Land and Environment Court New South Wales Medium Neutral Citation: Ku-ring-gai Council v John David Chia (No 10) [2018] NSWLEC 176 Hearing dates: 01 and 02 November 2018 Date of orders: 05 November 2018 Decision date: 05 November 2018 Jurisdiction: Class 5 Before: Robson J Decision: See [51] Catchwords: PRACTICE AND PROCEDURE – criminal law –application by defendant to adduce defendant's record of interview during cross-examination of prosecution witness – hearsay objection – whether exception to hearsay rule applies – whether record of interview constitutes admission EVIDENCE – record of defendant's compulsory interview sought to be tendered by the defendant – hearsay objection – whether exception to the hearsay rule applies – whether the Court should admit evidence only for a limited non-hearsay purpose Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 122T, 122U Evidence Act 1995 (NSW) ss 59, 60, 81, 82, 136 Interpretation Act 1987 (NSW) s 21 Cases Cited: Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Ronald Edward Medich (No. 20) [2017] NSWSC 186 R v Rymer (2005) 156 A Crim R 84; [2005] NSWCCA 310 Seven Network Ltd v News Ltd (No 8) (2005) 224 ALR 317; [2005] FCA 1348 Texts Cited: Australian Law Reform Commission, "Evidence – Interim Report" [1985] ALRC 26 Odgers, Stephen, Uniform Evidence Law (13th ed, Thomson Reuters, 2018) 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 1 November 2018 (at Tcpt, 1 November 2018, p 965(43-45)), Mr Steirn, senior counsel for the defendant, sought to adduce an audio recording, being an interview undertaken between officers of the prosecutor and the defendant, whilst cross-examining a prosecution witness, Wendy Miller. Mr Howard, senior counsel for the prosecutor, did not object to the tender but submitted that the interview should only be admitted into evidence on a limited basis pursuant to s 136 of the Evidence Act 1995 (NSW) ('Evidence Act'). 2. The recorded interview in question took place on 5 February 2015 and was obtained compulsorily by the prosecutor pursuant to the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). At that time, s 122U of the EPA Act provided: 122U Provisions relating to requirements to furnish records, information or answer questions (1) Warning to be given on each occasion A person is not guilty of an offence of failing to comply with a requirement under this Division to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence. (2) Self-incrimination not an excuse A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty. (3) Information or answer not admissible if objection made However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if: (a) the person objected at the time to doing so on the ground that it might incriminate the person, or (b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person. (4) Records admissible Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person. (5) Further information Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground: (a) that the record or information had to be furnished or the answer had to be given, or (b) that the record or information furnished or answer given might incriminate the person. 1. The defendant was interviewed by Ms Miller and another officer of the prosecutor, Tony McCormack. Also in attendance was the defendant's solicitor. The defendant participated under objection on the grounds that he might incriminate himself pursuant to s 122U(3). The interview is therefore not admissible in evidence "against" him in criminal proceedings. 2. On the afternoon of 1 November 2018, the Court heard the entire record of interview, approximately one hour in duration, which was played by the defendant in open court on the voir dire. 3. The Court heard detailed submissions, including references to relevant authorities, from each of the parties in relation to the admissibility of the interview on 1 and 2 November 2018 (at Tcpt, 1-2 November 2018, p 973(45) – p 1009(21)). 4. It is submitted by the defendant that the word "against" in s 122U(3) qualifies the circumstances in which the record of interview is inadmissible such that the defendant can choose to waive the protection provided by the section if he chooses to tender it himself. 5. As noted above, the prosecutor does not object to the tender, but submits that given the record of interview is hearsay, the interview should only be tendered for a limited purpose under s 136 of the Evidence Act. 6. The hearsay rule is contained in s 59 of the Evidence Act, which provides: 59 The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. Note. Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. 1. The term "previous representation" is defined in the Dictionary to the Evidence Act in the following terms: previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. 1. I accept the agreed position between the parties that the record of interview does constitute hearsay evidence. It is therefore prima facie inadmissible as proof of the asserted facts which it contains. Some relevant exceptions to the hearsay rule are contained in s 60 of the Evidence Act, which provides: 60 Exception: evidence relevant for a non-hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)). Note. Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594. (3) However, this section does not apply in a criminal proceeding to evidence of an admission. Note. The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay: see section 82. 1. It is the position of the prosecutor that the record of interview can fall within the exception provided by s 60(1) of the Evidence Act. As I understand it, this was put on the basis that it is admissible as evidence of the fact of the conversation rather than the truth of the defendant's representations. 2. If the evidence is accepted on this basis, the prosecutor submitted that the Court should accept the evidence on a limited basis so that it may not be used as evidence of the truth of the representations. 3. It did so on the grounds that, first, the statements in the record of interview are predominantly self-serving; second, the interview was conducted some months after the incident and was an interview under compulsion which the defendant attended with legal advisers; third, the defendant has consistently objected to the use of the record of interview up until 1 November 2018; and fourth, that admission of the material on the basis sought by the defendant would not allow the evidence to be tested in cross-examination such that, in all circumstances, the unrestricted tender of the record of interview would be unfairly prejudicial. 4. The general discretion to limit the use of evidence is contained in s 136 of the Evidence Act which provides: 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing. 1. The prosecutor submitted that there was not only a danger that the record of interview would be unfairly prejudicial to the prosecution but also that it would be misleading or confusing if the interview were used as to the truth of the contents because it would be putting the defendant's version of events "under legal advice" to investigators without enabling any testing of that evidence. 2. The defendant submitted that the record of interview is not admissible under s 60 because it contains admissions, thereby attracting the prohibition contained in s 60(3). The term "admission" is defined in the Dictionary to the Evidence Act in the following terms: admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding. 1. The defendant's position therefore is that the interview ought to be admitted under s 81 of the Evidence Act, which provides: 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. 1. Section 82 qualifies the circumstances in which an admission can be adduced under s 81. It provides: 82 Exclusion of evidence of admissions that is not first-hand Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless: (a) it is given by a person who saw, heard or otherwise perceived the admission being made, or (b) it is a document in which the admission is made. Note. Section 60 does not apply in a criminal proceeding to evidence of an admission. 1. If the record of interview does contain admissions, s 82 does not preclude the record of interview being admitted under s 81 because the recording of the interview is a document in which the admissions are made (remembering that s 21 of the Interpretation Act 1987 (NSW) defines "document" as including "anything from which sounds, images or writings can be reproduced with or without the aid of anything else"). 2. The defendant says the entire record of interview should be admitted into evidence under s 81. 3. In view of the position of the parties, the matters which arise for the Court's consideration (accepting there is some overlap) are as follows: 1. Is the record of interview precluded from being admitted by the operation of s 122U of the EPA Act? A positive answer to this question would be dispositive of the attempted tender. 2. If (1) is answered no, does the record of interview contain admissions? 3. If (2) is answered yes, should the entire record of interview be admitted into evidence under s 81 of the Evidence Act? 4. If (1) is answered no and (2) is answered no, is the evidence admissible under s 60 of the Evidence Act? 5. If (3) or (4) is answered yes, should the tender be on a limited basis as provided by s 136 of the Evidence Act? Is the record inadmissible by reason of s 122U? 1. Section 122U(3) of the EPA Act relevantly provides that where an objection is taken, "any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings" (emphasis added). This wording would tend to suggest that the prosecutor rather than the defendant is precluded from admitting the evidence. 2. It is notable in that regard that the provision provides that any information obtained in a compulsory interview is not admissible in "evidence against the person" as opposed to providing that the evidence is inadmissible in evidence in "proceedings commenced against the person", or some other formulation. 3. Therefore, on its plain words, I find that s 122U(3) of the EPA Act does not prevent the defendant from adducing his own compulsorily acquired interview by reason of his objection (although he is doing so in the prosecutor's case). 4. This conclusion also accords with a purposive interpretation of s 122U(3) of the EPA Act which was presumably enacted to protect a person required to answer questions by law from self-incrimination. It can hardly be supposed that such a person, properly advised, would seek to adduce the evidence in his or her own case (or indeed in the prosecutor's case but of his or her own volition) if it was self-incriminating in the sense protected against by s 122U(3). 5. Accordingly, I do not find that s 122U of the EPA Act is a complete answer to the question of admissibility in the present circumstances and proceed to consider the other matters raised by the parties. Does the record of interview contain admissions? 1. The defendant submits that the record of interview contains a number of "admissions", which as defined by the Evidence Act comprise previous representations adverse to his interest in the outcome of the proceeding. The defendant's alleged admissions are as follows: 1. That he was the owner of the property at 53 Carnarvon Road, Roseville; 2. That he agreed that a map provided to him by Ms Miller and Mr McCormack accurately depicted the boundaries of the property; 3. That he engaged Craig Edgar to undertake work on the land; 4. That he engaged James McKenzie to undertake work on the land; 5. That he entered onto land owned by the prosecutor and land owned by Roseville Golf Club; 6. That his solicitor was authorised as his agent and that he spoke to Mr Edgar; and 7. That he had an agreement to maintain land owned by the Roseville Golf Club within 35 metres of his own property. The defendant specified the identity of the people with whom he formed this agreement to the best of his recollection. 1. There is no doubt that the statements made by the defendant constitute "previous representations". The question is whether these matters, arising in a record of interview in which the defendant gives an exculpatory account of conduct which otherwise may amount to the commission of the offence with which he is now charged, constitute representations "adverse to [his] interest in the outcome of the proceeding". The prosecutor submitted that the record of interview should rather be classified as "self-serving". 2. Mr Steirn submitted that certain answers made by the defendant during his interview could be classified as admissions because they provided information to the prosecutor in respect of which it was then able to carry out investigations. For example, in respect of the conversation or agreement with representatives from the Roseville Golf Club, Mr Steirn submitted "the point about that is it's an admission as to who he says he spoke to which allows the council through its investigators to check that story" (at Tcpt, 2 November, p 997(12-14)). 3. Whilst I harboured some concern as to whether the matters raised by the defendant and noted at [27] above constitute admissions given that they were put in the overall context of an exculpatory account, I have decided that the better view is that they do constitute admissions within the definition of that term in the Evidence Act. 4. Taken in isolation, the fact that the defendant was the owner of the property and that he gave instructions to Mr Edgar may seem matters of relatively minor consequence but they are matters which the prosecutor would otherwise have been obliged to prove. In that regard, I consider that it is of some consequence that the interview was obtained compulsorily under the EPA Act which represents an abrogation of the right to silence the defendant would have otherwise had at common law. Should the entirety of the record of interview be adduced pursuant to s 81? 1. Admissions constitute an exception to the hearsay rule pursuant to s 81 of the Evidence Act, as do previous representations "to which it is reasonably necessary to refer in order to understand the admission[s]". 2. The extension of the exception provided by s 81(1) to previous representations necessary to understand the admissions in s 81(2) was presumably provided for in the Evidence Act to protect against the selective tendering of evidence warned against by Hayne J in Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [39]: In general, the prosecution should call "[a]ll available witnesses … whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based". If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements. It is necessary, of course, to take account of statutory provisions governing admissibility of out-of-court admissions that are not recorded. But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements, whether according to what is forensically convenient or on some other basis. And in leading evidence of out-of-court assertions which the prosecution alleges are inculpatory, the prosecution must take the out-of-court assertion as a whole; the prosecution "cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case" (citations omitted). 1. It would not be open to the prosecutor, and I note that the prosecutor properly does not attempt, to admit any "inculpatory" comments from the record of interview as admissions and exclude any exculpatory comments as hearsay. Therefore, the entirety of the record of interview ought to be admitted into evidence under s 81. Does the record of interview fall within one of the hearsay exceptions provided for by s 60? 1. Had I been of the view that the matters raised by the defendant (as noted at [27] above) were not properly classified as admissions, I would nevertheless have been of the view that the record of interview should be admitted under s 60(1) on the grounds that it is admissible as evidence of the conversation rather than as evidence of the asserted facts contained within it. 2. This course was not opposed by the prosecutor, though I note that given that s 60(3) provides that s 60(1) has no application in relation to admissions, this method of adducing the record of interview into evidence could only have been in the alternative to s 81. Should the Court receive the record of interview for a limited purpose under s 136? 1. Under the common law, where evidence which would otherwise have been inadmissible as hearsay was adduced for a non-hearsay purpose, it could only be used for the non-hearsay purpose. Section 60 of the Evidence Act reverses the common law position. 2. In its "Evidence – Interim Report" ([1985] ALRC 26), the Australian Law Reform Commission explained the change to the common law position in the following terms (see also Stephen Odgers, Uniform Evidence Law (13th ed, Thomson Reuters, 2018) at 388-9): Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court's assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose—eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert's opinion—will be admissible also of evidence of the facts stated… 1. Section 136 gives the Court the discretion, in effect, to revert to the common law position by admitting evidence only for a limited purpose. As noted above, the prosecutor submitted that the Court should exercise its discretion under s 136 to admit the record of interview only for its non-hearsay purpose. 2. I have determined that it is not appropriate for the Court to admit the evidence on a limited basis only and therefore decline to exercise my discretion under s 136. My reasons may be shortly stated. 3. First, I note that the common law position has no application in relation to evidence admitted under s 81 (as opposed to s 60) as admissions have not been adduced on the basis of their relevance to some other matter but rather as discrete exceptions to the hearsay rule. This is not, in itself, a determinative consideration but it would be curious to allow admissions (as opposed to other hearsay) into evidence as proof that they had been made and not as proof of the matters admitted. 4. Secondly, I have had regard to the comments of Grove J, with whom Barr and Latham JJ agreed, in R v Rymer (2005) 156 A Crim R 84; [2005] NSWCCA 310 ('Rymer') at [36]-[38]: [36] The present case deals with statements which can be classified as wholly exculpatory. Such relevant doctrine as can be discerned can be traced to origins in the divorce proceedings of Queen Caroline (The Queen's Case (1820) 129 ER 976; 2 Brod & Bing 284) where the advice of the House of Lords was that a statement of mixed matters, some self serving and some against interest, must be placed in whole before the tribunal of fact. [37] The Crown Prosecutor accepted this rule in the case of "mixed" material but contended that, while admissions as statements against interest are admissible at common law (and s 81) based upon the rationale that such are generally truthful, the converse does not apply to self serving statements. [38] That contention should be viewed in the light of the opinion of Kirby P in R v Astill (1992) 63 A Crim R 148 at 156 who, after citing Lord Wilberforce in Ratten v The Queen [1972] AC 378 when his Lordship referred to the distinction between the fact of words spoken and the question of hearsay arising if such fact is to be used "testimonially", said: "There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: '…reliance on the greater trustworthiness of statements made at once and without reflection…' The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten (at 389f): 'The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded … "And later (at 391): 'These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused. 1. If spontaneous statements are at one end of the spectrum of reliability, then contrived, prepared statements are at the other end. A statement of the latter kind was considered by Bellew J in R v Ronald Edward Medich (No. 20) [2017] NSWSC 186 ('Medich'). His Honour characterised the statement under consideration in that case (which he determined ultimately to exclude from evidence under s 135(a) of the Evidence Act) in the following terms at [39]: The statement made by the present accused at the conclusion of his committal hearing, unlike that of the accused in Rymer, was not in the nature of a spontaneous denial in made in response to being initially confronted with an allegation of murder. Rather, it was a prepared statement, in the nature of a contrived denial of the kind to which Grove J referred. The differing circumstances between Rymer and the present case are such that, in my view, there is no warrant to require the Crown to put the accused's statement before the jury. 1. I consider that the present record of interview can neither be characterised as "spontaneous" nor "contrived". It lies somewhere on the spectrum of reliability between Rymer and Medich. That being the case, I consider that there is less prejudice to the prosecutor in the admission of the evidence without a s 136 restriction than might otherwise be the case. Nor do I consider that its admission into evidence would be "misleading or confusing". 2. Thirdly, the fact that the defendant was under an obligation pursuant to s 122T(2) of the EPA Act not to provide any answers which he knew were "false or misleading in a material respect" is a matter which would tend to weigh in favour of the reliability of his answers in the sense referred to in Rymer. 3. Fourthly, whilst the prosecutor submitted that it was prejudiced by the inability to cross-examine the defendant as to the matters recorded in the interview, I consider that a matter which goes to the weight to which I afford the evidence in due course rather than to its admissibility. 4. Fifthly, and to some extent similarly, in admitting the record of interview on an unlimited basis, I am not determining its probative value in relation to any particular purpose. That is a matter upon which I will hear submissions in due course. 5. Sixthly, I consider that there is a more limited role for s 136 to play in proceedings where there is no jury. I note the comments of Sackville J in Seven Network Ltd v News Ltd (No 8) (2005) 224 ALR 317; [2005] FCA 1348 at [21]: I agree… that the policy apparently underlining provisions such as ss 60 and 77 of the Evidence Act should not be undercut by the making of orders under s 136 as a matter of course. This is particularly so where a judge, rather than a jury, is the trier of fact, since the danger of unfairness to a party might be expected to be mitigated by the judge attributing less weight to material that cannot adequately be tested in cross-examination. Even so, the circumstances may be such that the power conferred by s 136 will not only be enlivened but it will be appropriate for the Court to make a direction limiting the use of otherwise admissible evidence. 1. In Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, McHugh J at [94] cautioned against over-reliance on s 136 even in the context of jury trials: As Hunt CJ at CL and Bruce J pointed out in R v BD, it is artificial and wrong to admit evidence pursuant to s 66(2) and then limit the use of the evidence to credibility issues by exercising the power conferred by s 136. In the ordinary case, a warning under s 165 should be sufficient to alert the jury to the dangers of hearsay evidence. For that reason, s 136 should only be invoked in cases where the danger could not be cured by such a warning. No doubt the judge is more likely to limit the evidence to credibility issues when it has been admitted by way of s 108(3)(b) rather than by way of an exception to the hearsay rule. It is a sine qua non for admission via s 108(3)(b) that it is only relevant to credibility — s 102 of the Act. Nevertheless, directions under s 136 should not be made as a matter of course (emphasis added, citations omitted). 1. In the circumstances, I do not consider that there is such significant prejudice to the prosecutor or risk of the evidence being misleading or confusing to warrant making an order under s 136. 2. For those reasons, I have determined to allow the record of interview into evidence under s 81 of the Evidence Act and not to exercise my discretion under s 136 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 November 2018