available to give evidence pursuant to cl 4(g). The first authority to which I have been referred is the decision of Haesler DCJ in R v B.O. [2012] NSWDC 195; (2012) 15 DCLR (NSW) 317. In that case the accused was charged with manslaughter of his then partner's 11 month old child. The Crown proposed to call the accused's two sons, who were then aged 11 and 7 to give evidence. His Honour refused to compel the two boys to give evidence against their father, and the Crown then applied to rely on the previous representations made by the two boys under s 65. Those representations were made in DVDs and also recorded in transcripts of those recorded interviews with the police. There was also evidence given by the elder boy at an earlier hearing. His Honour rejected the Crown's submission that the tender of the witnesses' prior representations. His Honour believed that there was still work to be done by s 18, such that it overcame the provisions of s 65. His Honour said this: "28. If there were any ambiguity a purposive approach to the interpretation of section 18 would compel an interpretation which allowed the section work to do whenever a child's evidence was sought to be given against a parent no matter the form it took or whether as direct or hearsay evidence: s 33 & s 34 Interpretation Act 1987 and Project Blue Sky v ABA (1998) 194 CLR 355. This is because, as here, no matter in what form the evidence is given, the community interest in full exposition of available evidence may not be worth the risk to the relationship between a parent and a child should they believe their evidence brought punishment upon their parent. 29. When s 18 is considered at this stage, separate consideration would need to be given to the balancing process required by s 18(6) and different weight might be given to the s 18(7) factors required to be considered. One example is the children would not be subject to the rigours of being at court or in a remote CCTV room and would not be cross-examined by their father's counsel. However, in this matter, when I consider the nature of the proceedings, the substance and importance of the evidence and the nature of the relationship between the boys and their father I am still of the view that the likelihood that harm would or might result means that the nature and extent of the harm outweighs the desirability of the evidence being given." However, his Honour then added this postscript: "30. When revising these remarks I became aware of the decision of Justice Beach in DPP v Nicholls [2010] VSC 397. There His Honour held that s 65 could apply to make prima facie admissible a prior representation by a witness after a s 18(6) order had been made. It does not appear to me that the point about the continued operation of s 18 was argued, and although persuasive, I do not believe I am bound to follow a decision that does not address the specific point raised here." 1. This case has not been followed by the Court of Appeal of Victoria, or approved by Johnson J sitting in the Common Law Division of the Supreme Court. The first case to which I have just alluded is Fletcher v The Queen [2015] VSCA 146. That was an appeal from the County Court of Victoria. The principal judgment was given by Dixon AJA with whom Weinberg JA agreed and with whom Priest JA also agreed, albeit that his Honour gave separate reasons on the question of the witness' not being available to give evidence. Dixon AJA pointed out that the applicant in that case relied upon the decision of Haesler DCJ and based his submissions on his Honour's reasoning which I have just quoted. Dixon AJA went on to say this: "58. I would reject the applicant's submission. I agree with the Crown's submission that the form of the evidence considered in B O may explain the result in that decision, particularly the video recorded evidence given by the elder boy at an earlier trial. But here the statement was a written statement taken by an investigator before charges were laid. The process of making a statement during an investigation cannot be conflated with the process of giving evidence at a trial. The rules in respect of competence and compellability of witnesses to give evidence at a trial do not govern criminal investigation processes. Absent special arrangements, evidence that is 'given' is received by the court by being seen and heard from the witness box. That evidence does not exist until it is given. A document, such as a statement, may be tendered as an exhibit. An exhibit is also evidence in a trial, but while tender is a process of adducing evidence in a criminal proceeding, the process of creating the document tendered — in this case making a statement — is not. Making a statement to police is neither a process of 'giving' evidence, nor a process in a criminal proceeding as that term is defined by the Act. 59. In its written case, the Crown correctly submitted that when a statement is admitted under s 65 the maker of the statement is not 'required to give evidence.' As the presiding judge noted in argument, a person may only object 'to being required to give evidence' when that occasion arises. If the objection is upheld, the person must 'not be required to give evidence.' That was what occurred. Ms Li did not give evidence. The police officer who took her statement gave evidence to the jury of her previous representations. The prosecutor tendered the statement and read it to the jury. It is untenable to contend that in such circumstances Ms Li gave evidence. 60. Neither did Ms Li give evidence when she made her statement to police. Section 18 applies only in a criminal proceeding.[18] It has no application in criminal investigation and does not operate to permit a relative of the accused (to use a general description) to object to being required to make a statement to police. Any person may decline to make a statement to investigating police. The policy considerations underlying s 18 have nothing to do with whether a relative (of, presumably, a suspect) can be required to make a statement to police. Section s 18 has no ongoing application after successful objection by the maker of the statement to the evidence of an investigator permitted under s 65 to produce that statement. The plain language of s 65(1) does not limit the character or features of a previous representation that would otherwise be excluded by the hearsay rule by reference to s 18 or the underlying policy justification for the rule. The four categories of circumstances in which a representation was made that qualify a previous representation as admissible in exception to the hearsay rule are set out in s 65(2). 61. Nothing in s 18 (or the policy underlying it) or in s 65 or in cl 4 of pt 2 of the Dictionary operated to limit the application of s 65 or the operation of cl 4 of pt 2 of the Dictionary in the manner suggested by the applicant. The applicant's submission that s 18 'has work to do' was misconceived." 1. More recently, the matter came to the attention of Johnson J in R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306. Strictly speaking what his Honour said on this issue is obiter dictum but his Honour is a highly respected and learned judge of the Supreme Court who sits regularly in the criminal jurisdiction of that Court, and sits regularly in the Court of Criminal Appeal. To whatever falls from his Honour, I give the utmost respect. His Honour said this: "174. Having determined, for the purpose of s.18 Evidence Act 1995, that each of C1 and C2 should remain a compellable witness at the trial, it is not strictly necessary to consider the Crown's alternative application based upon s.65 of that Act. However, given that the matter was fully argued, I will express my conclusion in this respect relatively briefly. 175. I am satisfied that, if the Court held that C1 and C2 were not compellable for the purpose of s.18, each of them would be "unavailable" to give evidence for the purpose of s.65. I am satisfied that they would fall within Clause 4(1)(g) within Part 2 of the Dictionary to the Act. 176. The Crown has sought to require both C1 and C2 to give evidence. The Crown has resisted the compellability argument under s.18. If C1 and C2 were held not to be compellable, for the purpose of s.18, it may be concluded readily that the Crown had taken all reasonable steps to compel the person to give evidence, but without success. 177. I do not accept the contrary submission that, as a matter of construction, the presence of cl.4(1)(b) in the definition means that witnesses held not to be compellable under s.18 are not capable of being "unavailable" for the purpose of the provision. 178. In concluding that C1 and C2 were relevantly unavailable for the purpose of s.65, I would follow the reasoning of Beach J in Director of Public Prosecutions (Vic) v Nicholls [2010] VSC 397; 204 A Crim R 306 at 311-312 [18]-[21]. Beach J ruled that a successful objection under s.18 Evidence Act 2008 (Vic) rendered a person unavailable for the purpose of s.65 of the Victorian Act. In reaching this conclusion, his Honour applied the decision of Hamilton J in Mindshare Communications Limited v Orleans Investments Pty Limited [2007] NSWSC 976 at [14]-[18]. Riley CJ reached a similar conclusion in Sanderson v Rabuntja [2014] NTSC 13 at [25]-[27]. With respect, I agree with the reasoning of Hamilton J, Beach J and Riley CJ on this issue. 179. The approach adopted by Beach J in Director of Public Prosecutions (Vic) v Nicholls was applied by the Victorian Court of Appeal in Fletcher v R [2015] VSCA 146. In that case, Dixon AJA (Weinberg JA agreeing) applied this reasoning so that a successful objector under s.18 of the Victorian Act was held to be unavailable for the purpose of s.65 of that Act (see [53]ff). 180. Before me, some reliance was placed by Mr Gow and counsel for the Accused persons upon the decision in R v BO (No. 2) [2012] NSWDC 195; 15 DCLR (NSW) 317. 181. In Fletcher v R, the Victorian Court of Appeal accepted that a statement taken by an investigator, before charges were laid, from a person who has successfully made a claim to be excused under s.18 could be relied upon by the Crown under s.65 of the Act. In this respect, the Court distinguished the decision in R v BO (No. 2). Dixon AJA said at [58]: "I agree with the Crown's submission that the form of the evidence considered in BO may explain the result in that decision, particularly the video recorded evidence given by the elder boy at an earlier trial. But here the statement was a written statement taken by an investigator before charges were laid. The process of making a statement during an investigation cannot be conflated with the process of giving evidence at a trial. The rules in respect of competence and compellability of witnesses to give evidence at a trial do not govern criminal investigation processes. Absent special arrangements, evidence that is 'given' is received by the court by being seen and heard from the witness box. That evidence does not exist until it is given. A document, such as a statement, may be tendered as an exhibit. An exhibit is also evidence in a trial, but while tender is a process of adducing evidence in a criminal proceeding, the process of creating the document tendered - in this case making a statement - is not. Making a statement to police is neither a process of 'giving' evidence, nor a process in a criminal proceeding as that term is defined by the Act." 182. I do not accept the submission of Mr Gow, adopted by counsel for the Accused persons, that a distinction can be made between a written statement of a witness and a recorded interview of a witness in this respect. The recorded interview is obtained during the investigatory stage. It will become evidence if admitted at the trial. 183. Attention would then turn to s.65 of the Act itself. In this respect, consideration is to be given to the recorded interviews of C1 and C2. I have viewed the DVD recording of each interview and read the transcript of the interviews. If the point had been reached, I would have been satisfied that the relevant requirements of s.65(1) and (2) had been met. 184. If the Court had upheld the s.18 objections taken by C1 and C2, I would nevertheless have allowed the Crown to rely upon the recorded interviews with C1 and C2 under s.65 Evidence Act 1995. In reaching such a conclusion, I would have applied the Victorian decisions which, in my view, bear directly upon the questions falling for consideration in this case. 185. Given the conclusions reached by the Court, it is not necessary to say more upon this issue." 1. It is abundantly clear from what his Honour said at [178] that there is much more authority on the point than I have been directly referred to by counsel. However, the weight of the authority is clearly in favour of the proposition that a person who obtains the benefit of a ruling under s 18 of the Evidence Act 1995 can be held to be not available to give evidence, and therefore that person's prior representations may be admissible pursuant to s 65(2). That is exactly the position that has arisen in this case. 2. It is clear from [3] of Ms Fauvette's statement that at the time she made the statement she had ceased to be the de facto wife of the accused, albeit they were still living under the same roof and despite the fact that they were both parenting their children together. They could still be regarded as close friends at that time. At the time that Ms Fauvette was called to give evidence she swore on oath that she had resumed her relationship with the accused. Their reconciliation had occurred "roughly about 18 months ago." 3. Her evidence is directly relevant in the accused's electronically recorded interview, exhibit J, the transcript of which is MFI 4. The accused said commencing at around Q192 that on the afternoon of 28 December 2015 he went home in the afternoon probably at about 2pm or 2.30pm to his residence at Shalvey. He said that he arrived home at about 3pm. He then said that he then had a "kip." Although that word does not appear in the answer typed to Q201 that is what I heard him say in exhibit J. He then gave evidence of waking up, but he could not recall when he woke up. He was asked whether he saw his partner and he said that he did and that she and their sons were at home. He said he interacted with his wife and children, that evening when he was not asleep. He went on to say that they, meaning the accused and Ms Fauvette, had friends staying there. The accused made reference to Ms Fauvette's cousin. The accused could recall Ms Fauvette's cousin's two young children also being at home. He recalled that the cousin's name was Prue, albeit that in Ms Fauvette's statement the name has been contracted to Pru. 4. A little later the accused thought he may have woken up from his afternoon "snooze" at about 6pm, and in answer to Q221 said that he saw his partner, meaning Ms Fauvette, before he went to bed. Q222 and its answer are these: "Q. So you've slept at home, what's the next movement? You, you get up in the morning at what time? A. Probably about 5 or 6, or something." The accused was asked whether he interacted with his partner after waking up but the accused said, "I think they were still asleep mate, to be honest," albeit that the word "asleep" does not appear in the transcript of the electronic recorded interview, I heard the word "asleep" when I listened to exhibit J. The accused then said that after getting up he started to get into his utility which he was driving and that he was then going to drive it to work but first stopped to fill it up with petrol at a service station. 1. In short form the accused says that on the evening of 28/29 December 2015 he slept at home in his bed but the effect of the evidence of Ms Fauvette is that although he did come home in the afternoon he left at 4pm and she did not see him again until she went to bed about midnight. Her next attempt to interact with the accused was "about 6am" when she woke up and she believed that the accused was not home. She believed that the accused was not home because she could not hear his snoring and she looked into his room at about the same time and she saw that he was not present in his room. 2. That, of course, does not exclude the possibility that the accused arrived home sometime after midnight and left sometime before 6am. Of course, the 6am is only an estimate made by Ms Fauvette, and what was said by the accused in the electronic interview is that he may have left earlier than 6 and that he did not believe he had any interaction with Ms Fauvette on that morning because she was still in bed. That leaves open the possibility that he left prior to her arising. 3. The evidence is also helpful in that it explains the sequence of text messages, the subject of some evidence already led, but the evidence needs clarification because of some obvious errors in the timing of calls on the telephone devices that were used to send text messages. 4. The evidence is highly relevant and needs to be called by the Crown to rebut what was raised by the accused in his electronically recorded interview which has been played to the jury and tendered in the Crown case and which the Crown has a duty to disprove in order to succeed in establishing its case beyond reasonable doubt. 5. There is no reason, in my view, to doubt the reliability of the representations that she made, subject to any inference to be drawn from her representations that might suggest that he had not come home at all, when such is not a valid inference from what she actually said, as I have sought to explain. The representations were made by Ms Fauvette to Senior Constable Tim McTaggert of the Windsor Police on 19 January 2016, i.e within three weeks of the occurrence of the explosion of the clandestine drug laboratory at Mr Stewart's residence in East Kurrajong. 6. They were made in circumstances that make it highly probably that the representations are reliable. They are matters that would have still have been fresh in the memory of the witness. She still had a relationship with the accused in which they lived together as friends and brought up their children together as responsible parents. It would appear to have been a relationship that was not marked by the problems usually associated with separating or divorcing couples and the relationship was such that there has since been a reconciliation. In those circumstances, one would not believe Ms Fauvette to be telling untruths. 7. Furthermore, insofar as there was an ongoing relationship between Ms Fauvette and the accused at the time she made the statement, it can be seen that it may have been against her interest to assist the police by saying what actually occurred because it had the potential to deprive Ms Fauvette of the accused as a source of income and support for her and her children if he be convicted. Furthermore, the electrically recorded interview, exhibit J, was made commencing at midday on 30 December 2015 at the Hawkesbury City Wastewater Depot at South Windsor. I understand that it was only subsequent to that that the accused was arrested and charged. In other words, the statement by Ms Fauvette was made a long time prior to the arrest and charging of the accused. 8. In the circumstances, I am satisfied that the Crown has established the matters required to be established pursuant to s 65(2)(b), (c) and (d), albeit that paras (b), (c) and (d) are in the alternative. I am also satisfied on consideration of the authorities that, relevantly, Ms Fauvette was not available to give evidence. 9. The accused, however, objects to the tender of the statement and asks me to make a ruling under s 137 of the Evidence Act excluding the evidence on the ground that its probative value is outweighed by the danger of unfair prejudice to the defendant. Essentially, the accused argues that the admission of the evidence would operate unfairly against him because he would not have the opportunity of cross-examining the maker of the representations, that is, Ms Fauvette, and that would cause him undue harm because her evidence would not have been tested, let alone having been sworn, and that there would be the danger that the jury would weigh the statements made by the accused in his electronically recorded interview against the representations made by Ms Fauvette on 19 January 2016 and use the evidence inadmissibly to reject what was said by the accused. 10. However, the fact that the authorities establish that s 65 can be relied upon if the witness in question obtains a favourable ruling under s 18 axiomatically requires that the representations of the witness which are admitted could not be tested by cross-examination. This matter was dealt with by Dixon AJA in Fletcher v The Queen [supra] between [67] and [76] of his reasons and here we are in exactly the same position. Furthermore, as had occurred at first instance in Fletcher v The Queen, directions will be given by me to the jury about the representations adduced from Ms Fauvette by the Crown, pointing out to the jury that her statement was not sworn, that her statement has not been tested in cross-examination and, therefore, the weight that the jury accords the statement must be attenuated vis-à-vis sworn evidence and, in particular, evidence that has been tested. Furthermore, I shall point out to the jury the fact that, despite what is said by Ms Fauvette in [6] and [7] of her statement, the statement clearly admits to the possibility that the accused came home shortly after midnight and left shortly before the hour at which Ms Fauvette arose which she only puts at "about 6am". 11. The submissions of the accused amount, in my view, to no more than the suggestion that the jury will ignore the directions that I shall give about the evidence adduced from Ms Fauvette's statement but, in our system, the jury are always held to heed judges' instructions and, furthermore, that they do adhere to judges' instructions. 12. Nothing of any substantive nature has been put before me to indicate why it might be thought that Ms Fauvette, if cross-examined, would resile from her statements. In particular, no prior inconsistent statement or subsequent inconsistent statement has been brought to my attention by the accused. In the circumstances, I am of the view that it is unlikely that the evidence would be misused by the jury so that there is little, if any, danger of unfair prejudice and, clearly, the probative value of the evidence is much, much greater than any putative unfair prejudice to the defendant. 13. Accordingly, I admit the representations in question with the excision of [12] of the statement which is clearly a matter than does not advance the Crown case and, further, adduces some hearsay, that is, what was happening in the media which, is always a very unreliable matter to rely upon.