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. Characterisation of the evidence 1. As noted at [3] above, it is uncontroversial that the contents of the records of interview are prima facie inadmissible as proof of the facts asserted in them by reason of 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. (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. An exception to the hearsay rule is 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)). (3) However, this section does not apply in a criminal proceeding to evidence of an admission. 1. As noted above at [7], the prosecutor submits in the alternative that the evidence can be admitted on this basis. In the prosecutor's submission, the relevant non-hearsay purpose which would enliven s 60(1) is "to enable the Court to place into an appropriate context the sections of the interviews selectively put to the witnesses in cross-examination and to enable the Court to identify which statements made (or questions put) in the interviews were misquoted when read [by] Senior Counsel for the defendant to the witnesses". 2. The difficulty with this submission is that if the evidence is admissible by virtue of s 60, it is by no means clear that the exceptions to the credibility rule provided in s 108 can have any application. 3. The credibility rule is contained within s 102 of the Evidence Act, which provides: 102 The credibility rule Credibility evidence about a witness is not admissible. 1. "Credibility evidence" is defined in s 101A, extracted above at [3]. The records of interview are not only relevant to the assessment of the witnesses' credibility but also go to the contents of the interviews themselves which relate to the commission of the offence (although they are not prima facie inadmissible as proof of the asserted facts by reason of s 59 of the Evidence Act). Section 101A(a) therefore does not apply to the records of interview. 2. In relation to s 101A(b), accepting that the records of interview affect "the assessment of the credibility of the witness or person", it is then necessary to ask whether they are relevant "for some other purpose for which [they are] not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6". 3. If they are admissible for a non-hearsay purpose, i.e. the purpose proposed by the prosecutor and extracted above at [11], the records of interview are relevant for an admissible purpose other than the assessment of a witness' credibility and therefore do not constitute credibility evidence as defined by s 101A. 4. The consequence of that is that the records of interview would be admissible under s 60 and, absent any restriction imposed on them by the Court, would be admitted for all purposes for which they are relevant. 5. It appears to me that s 60 and s 108 cannot be coterminous paths to the admissibility of a piece of evidence but are required, by virtue of s 101A, to be mutually exclusive. 6. I consider that the evidence is admissible for the purpose articulated by the prosecutor at [11], with the consequence that s 108 need not be considered. Sections 108(1) and 108(3) 1. However, lest my analysis of the above provisions be incorrect, or on the counterfactual assumption that the evidence is not admissible by reason of s 60 of the Evidence Act, I proceed to consider the submissions of the parties in relation to ss 108(1) and 108(3) of the Evidence Act. 2. In R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [339]-[340], the Court (Mason P, Wood CJ at CL and Sully J) said: [339] … Section 108(1)], accordingly, has a more restricted application than s 106, and tends to reflect the common law rule that prevented evidence being called in a party's case that might tend to bolster the credit of a witness called by that party (R v Turner [1975] QB 834 at 842). The provision broadly accords with the common law rule, which permitted re-examination that was directed towards explaining away or qualifying facts elicited in cross-examination, which were prejudicial to the witness's credit, or from which prejudicial inferences could be drawn: Wentworth v Rogers (No 10) (1987) 8 NSWLR 398. [340] The ambit of permissible re-examination is set by s 39 of the Act which provides: 39 On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave. 1. In Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, the common law position was explained by Glass JA, with whom Kirby P and Hope JA agreed, at 409: It is well established that it is proper in re-examination to elicit from the witness facts which explain away or qualify facts which have been elicited in cross-examination which are prejudicial to the witness' credit or from which prejudicial inferences could be drawn: R v Phair [1986] 1 Qd R 136 at 137; Wojcic v Incorporated Nominal Defendant [1969] VR 323 at 326. The rule marches in tandem with the related principle that when a witness has been cross-examined as to part of a written or oral statement made by him, examining counsel becomes entitled to prove in re-examination such other parts of the statement as are necessary to explain or qualify it; Meredith v Innes (1930) 31 SR (NSW) 104 at 11248 WN 5 at 6-7. Both principles apply to the further cross-examination of the plaintiff. 1. The defendant submits that the prosecutor has not identified how the tender of the entire record of interview deals with evidence adduced in cross-examination. The defendant's position is that the prosecutor needs to establish with precision how playing the entire records of interview explains away or qualifies any facts given in cross-examination in order to rely on s 108(1). 2. Moreover the defendant submits that had the prosecutor been concerned about uncertainty or misstatements or misquotations, it could have cured those concerns by way of re-examination at the time and that the "moment has now passed". 3. In response to that submission, the prosecutor submits that it has signalled its intention to tender the records of interview during the re-examination of each witness. Although it concedes there was no explicit comment made in relation to its intention to do so in respect of Mr McKenzie's record of interview, it says its position with respect to all of the records of interview was clear at that time. 4. The prosecutor submits that to tender the entire records of interview rather than to re-examine by reference to specific passages is a more convenient and efficient way to proceed given the extensive use made by the defendant of the records of interview during the cross-examination of each of the witnesses. 5. In relation to s 108(3), the defendant conceded that it has been suggested that the witnesses fabricated their evidence via collusion, and referred to R v Ali [2000] NSWCCA 177 ('Ali'), in which Sperling J, with whom Priestley JA and Foster AJA agreed, said at [46]-[47]: [46] Different considerations apply in relation to s108(3)(b). Where it is or will be suggested that a witness has fabricated evidence (or that the evidence is reconstructed, or the result of suggestion), a consistent out-of-court statement made as part of the train of events leading to the trial for the offence may not be admissible because it adds nothing to what is said by the complainant in evidence at the trial. In such a case, the out-of-court statement does not rationally answer the suggestion of fabrication, reconstruction or suggestion in relation to the evidence given by the complainant in court. The out-of-court statement merely tells the same story in materially the same context as the evidence given in court. It does nothing for the complainant's credibility that the same story has been told out of court in such a case. [47] By contrast, it [is] a very different situation where evidence has been adduced of a prior inconsistent statement. In such a case, a consistent statement made at about the same time, coupled with an explanation for the inconsistent statement which is connected with the truth of the consistent one has the potentiality to answer the attack on the witness' credibility in a rational way. That is this case. What was said to Ms McLaren, in conjunction with the explanation for the inconsistent statement, had the capacity to provide a rational answer to the attack on the complainant's credibility based on the inconsistent statements made to the DOCS officers in the following month. 1. In R v Johnston [2004] NSWCCA 58 ('Johnston'), James J, with whom Santow JA and Whealy J agreed, said at [162]: In my opinion, it can be inferred from the report of the argument before her Honour about the admissibility of the documents and from her Honour's decision, that her Honour accepted the Crown Prosecutor's submission that the documents did not have any probative force in rebutting the suggestion that the applicant's evidence at the trial had been fabricated or re-constructed. The documents were made some months after 17 August 1994. Furthermore, the documents were made several weeks after the applicant had been interviewed by police, arrested and charged with the murder of Mr Howlett. The applicant had had several weeks in custody in which he would have had the opportunity to fabricate or re-construct a self-serving account of what had happened which would exonerate him. 1. In that regard, the defendant submits: 1. Each of the interviews was carried out over eighteen months after the works were carried out on the site; 2. Each of the interviews was carried out in circumstances where the witnesses admit to speaking to one another about the works; 3. Mr Edgar gave his first interview on 21 October 2014 which was entirely inconsistent with the interview he gave to Mr Myles; 4. Mr McKenzie had a third party contaminating his interview; and 5. Mr Myles contaminated Mr Draeger and Mr McKenzie through the use of the evidence Mr Edgar gave him. 1. The prosecutor submits that the present case is far removed from that considered in Ali on the basis that the prior consistent statements contained in the records of interview do meaningfully rebut the defendant's accusation of fabrication. Mr Howard, senior counsel for the prosecutor, took the Court to aspects of the witness' cross-examination in which he said Mr Steirn, senior counsel for the defendant, had obtained answers favourable to the defendant's case by taking them to selective passages in the interview in isolation. 2. I consider there is force in the submissions of the defendant, particularly whether, to the extent the witnesses have had their credibility impugned by allegations of fabrication and collusion, the evidence is capable of rehabilitating their credibility given that the prior consistent statements are consistent with the basis upon which the defendant alleges the fabrication and collusion took place. In that regard, I have considered what was said by the Court in Ali. 3. The prosecutor was careful to distinguish accusations that the witnesses were fabricating evidence which they provided orally in these proceedings from accusations that they fabricated answers in their earlier records of interview. It was put that the records of interview may rebut the accusation that they fabricated their sworn evidence in these proceedings. 4. However, I consider that the fundamental accusations must run together. To the extent that the accounts are the same, it would not be sensible to conclude that the records of interview support the evidence given in these proceedings if I were to accept the defendant's proposition that the witnesses colluded and fabricated their evidence. 5. To that extent, the probative value of the records of interview is limited to the extent that the earlier statements are ad idem with the evidence the witnesses have given in the trial. Ali and Johnston provide guidance to the Court in that regard. 6. Notwithstanding the force of those arguments, I consider that there is also force in the position of the prosecutor that the viva voce evidence given by the witnesses in these proceedings will be made more intelligible and possible misquotations and contextual omissions will be corrected by the admission of the records of interview for the purpose outlined above at [11]. 7. Although it was put by the prosecutor that the tenor and demeanour of the witnesses as revealed in the audio recordings of the interviews would assist in determining whether the witnesses fabricated their evidence, I note Gleeson CJ, Gummow and Kirby JJ's comments in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] about the somewhat limited utility of such factors and the inherent difficulty of ascertaining a witness' demeanour when only access to the audio is available. To the extent demeanour will assist in the determination of the witness' reliability, I consider that their demeanour giving evidence before the Court is a surer guide than what may be ascertained by reference to the audio of their earlier records of interview. 8. Weighing up these factors and having carefully considered the extensive references to the transcript and records of interview made by the prosecutor to make good its claim that the admission of the records of interview will clarify and correct matters to which the witnesses were taken in cross-examination, I consider that if, contrary to my primary view that s 60 of the Evidence Act is the proper path for admission, s 108(1) would have permitted the prosecutor to tender the records of interview as credibility evidence without the necessity of the Court's leave. 9. If it were necessary to consider s 108(3) of the Evidence Act, it is clear that it has been and will be further suggested that the evidence of the witnesses has been "fabricated or re-constructed". Having regard to the s 192 considerations, I would have determined to grant leave for the records of interview to be admitted on the bases that it would not unduly lengthen the hearing, the fairness of doing so is balanced between the parties, the evidence is important to properly understand the testimony of the witnesses, and recognising that the present hearing is a criminal trial. 10. However, the records of interview were admitted under s 60 (which I have determined they should be), s 108(1) or s 108(3), I consider that submissions by the defendant, particularly in relation to Ali and Johnston, do affect their probative value such that there are grounds for restricting their use to a limited purpose pursuant to s 136 of the Evidence Act. Appropriate orders 1. In summary, despite the force of the submissions of the defendant in relation to the matters arising in s 108 of the Evidence Act, considering the matters outlined above at [35], I have nevertheless determined to allow the evidence under s 60 for the purpose outlined above at [11]. 2. In the circumstances, having regard to the prejudice that might be occasioned to the defendant by this admission, I have considered s 136 and 137 of the Evidence Act. The latter section provides: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. Whilst the probative value of the evidence is somewhat limited in circumstances where it is adduced for the purpose of providing background against which to understand the other evidence, I nevertheless consider that the danger of unfair prejudice is also relatively low especially given that the records of interview have been extensively used in the proceedings already and are not, in a broad sense, incompatible with the defendant's case. 2. However to avoid prejudice to the defendant, and having regard to the fact that the evidence is of somewhat limited probative value, I have determined to limit the use of the evidence pursuant to s 136, 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. Therefore, I admit the records of interview into evidence but only for the limited purpose articulated by the prosecutor at [11] and not as evidence of the facts asserted within the interviews themselves. ********** 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