Ku-ring-gai Council v John David Chia (No 8) [2018] NSWLEC 170

Land and Environment Court New South Wales

Medium Neutral Citation: Ku-ring-gai Council v John David Chia (No 8) [2018] NSWLEC 170 Hearing dates: 26 October 2018 Date of orders: 26 October 2018 Decision date: 30 October 2018 Jurisdiction: Class 5 Before: Robson J Decision: See [23] Catchwords: PRACTICE AND PROCEDURE – criminal law –application by prosecutor to refresh the memory of a witness pursuant to s 32 of the Evidence Act 1995 (NSW) – whether material is credibility evidence – whether exception to the credibility rule applies – leave granted Legislation Cited: Evidence Act 1995 (NSW) ss 32, 101A, 102, 108, 192 Category: Procedural and other rulings Parties: Ku-ring-gai Council (Prosecutor) John David Chia (Defendant) Representation: Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with D Beaufils (Defendant)

Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant) File Number(s): 2016/00293131

Judgment 1. On 26 October 2018, during the re-examination of prosecution witness James McKenzie, Mr Howard, senior counsel for the prosecutor, made a second application under s 32 of the Evidence Act 1995 (NSW) ('Evidence Act') for leave to allow Mr McKenzie to use a document for the purpose of refreshing his memory. The first application was dealt with in Ku-ring-gai Council v John David Chia (No 7) [2018] NSWLEC 169. 2. I granted leave and deferred the giving of reasons. My short reasons follow. 3. Section 32 of the Evidence Act provides: 32 Attempts to revive memory in court (1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document, and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or (ii) was, at such a time, found by the witness to be accurate. (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. 1. In considering whether to grant leave, the Court must also have regard to s 192 of the Evidence Act which is in the following terms: 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. 1. The document to which Mr Howard wished to have the witness refer was again part of a copy of the transcript of a recorded interview which the witness had undertaken in August 2016 with Phillip Myles, a private investigator retained by the prosecutor. The record of interview was used extensively by Mr Steirn, senior counsel for the defendant, during his cross-examination of the witness. 2. The matter about which the prosecutor sought to refresh the witness' memory related to evidence Mr McKenzie gave under cross-examination about a meeting between him, Mr Edgar, the defendant and the defendant's agent, Mr Hyden. The following exchange took place between Mr Steirn, senior counsel for the defendant, and the witness (at Tcpt, 23 October 2018, p 416(41-49)): Q. Why were you coming to the site then on the 21 October? A. I think we were there just to do the last tidy up. Q. Who told you to do that? A. From memory we were at the meeting in John Chia's garage and we sort of said to finish up the job and tidy up the site. Q. With Mr Hyden? A. At the meeting with Mr Hyden. 1. Mr Steirn then accused the witness of fabricating part of this evidence (at Tcpt, 23 October 2018, p 417(7-13)): Q. You see what you are putting to this Court is a fabrication, isn't it, in relation to what happened on the site on 21 October 2014. It's a fabrication, isn't it? A. No. Q. Because you did not attend the meeting with Mr Hyden and Mr Chia until two days later, 23 October? A. That I don't recall. I thought it was before. 1. The prosecutor wished to revive the witness' memory in relation to an answer he gave during the recorded interview in which he had indicated that there were two separate meetings in the defendant's garage at which Mr Edgar and Mr Hyden were present. 2. The prosecutor conceded that given the interview was conducted in 2016, the events were not then "fresh" in the witness' memory within the meaning of s 32(2)(b)(i) of the Evidence Act. 3. Mr Howard submitted that it was nonetheless appropriate that the Court give leave for the witness to have access to the record of interview given that Mr Steirn had extensively referred to the document during the witness' cross-examination. Mr Howard further submitted that Mr Steirn had used the record of interview explicitly on the basis that the events were fresher in the witness' mind at the time of the interview than they were now. 4. In relation to the s 192 discretionary factors, Mr Howard submitted that the grant of leave would not add unduly to the length of the hearing, that it would not be unfair to any party and would allow the witness to recover from the attack on his credit, that the material was important because the defendant was likely to submit that the witness' evidence should be treated with caution or circumspection on the grounds that his credit had been undermined and that the present matter is, clearly, a criminal trial. 5. Mr Steirn objected to the grant of leave under s 32 on two principal bases. First, he submitted that the prosecutor was, in effect, attempting to adduce evidence to re-establish the credit of a witness and that s 108 of the Evidence Act should be applied instead of s 32. 6. Secondly, Mr Steirn said that the granting of leave would be unfair to the defendant within the terms of s 192(2) of the Evidence Act because the evidence in relation to there having been two meetings fell from the mouth of Grant Dahtler, who was being interviewed with the witness, rather than the witness himself. In those circumstances, Mr Steirn submitted that the evidence was an example of the witness' contamination and that his memory should not be permitted to be refreshed on that point. 7. Dealing first with s 32 of the Evidence Act, and having regard to the factors in s 32(2), it was clear that the witness was unable to recollect the date of the meeting without recourse to the record of interview. However, I accept that the events recorded in the transcript were not fresh in the witness' mind at the time the document was prepared. 8. Nevertheless, I determined that it was appropriate to grant leave for the document to be shown to the witness. I formed this view on the bases that it would not add to the length of the trial, would not be unfair to any party and may provide information of importance to the case. 9. In relation to unfairness, I considered the position of Mr Steirn in relation to the evidence being "contaminated" in that it first fell from Mr Dahtler but consider that given this appeared to refresh the witness' memory during the record of interview, it was fair in the circumstances to allow access by the witness to that discrete answer lest the entirety of his evidence (which has taken some four and a half days of the hearing) be doubted on the basis of his answer on this point where an account consistent with the evidence he gave might have been available. I also had some regard to the extensive use made of the record of interview by the defendant during cross-examination of the witness. 10. Accordingly, I determined to grant leave under s 32 of the Evidence Act but proceeded to consider the rule in s 102 that credibility evidence is not admissible. 11. Credibility evidence is defined in s 101A of the Evidence Act which relevantly provides: 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. It was by no means clear that the evidence sought to be adduced by the prosecutor, being the relevant passage from the record of interview, is properly characterised as credibility evidence in the sense that it may be admissible for some purpose other than the assessment of the witness' credibility. The Court did not hear detailed submissions on that point. 2. However, assuming that the evidence is, in fact, credibility evidence, s 108 applies: 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) (Repealed) Note. The Commonwealth Act includes a subsection referring to section 105 of that Act. (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement. 1. My primary view is that s 108(1) means that the evidence is admissible because it was sought to be adduced in re-examination. Therefore, it is unnecessary to have regard to s 108(3). 2. However, if contrary to my primary view, it were necessary to have regard to s 108(3), I consider that the witness' comment that there were two meetings in the defendant's garage is a prior statement consistent with the evidence he has given in these proceedings and that it has been suggested by the defendant that the witness' evidence was fabricated on this point. I would have granted leave having regard to the s 192 discretionary factors for the reasons given above at [15]-[16]. 3. For those reasons, I granted the prosecutor leave to use the limited portion of the record of interview sought to be relied upon for the purpose of reviving Mr McKenzie's memory.