Ku-ring-gai Council v John David Chia (No 12) [2018] NSWLEC 184

Land and Environment Court New South Wales

Medium Neutral Citation: Ku-ring-gai Council v John David Chia (No 12) [2018] NSWLEC 184 Hearing dates: 12 to 13 November 2018 Date of orders: 13 November 2018 Decision date: 14 November 2018 Jurisdiction: Class 5 Before: Robson J Decision: See [44] Catchwords: PRACTICE AND PROCEDURE – criminal law –prosecutor seeks to tender three records of interview of prosecution witnesses – whether admissible as credibility evidence in re-examination

EVIDENCE – credibility evidence – circumstances in which hearsay evidence is admissible as credibility evidence in cross-examination – whether leave required Legislation Cited: Evidence Act 1995 (NSW) ss 59, 60, 101A, 102, 108, 136, 137, 192 Cases Cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 R v Ali [2000] NSWCCA 177 R v Johnston [2004] NSWCCA 58 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 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. The prosecutor sought to tender the audio records and transcripts of three records of interview conducted by Phillip Myles, one in respect of each of the prosecution witnesses Craig Edgar, James McKenzie and Jesse Draeger. The defendant objected to each tender. 2. The Court received detailed written submissions from both parties and heard oral argument on 12 and 13 November 2018. Transcripts of each record of interview were tendered on the voir dire. On 13 November 2018, I determined to allow the records of interview into evidence for a limited purpose and deferred the giving of reasons. My reasons follow. 3. All of the interviews are prima facie inadmissible because they constitute hearsay evidence under s 59 of the Evidence Act 1995 (NSW) ('Evidence Act'). However the prosecutor contends that they also constitute credibility evidence by reason of s 101A of the Evidence Act, which 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. That being the case, the prosecutor relies on the exceptions to the inadmissibility of credibility evidence contained in s 108 of the Evidence Act, which provides: 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) (Repealed) (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. The prosecutor's primary position is that each of the records of interview is admissible to re-establish the credibility of Mr Myles, Mr Edgar, Mr McKenzie and Mr Draeger as evidence adduced in re-examination pursuant to s 108(1). In that circumstance, the prosecutor submits that the Court is not required to grant leave for the evidence to be admitted and nor do the records of interview need to be characterised in whole or in part as prior consistent statements. 2. In the alternative, the prosecutor submits that the records of interview comprise prior consistent statements which can be used to re-establish the credibility of the witnesses pursuant to s 108(3). In that case, the Court would need to grant leave meaning that the factors provided for in s 192 of the Evidence Act would need to be considered. 3. In the event that the evidence is not admissible under any of the exceptions provided by s 108 of the Evidence Act, the prosecutor submits that the records of interview can be admitted on an alternative basis pursuant to the exception to the hearsay rule provided in s 60 of the Evidence Act. I have concerns in relation to the interaction of that submission with the prosecutor's primary submission as I will explain below. 4. The defendant objects to the tender of each record of interview and submits that they do not fall within the exceptions provided by either s 108(1) or s 108(3). Moreover, the defendant submits that the material would be prejudicial to its case and that if the Court were of the view that the interview falls within either s 108(1) or s 108(3), the Court should exercise its discretion to not admit the evidence pursuant to s 137 of the Evidence Act or admit it for only a limited purpose pursuant to s 136 of the Evidence Act.