Admissibility of Witness Statements in Criminal Proceedings

In a criminal proceeding, the court admitted a statement made by a witness regarding warnings received, despite initial uncertainty over the source of the warnings. The court held that evidence is relevant if it could rationally affect the assessment of the probability of a fact in issue in the proceedings.

New South Wales Supreme Court

CITATION : [NAME] v State of New South Wales & ors [2002] NSWSC 1270 FILE NUMBER(S) : SC 21458/96 HEARING DATE(S) : 2/9/2002 JUDGMENT DATE : 2 September 2002

[NAME] State of New South Wales [NAME] PARTIES : [NAME] Director of Public Prosecutions JUDGMENT OF : [NAME] J

COUNSEL : [redacted] Defendant: [redacted] SOLICITORS : [redacted] Defendant: [redacted] CATCHWORDS : Evidence - Statement by witness - Multiple possible inferences - Refining range of possibilities - "Could" in s 55 of Evidence Act 1995 means "it is possible it may" - Section 55 creates wide ambit of relevance - Relationship between s 55 and s 57 considered. LEGISLATION CITED : Evidence Act 1995, ss 55, 57

DECISION : Statement by witness admitted.

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES [NAME] J

Monday 2 September 2002

21458/96 - [NAME] v State Of New South Wales & Ors

JUDGMENT ; On admissibility of evidence; see p 285

1 [NAME]: Objection has been taken to the tender of a statement of 1 June 2000 made by [NAME], who was a witness to the shooting of [NAME] on 20 May 1991. 2 [NAME] had previously made a statement dated 21 May 1991 in which he detailed his knowledge of the events of the evening of 20 May 1991, including the fact that he had seen the person who had committed the murder beside the car in which [NAME] was at the time he was killed, and as the person who was responsible for the killing ran from beside the car into a nearby park. 3 In the statement of 1 June 2000 reference is made to warnings which are alleged to have been given to [NAME]. One was at about 3 o'clock in the afternoon after the events about which [NAME]'s statement relates. It consisted of a note which he says was left in a blue shoe box outside his then address. On it were written the words "lose your memory". This note was later shown to two female police officers from Internal Affairs. 4 Going to the note: there is nothing more that appears to have been done in relation to this note in so far as it involved [NAME]. 5 Senior counsel for the defendants submits that there is no way in which evidence of that event could rationally affect the assessment of the probability of the existence of a fact in issue in these proceedings. In so submitting he points out that there are obviously multiple sources for any such note. One possible source could be a friend of the present plaintiff, who was then an accused, seeking to do him a favour by causing [NAME] not to give evidence that might be adverse to the plaintiff; a second possibility is that the person was seeking to do a like good turn for [NAME], who was then the other accused; a third possibility is that it may have been somebody associated with [NAME], whether a relative or friend; and a fourth possibility is that it may have been the police. When the event is taken alone there is no way, in my opinion, in which a rational choice can be made between the possibilities to which I have referred. 6 However, senior counsel for the plaintiff says that subsequent events reduce the ambit of possibilities in such a way as to render the evidence admissible. 7 [NAME]'s statement refers to a second incident. That occurred shortly before [NAME] was due to give evidence in the murder trial of the plaintiff and his then co-accused [NAME] at the Supreme Court in Katoomba. The statement indicates that at the time to which I have referred [NAME] saw a [NAME] seated in a large car outside his house. The [NAME] got out of the car and engaged [NAME] in conversation for no apparent reason. And when [NAME] said that he had to go to court the [NAME] said "I wouldn't get involved in it". 8 The possibilities that exist in relation to the note said to have been found in the blue shoe box would seem to me to apply equally it this event. The person involved was described as 6 feet 2 tall inches of solid build, Australian in appearance, a body builder figure with medium complexion, short dark hair, and clean shaven. That could apply to any one of a number of people in the community. So it is non-specific and, in my opinion, does not advance the ability of the court to choose rationally between the competing possibilities. 9 However, there is a third event referred to in the statement. It followed a meeting between [NAME] and a person who was described as a police officer from Queensland, who I infer was assisting the Royal Commission into the Police Service which was conducted by Wood J, the now Chief Judge of the Common Law Division. The statement reveals that some two weeks prior to the witness meeting with the officer named in the statement, he saw the same [NAME] who had earlier warned him not to become involved in the [NAME] trial parked in a car outside his house. Again, the man approached [NAME] and asked him about the [NAME] matter, to which [NAME] replied that it was coming up in the Royal Commission. Thereupon the person in question said to him "don't get involved". 10 After the witness had seen the police officer from Queensland he again saw the same [NAME] parked in the same car outside his house and a conversation similar to that to which I have just referred ensued, in the course of which the [NAME] again advised [NAME] not to get involved. The person who gave this advice and whose description I have already adverted to was not a person known by name to the witness [NAME] but was a person who he had previously seen in the Randwick area and who used to train at the gym above the laundromat outside which [NAME] was killed. 11 At the time of the two last mentioned approaches by the unidentified large [NAME] the Royal Commission into the New South Wales Police Service appears to have been proceeding, and as has emerged from other evidence already given in this case the [NAME] murder and matters associated therewith were matters which it was anticipated would be the subject of evidence. 12 On behalf of the plaintiff it is submitted that by the time the last two mentioned approaches were made there was no likelihood that the person who made the approaches was in any way related to the deceased or to either of the accused. By the time the Royal Commission was underway [NAME] had been dead for some years. By the time the Royal Commission was approaching evidence relevant to the [NAME] killing both accused had long since been acquitted. And so, as a rational inference, the interest of three of the four groups or sources of the earlier threats had, so the argument runs, been eliminated. There may well have been others, but none has been suggested or specified. 13 By the time the two last mentioned approaches were made it is a rational inference that is open to the court that it is more likely than not that the person or persons who would benefit from [NAME] not giving evidence of the kind set out in his statement of 1 June 2000 would be, or be associated with, the police. Whether that would be an ultimate finding may depend upon other facts. And it is no doubt because evidence in trials can only be adduced piece by piece, establishing facts or seeking to establish facts step by step, that s57 was inserted into the Evidence Act, 1995. However, before I come to that section I should advert to the fact that s55 provides that evidence is relevant if it "could" rationally affect the assessment of the probability of a fact in issue in the proceedings. In the sense in which it is used in s55 "could", in my opinion means that "it is possible that it may". Read in such a way s55 has a wide ambit in relation to admissibility, which is consistent with the general policy that is to be found in Part 3 of the Evidence Act. 14 To return to s57: the determination of whether evidence adduced is relevant may depend upon the court making an additional finding of fact, or a particular finding of fact. And that, in turn, may depend upon further evidence being admitted at a later stage of the proceeding which will render such a finding open. 15 The form of s57, in my opinion, gives strength to the approach to s55 to which I have previously adverted. The scheme of ss55, 56 and 57 is to ensure that the court has before it the evidence from which it can draw correct rational conclusions. The provision in s57 that the court may find evidence to be relevant even if such ultimate relevance is subject to further evidence being admitted at a later stage of the proceeding, is an important provision intended to ensure that all evidence that may ultimately assist in coming to conclusions in relation to facts in issue is before the court. 16 In this case the combination of the reduction of the obvious possibilities concerning the shoe box warning by reference to later events moves the situation from what might be described as the wide open to the limited, and when combined with the prospect of further evidence, as contemplated by s57, I am of the opinion that the appropriate course to take is to find that the evidence is relevant subject to further evidence being admitted at a later stage of the proceedings which will make it reasonably open to the court to make a finding as to the nexus between the events to which the statement of 1 June 2000 speaks, and the facts in issue in the present case. 17 For those reasons I will admit the statement of 1 June 2000 on the basis that I have indicated. ********** -

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