Supreme Court New South Wales Medium Neutral Citation: R v Rossi-Murray; R v Byrnes [2019] NSWSC 479 Hearing dates: 15 – 18, 22 – 25 October 2018 Date of orders: 25 October 2018 Decision date: 02 May 2019 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: (1) The application for leave to cross-examine the witness James Millar under s 38 of the Evidence Act 1995 (NSW) is rejected. (2) The application for leave to adduce the prior representation made in the statements of the witness James Millar is rejected. Catchwords: CRIME – witness suffered head injuries which he says affect his memory of statements earlier made – witness is a prisoner – effect and relationship between ss13, 38, 65, 66, 192, 43 and 137 of Evidence Act – earlier statements not admitted – leave for the Crown to cross-examine refused Legislation Cited: Evidence Act 1995 (NSW), ss13, 38, 43, 60, 65, 66, 137, 142, s 165, 192, cl 4.1 of the Dictionary Cases Cited: Browne v Dunn (1893) 6 R 67 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 RPS v R (2000) 199 CLR 620; [2000] HCA 3 Category: Procedural and other rulings Parties: Regina (Crown) Barmah Rossi-Murray (Accused) Bradley James Byrnes (Accused) Representation: Counsel: P Barrett (Crown) A Webb (Accused Rossi-Murray) H White (Accused Byrnes) Solicitors: Office of the Director of Public Prosecutions (Crown) Blair Criminal Lawyers (Accused Rossi-Murray) PW & Associates (Accused Byrnes) File Number(s): 2016/00205098; 2016/00212466 EX TEMPORE Judgment 1. HIS HONOUR: Before the Court is an issue that is not without complication. The Crown seeks to call Mr James Millar to give evidence. Mr Millar has been called, on the voir dire, on account of the matters quite properly brought to my attention by the Crown, because of the material that was available to the Crown relating to the evidence, or the answers to questions, that were likely to be given by Mr Millar. 2. The witness is a prisoner but not a prison informer. On one view, he may be reasonably supposed to have been criminally concerned in the events that have given rise to the indictment before the Court. That involvement might be, at least, as an accessory and there are other issues relating to the reliability of the evidence and his credit, including his criminal record and conduct unrelated to these events. 3. None of that is an issue that impacts, in any direct way, on the issues that are before the Court. However, given those issues of unreliability I would be required under s 165 of the Evidence Act 1995 (NSW) (hereinafter "the Act") to warn the jury of the reliability of the witness, which in one sense complicates and indirectly impacts upon what is required of the Court in determining the issue that is before it. 4. There are a number of sections of the Act that are relevant but, before dealing with some of those provisions, it is necessary to recite, in summary form only, the nature of the evidence that is sought to be adduced and the evidence that has fallen from Mr Millar on the voir dire. 5. Mr Millar, it seems, provided three statements. The first, dated 3 August 2016, was a statement provided to the Police at Riverstone Police Station. The second is a statement, dated 17 August 2016, and, again, was a statement provided at Riverstone Police Station, which in part asserts the truth and correctness, to the best of Mr Millar's knowledge, of the statement given on 17 August 2016. 6. The third is a statement of 20 January 2017, given at Dawn de Loas Correctional Centre, and is a statement of some five pages. It is obvious from that statement that the statement is an induced statement, which, in turn, I hasten to add, would give rise to some other directions that would be necessary. 7. In evidence on the voir dire, Mr Millar gave testimony to the effect that he was set upon by three men with bats and assaulted; that he spent some hours at the hospital on his understanding; and that he remembers nothing about the attack, which occurred in December/January 2017. Mr Millar attests that he has a selective memory of the three men, which memory is vague; of the time in the hospital, which is also vague and sporadic; and, since then, he has had significant difficulties with his memory in circumstances where he can remember little bits but not much more. 8. In relation to the statements about this matter, for example, he remembers a Police officer coming to the Correctional Centre. He does not remember the date. He does not remember giving a statement and he does not remember signing a statement. The statement, I hasten to add, is MFI 3 in these proceedings, being an extract of the Police officer's notebook. 9. The witness accepts that the signature on the document is his. By that I mean the signature on each of the three statements, the one in the Police notebook which is the last of the statements, and the other two statements, which are what I will call statements that were more formally obtained. 10. He also gives evidence of other accidents or incidents in which he has or may have had serious head injuries. He remembers being in Penrith Court. He remembers going to the Penrith Police Station, but he has little or no memory of the content of any documents. He is, according to the evidence on the voir dire, unable to recall making the statements; unable to recall the events of 2 and/or 3 July 2016; and unable to say whether what he told the Police on the dates that the three statements were made was true. 11. As a consequence of all of the above, the Crown makes an application that Mr Millar be called and that it have leave, leaving aside the formalities for the time being, to cross-examine under s 38 of the Act and ultimately to tender the statements that were made by the witness. 12. Without reciting the contents of the statement, it is fair to say that the statement contains evidence, which, in relation to Mr Byrnes in particular, goes squarely to issues inculpating Mr Byrnes. 13. I do not underestimate the importance of the material to the Crown, particularly in relation to that offence. 14. There are a number of sections of the Act, which have concerned me and which I have raised with counsel. 15. Before dealing with the sections of the Act, I should recount that pursuant to the terms of s 142(1) of the Act, where, in any proceeding it is necessary for the Court to find a fact in order to determine a question going to admissibility of evidence or any other question arising out of the Act, that fact is required to be proved on the balance of probability. That is the standard that I am applying in relation to the material that is now before the Court. 16. While I now will deal with particular provisions of the Act, I note that the statute must be read as a whole to achieve the intention of the legislature, as ascertained from the words of the statute itself, and to achieve harmonious goals: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. 17. The first section that requires some attention is the provisions of s 13 of the Act. Section 13 deals with a lack of capacity and is in the following terms: "13 COMPETENCE: LACK OF CAPACITY (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome. Note : See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities." 1. What is important in the foregoing provision is that it refers to giving evidence about a fact and then refers to a lack of capacity to understand a question about the fact or not to have the capacity to give an answer that can be understood to a question about the fact. 2. It is clear, from the terms of s 13(2) of the Act, that it is in relation to each fact that the question of competence must be determined and a witness may be competent to give evidence about some facts and not about other facts. The interesting aspect is that s 13(1)(a) applies if a person is incapable, that is, does not have the capacity to understand the question about the fact. 3. Nothing in the evidence of Mr Millar suggests that he is incapable of understanding the questions that have been asked of him in relation to the facts in issue. 4. The second pre-condition to the operation of s 13(1)(b) is that the witness, in this case, Mr Millar, must not have the capacity to give an answer that can be understood to a question about the fact. 5. The Court notes that the pre-condition, imposed by s 13(1)(b), is not that he is incapable of giving an answer, or giving an answer that is useful, but, rather, that he is incapable of giving an answer that can be understood to a question about the fact. 6. The interposition of the words "understand" in s 13(1)(a) and "understood" in s 13(1)(b) are important in construing the subsection and clarifying the operation of s 13(1). As already stated that must be applied to each fact. 7. As I said, the witness, on the evidence before me, could understand the questions that were asked of him in relation to every fact that was asked of him and the answer that he gave, which was largely "I cannot recall", was intelligible and comprehensible; that is, he gave an answer that can be understood to the question that was asked of him. 8. I have great suspicion that Mr Millar remembers more than he is prepared to admit and it seems, in light of s 13, the particular facts about which questions were asked. Those questions are in different categories. The first category is one in which I can group together all of the questions about the content of the statements, which I will call for present purposes, the substantive facts. 9. The other facts in issue include the nature of his memory; the degree of his injury; and, to a lesser extent, his credit, which is relevant on the voir dire and in determining whether his evidence has probative value. The question of his capacity is a question that seems to me to be relevant only on the voir dire, although it may go to credit and I am not foreclosing that if he were to be called. 10. The next section that needs to be examined in light of that issue is the terms of s 65 of the Act. That is a provision that applies in criminal proceedings if a person who has made a previous representation is not available and is in the following terms: 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. Usually the section is utilised in circumstances where someone has fled the country or is dead, or the like, but the Act defines unavailability in cl 4 of the Dictionary in relation to persons in the following terms: "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 terms of cl 4(2) make clear that cl 4(1) is a code, that is, if a person does not fit within one or other of the paragraphs in cl 4(1), the person is available to give evidence about the fact. 2. Clause 4(1) most relevantly refers in paragraphs (b) and (c) to persons in the classes there defined in the following terms: "(b) If the person is, for any reason other than the application of section 16, not competent to give the evidence. (c) The person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability." 1. If, as a result of the physical injuries suffered by Mr Millar, Mr Millar was proved, on the balance of probabilities, to be unable to give evidence about a particular fact as a result of that injury, he would fit within paragraph (c) of cl 4.1 of the Dictionary to the Act. 2. The difficulty, I think, relates to whether it has been proved, even on the balance of probabilities, that Mr Millar is mentally or physically unable to give the evidence. If he were mentally and physically unable to give the evidence, I would have no doubt that it would not be reasonably practicable to overcome that inability. 3. But it seems to me, even on the balance of probability, and particularly given my suspicion as to Mr Millar's capacity to remember more than he admits, that the Crown has failed to prove that Mr Millar has a mental or physical inability to give the evidence; has failed to prove that Mr Millar falls within cl 4(c); and has failed to prove he is unavailable. As a consequence, it seems to me, s 65 is not available to the Crown in relation to the tender of the statements. 4. The next particular provision, to which it seems the Court needs to go, is s 38 of the Act. Section 38(1) of the Act is the most relevant provision. Defence counsel has raised issues associated with s 38(6) of the Act. Those provisions are in the following terms: "38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. … (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party." 1. From the foregoing, it is clear that the Crown is the party who seeks to call Mr Millar. Should his evidence be admitted, the Crown may, with the leave of the Court, question the witness as though the Crown were cross-examining him on three bases. Those bases are that evidence is given by the witness that is unfavourable to the party; is a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the Court the witness is not, in examination in chief, making a genuine attempt to give evidence; and thirdly, that the witness has at any time made a prior inconsistent statement. 2. As earlier stated, the witness has said he has no recollection of the statement. He has no recollection of the facts that he provided in the statements, on 2 and 3 July 2016, but does admit that his signatures are the signatures on the document. The documents, I hasten to add, are in the usual form of statements of this kind and in them the witness avers to the fact that the statement accurately sets out the evidence that the witness would be prepared, if necessary, to give in Court as a witness. 3. As earlier stated, at least the last of the three statements was made after a promise or inducement held out by the Director of Public Prosecutions that no information will be used in criminal proceedings against the witness. 4. The evidence that the witness has given, namely, that he does not recall making any of the statements or the underlying facts of the statements, is not inconsistent with the statements previously made. Unless one takes the view that the absence of a memory of the facts is itself inconsistent with the statement, then the statement is not a prior inconsistent statement. 5. In ordinary circumstances, and in the usual case, a failure to remember that which was the subject of a statement of that kind, in terms of issues of some moment, would itself render this earlier statement made one that is a prior inconsistent statement. However, in this case, the witness says his memory is caused by head injuries or the accumulation of head injuries and he is not saying (a) that he did not give the statement; and (b) that it wasn't true. He simply has no memory of either. In those circumstances, I do not consider that the statement is a prior inconsistent statement to the evidence that Mr Millar could give in the proceedings. 6. On the material before the Court, the Crown has proved, on the balance of probabilities, that the evidence given by the witness is unfavourable to the Crown under s 38(1)(a) of the Act. The witness has knowledge and is not making a genuine attempt to give it. 7. I return to s 38(1)(b) of the Act, although, given the determination on s 38(1)(a), it is not necessary to develop the construction of s 38(1)(b). What is required by the terms of s 38(1)(b) is not proof of knowledge but a reasonable supposition that the witness has knowledge. As stated, I reasonably suppose that the witness has knowledge about the circumstances relating to the making of his statements, and to the contents of those statements, which it appears to the Court the witness is not making a genuine attempt to give evidence about. 8. I hasten to add that nothing the witness has said or done and nothing in his demeanour suggests that the witness is being untruthful. 9. Nevertheless, the selectiveness of the memory, which the witness himself admits, gives a reasonable basis for supposing he has knowledge that has not been exhausted by the evidence he is giving. 10. The next section about which the Court must comment is s 66 of the Act. On the basis of the findings earlier made about incapacity; the provisions of s 13; the provisions of s 65; and bearing in mind the definition of 'not available' in the Dictionary to the Act, the witness is available to give evidence. Indeed, he is a prisoner who has been transferred to the Court for the purpose of giving evidence. 11. Section 66 of the Act applies in criminal proceedings where the witness, or the maker of a representation, is available to give evidence. If that person is called, or is to be called, the hearsay rule does not apply to evidence of a representation given by that person, or a person who saw, heard or otherwise perceived the representation if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. 12. It is necessary to put that in less legalistic terms. Briefly, it means that given my conclusion that Mr Millar is available to give evidence, the statements he made earlier, to the extent that they are representations that would otherwise be admissible into evidence, are representations given by him and, therefore, he may be cross-examined on them, and evidence of them adduced by him, or by the police officers that took the statements. 13. I have assumed in the foregoing, and nothing has been put to the contrary, that the material that was the subject of the contents of the statements was fresh in the mind of Mr Millar at the time that the statements were made. I take into account, in determining that they were fresh in the mind of the witness: the fact that the nature of the event seems to be one that would be remembered; the age and health of Mr Millar (at the time that the statements were made, not now); and the period of time between the occurrence, that is on 2 and 3 July 2016, and the dates that the statements were made, the last of which, as I said, was 20 January 2017. 14. The difficulty with the applicability of s 66(2) to the current proceedings is that s 66(3) of the Act excludes from the operation of s 66 a representation which is, for want of a better term, a statement of evidence that a person would give in proceedings such as these. As a consequence, s 66(1) and s 66(2) do not apply if the evidence is adduced by the prosecutor except to the extent that the earlier representation concerns the identity of a person, place or thing. That, of course, does not mean that the evidence could not be put to the witness in cross-examination under s 38 of the Act. 15. I should, as a matter of completeness, deal with the provisions of ss 43 and 60 of the Act. The terms of s 43 allow for the cross-examination of a witness on prior inconsistent statements, provided that the witness is given complete particulars of the statement or a document containing a record of the statement. In the case of a denial of a previous statement, or non-admission of the previous statement, if the circumstances of the making are sufficient to enable the witness to identify the statement, and the extent of the inconsistency is drawn to the attention of the witness, the document may be admitted into evidence. 16. The difficulty in a case such as this is that the witness will not be able to identify the statement, or deny or accept its veracity, no matter how many times or how much of the document is shown to him. Further, as stated in relation to the analysis of s 38 of the Act, the evidence would not be inconsistent with the prior statement. 17. The other provision of the Act to which reference should be made is s 60, which allows evidence that is admitted otherwise to be used to assert the truth of a hearsay representation. That provision would apply only if the evidence is otherwise admitted. 18. I then turn to s 192 of the Act. Leave is sought to cross-examine under s 38, and it seems, during the course of that cross-examination, tender the earlier representations. The matters that I am required to take into account are: whether it would lengthen or shorten the proceedings (I frankly do not consider that to be problematic); the extent to which the grant of leave would be unfair to a party or to a witness; the importance of the evidence in relation to which the leave, permission or direction is sought; the nature of the proceedings; and the power of the Court to adjourn. 19. The power of the Court to adjourn is irrelevant to these determinations, or to this circumstance, simply because the question will still arise, assuming for present purposes, that the witness takes the same approach or gives the same evidence on the voir dire. 20. The nature of the proceedings is an important factor. These are proceedings for the crime of murder, the most serious crime in the criminal calendar, and accessory after the fact to murder. It is the accessory, to which this evidence is most relevant, and as earlier stated I do not underestimate that importance. 21. Lastly, I deal with the provisions of s 137 of the Act. I accept the Crown submission that the fact, if it be a fact, that the witness cannot be cross-examined would not in ordinary circumstances and of itself give rise to an unfair prejudice, or danger of unfair prejudice, such as to outweigh the probative value of the evidence. 22. That is because the Act itself allows for statements to be made and admitted without cross-examination in certain circumstances, including, for example, the death of a witness, who may have given exactly the same evidence as that which is sought to be tendered in this case. However, the adducing of such evidence would also be subject to any ruling on the application of s 137 of the Act. 23. The difficulty I have, however, in looking at the provisions of s 137, and to some lesser extent the factors in s 192, is that the process is a bizarre one. The witness says "I do not recall anything that happened on the 2 and 3 July 2016". He says, "I do not recall whether I gave a statement", and is not in a position to be able to assert whether the statement that was given about the events of 2 and 3 July 2016 was the truth. 24. In order for the accused to cross-examine the witness, the Court would be putting the accused in the position of establishing the probative value of the evidence of the witness (or his memory or his capacity to give worthwhile evidence), in order to destroy it. That seems to me to be a bizarre effect, and an effect, notwithstanding any direction I might give, that is inconsistent with the notion of a fair trial, and the basis upon which this material can be adduced. 25. The material comes from an induced statement as to which the Court would be required to give warnings of its unreliability. Yet the Court would be required to hold that it is of significant probative value, notwithstanding the Court's warning. More importantly, it would put on the accused an onus to disprove its truth. 26. Lastly, notwithstanding my earlier statement as to the importance of the evidence, it does not seem to be crucial and I consider the danger of unfair prejudice to the accused outweighs its probative value. The circumstance is different from a statement read to the Court because a witness is unavailable. Here the witness is present and the overwhelming impression to a jury would be that the witness simply does not wish to give evidence. It would have the same effect as imposing on the accused the burden of Browne v Dunn (1893) 6 R 67; see RPS v R (2000) 199 CLR 620; [2000] HCA 3. 27. As a consequence, I reject the application for leave to cross-examine under s 38 of the Act, and I reject the application for leave to adduce the prior representation in the statements. ********** 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: 02 May 2019