Abernethy & Hawkins v The Queen
[2020] VSCA 96
•27 April 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0281
| STUART ABERNETHY | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2018 0282
| GABIEN HAWKINS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NIALL and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 February 2020 |
| DATE OF JUDGMENT: | 27 April 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 96 |
| JUDGMENT APPEALED FROM: | DPP v Hawkins & Anor (Unreported, County Court of Victoria, Judge Wischusen, 23 November 2018). |
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CRIMINAL LAW – Appeal – Conviction – Intentionally causing injury – Each applicant made statement to police – Applicants tried together – Applicants sought cross-admissibility of statements pursuant to Evidence Act 2008 s 83 – Each applicant consented to use of statement by the other applicant – Whether substantial miscarriage of justice by reason of judge refusing to permit each applicant to rely upon statement made by the other applicant – Statements did not contain admissions – Evidence of representations not ‘reasonably necessary’ to refer to in order to understand an admission – Statements not admissible pursuant to Evidence Act 2008 s 65(8) – No substantial miscarriage of justice – Leave to appeal refused – Evidence Act 2008, ss 17, 65, 81, 83; Barry v Police (2009) 197 A Crim R 445, Bannon v The Queen (1995) 185 CLR 1, considered; Power v The Queen (2014) 43 VR 261, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants: | Mr C Carr with Ms F Fox | Tony Hargreaves & Partners |
| For the Respondent: | Mr C Boyce QC with Mr M Wilson | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Niall and Emerton JJA (‘joint judgment’). Their Honours have set out in full the circumstances giving rise to the applicants’ convictions for intentionally causing injury, making it unnecessary for me to repeat any of those matters. As their Honours have noted, the sole ground of appeal turns on the admissibility in the trial of each applicant of the statement made to police by the other applicant.
The submission advanced, both at trial and in this Court, was that the statements made by the applicants on the day of the incident were cross-admissible. That is, the statement by Hawkins was admissible in Abernethy’s trial, and his statement was admissible in her trial. The submission relied on ss 81 and 83 of the Evidence Act 2008 (the ‘Act’), which relevantly provide as follows:
81Hearsay 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.
…
83 Exclusion of evidence of admissions as against third parties
(1)Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.
(2)The evidence may be used in respect of the case of a third party if that party consents.
(3)Consent cannot be given in respect of part only of the evidence.
(4)In this section, third party means a party to the proceeding concerned, other than the party who—
(a) made the admission; or
(b) adduced the evidence.
The premise of the argument was that each statement included ‘admissions’ within the meaning of the Act. The Dictionary to the Act defines ‘admission’ as —
a previous representation that is —
(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b)adverse to the person’s interest in the outcome of the proceeding.
According to the judge’s reasons, the relevant admission in Abernethy’s statement was said to be his acknowledgement that he was present when the ‘incident’ occurred and that there had been ‘physical contact, a scuffle or the like, or a struggle’ with the complainant Hunter. As expressed more fully in the written case on the appeal, the admission was
that they were both present, that Hunter had been sitting on the steps when [he] entered, that [he] had restrained Hunter in a headlock whilst he lay on the ground, that William Hawkins was on top of Hunter when Abernethy had him in a headlock.
For the reasons set out in the joint judgment, with which I agree, neither statement contained ‘evidence of an admission’. It follows that s 83 was not engaged. The trial judge was correct to rule as he did.
As the joint judgment notes, it is therefore unnecessary for the purposes of this application to decide whether, if either statement had contained ‘evidence of an admission’ on which the co-accused could rely under s 83(2), the exculpatory content of the statement would also have become admissible. The issue having been fully argued, however, their Honours have proceeded to address it. For reasons which follow, I respectfully disagree with their conclusion.
What evidence is admissible under s 83?
The submission for the applicants was that, once Abernethy’s ‘admissions’ could be used by Hawkins under s 83(2), the whole of Abernethy’s statement must go into evidence – and vice versa. They contended that Parliament must be taken to have intended that the operation of s 83 would ‘mirror’ that of s 81.
Specifically, it was said, the phrases ‘evidence of an admission’ in s 83(1) and ‘the evidence’ in ss (2), (3) and (4)(b) should be read as extending to evidence of the kind which s 81(2) renders admissible. That is, the third party could consent to the use in that party’s case of evidence of the admission, together with evidence of a previous representation:
(a)that was made in relation to [the] 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.
With great respect to my colleagues, I do not consider that this reading of s 83 can be sustained when regard is had to the language, function and purpose of the respective provisions. Dealing first with s 81, each of its subsections has the same function, that is, to immunise evidence of a particular kind against the exclusionary operation of the hearsay rule and the opinion rule. As would be expected, however, the successive subsections of s 81 address different categories of evidence. Thus s 81(1) confers the immunity on ‘evidence of an admission’, whereas s 81(2) operates with respect to ‘evidence of a previous representation’ (provided that it satisfies the requirements of sub-paragraphs (a) and (b).) Plainly enough, these categories are mutually exclusive. ‘Evidence of an admission’ is separate and distinct from ‘evidence of a previous representation … made in relation to an admission’.
Section 83(1) serves a different function. It limits the immunising effect of s 81, by preserving the exclusionary operation of the hearsay rule and the opinion rule in relation to ‘evidence of an admission’ in respect of the case of a third party. This difference in function is the first obstacle to the ‘mirror’ argument. But the much more significant obstacle, in my view, is the use of the phrase ‘evidence of an admission’ in s 83(1), the same phrase as is used in s 81(1).
On ordinary principles of interpretation, the use of the identical phrase in each subsection means that Parliament intended the subject-matter — and hence the scope — of each subsection to be the same. Had the legislature intended s 83(1) to replicate in scope both ss 81(1) and 81(2), express provision to that effect could readily have been made. Instead, s 83(1) has been deliberately confined to ‘evidence of an admission’. There is no warrant, in my view, for this Court to read s 83(1) as if it included words which the legislature did not include.
Further, the argument that s 83 should somehow replicate or mirror s 81 overlooks the fact that the provisions are serving quite different purposes. Section 81(1) is concerned with putting into evidence against a party to proceedings a previous representation made by that person adverse to his/her interests in the outcome of the proceeding. It is a provision which operates to the disadvantage of that person. The rationale for the enactment of s 81(2) is that, as a matter of fairness, the admission should be understood in its proper context. There is an obvious parallel with the ‘mixed statement’ exception to the hearsay rule at common law.[1]
[1]See eg. R v Rudd [2009] VSCA 213.
Section 83, on the other hand, is a wholly beneficial provision, enacted to overcome the unfairness which would exist if accused A were unable to rely on a relevant admission made by co-accused B. That unfairness was recognised and explained by the Australian Law Reform Commission in its Interim Report on Evidence which preceded the enactment of s 83.[2]
[2]Australian Law Reform Commission, Evidence (Report No 26, 21 August 1985) 425 (‘ALRC Report’); See also Bannon v The Queen (1995) 185 CLR 1, 13–15; [1995] HCA 27.
The applicants’ submission would have the surprising consequence that accused A would, by reason only that co-accused B’s statement included an admission, be entitled to rely on whatever self-serving exculpatory material was contained in the balance of B’s statement. The legislative rationale for allowing A to rely on B’s admission is clear and cogent. No rationale was suggested which would explain an extension of s 83(2) to self-serving material of a kind which is ordinarily inadmissible.
Finally, I am unable to agree with the conclusion in the joint judgment that s 83 only applies to an admission which is already in evidence in the proceeding. Nothing in the language of s 83 suggests that it is so confined, nor can I see any rationale for so confining it. Provided that there is ‘evidence of an admission’, the third party should be able to ‘use’ that evidence in that party’s case, whether or not it has been used in the case against the person who made the admission. Although s 83(4)(b) clearly assumes that the evidence has been adduced in the proceeding, s 83(4)(a) does not. Again, if Parliament had intended to impose such a limit on s 83, express provision could readily have been made.
NIALL JA
EMERTON JA:
Each of the applicants has been convicted, following a trial by jury, of intentionally causing injury to John Hunter. The charges arose from a single incident on 17 March 2015.
At the relevant time, the applicants were in a relationship. Abernethy was a serving police officer and Hawkins was on extended sick leave from her job as a police officer. Hunter had also been a police officer. He and Hawkins were in a relationship for a number of years until late 2012 or early 2013. That relationship ended acrimoniously and the acrimony persisted to the time of the incident.
When Hunter and Hawkins separated, Hunter moved out of the house that they owned together at Tower Hill Road, Somers (‘Property’). Hawkins continued to live in the Property with her son, William, who was 17 years old at the time of the incident. Hawkins and William enjoyed the protection of a family violence intervention order (‘Intervention Order’) preventing Hunter from approaching them, or attending the Property.
Settlement negotiations in relation to the Property were protracted and difficult,[3] and no agreement about the disposition of the Property was reached until February 2015, when settlement orders were made by the Federal Circuit Court (‘FCC’). The effect of the FCC orders was that Hawkins would receive around $120,000 for her interest in the Property and the title would be transferred to Hunter alone. Those parts of the Intervention Order that prevented Hunter’s attendance at the Property would expire immediately upon the property settlement.
[3]The relations between Hawkins and Hunter were such that there was evidence at trial that Hawkins had told Hunter that anything he got out of the property settlement ‘would not be worth having’. There was also evidence that the condition of the Property was protected from damage by Hawkins by a security bond in the amount of $10,000.
The property settlement was initially scheduled to occur on 13 March 2015, but it was rescheduled and took place at around 2.00 pm on 17 March 2015.
It appears that the moment the property settlement was completed, Hunter, entitled to and expecting vacant possession, went to the Property. Upon entering, he encountered William, who had been left alone in the house while Hawkins and Abernethy moved belongings elsewhere. Hawkins and William were apparently still in the process of moving out when the property settlement occurred.
When Hunter unexpectedly encountered William words were exchanged. Hunter immediately called ‘triple 0’ to complain that there was a trespasser in the Property. William sent a text message to Hawkins, who in turn called triple 0 to allege a breach of the Intervention Order and demand police attendance at the Property. She then rushed to the Property, with Abernethy following not far behind. Abernethy also called triple 0 with a similar report to Hawkins’.
Once she arrived at the Property, Hawkins again called triple 0 and could be heard by the operator telling Hunter that he was in breach of the Intervention Order and to ‘get out’. For his part, Hunter called triple 0 a second time and complained that Hawkins had turned up and was telling him to get out of his own home. In a further call to triple 0 a few minutes later, Hunter reported that things were starting to get ‘very verbal’ and ‘very nasty’, that William had threatened to break his jaw and that Hawkins was standing at the door refusing to get out. Nine minutes later, Hawkins called triple 0, complained that the police had not yet arrived and stated that Hunter was assaulting William and Abernethy and that the police needed to get there quickly. She described Abernethy and William as ‘restraining’ Hunter.
Hunter gave evidence at trial that when Abernethy arrived, Hunter was sitting on the stairs in the entrance hall talking on the telephone to his partner, Jane Turner. He told Abernethy to leave and that Abernethy was trespassing. Abernethy then walked up to him and, without warning, punched him hard to the right side of his head, which was the side on which he was holding his phone talking to Turner. Hunter said that the blow was of such force that it affected his consciousness and that when he regained his senses he was on the floor of the hall and Abernethy had restrained him in a headlock, which was interfering with his ability to breathe. While he was in this position Abernethy struck him a number of times to the left side of his head. Hawkins attacked him with her feet, kicking the backs of his legs and stomping on his feet and ankles.
Jane Turner gave evidence that while she was on the phone to Hunter she heard Hunter say ‘get out of my house’ followed by a crack that sounded ‘like a gunshot’.
The injuries suffered by Hunter were photographed and were the subject of forensic medical evidence from Dr Maaike Moller. In his sentencing remarks,[4] the judge described Hunter’s injuries as ‘widespread’, with considerable bruising, although there was evidence that Hunter was on blood thinning medication at the time which may have made him more prone to bruising.[5] The judge observed that the location of the injuries was consistent with the account of the attack that Hunter gave to the jury.
[4]DPP v Hawkins & Anor (Unreported, County Court of Victoria, Judge Wischusen, 23 November 2018).
[5]Ibid [20].
When the police arrived, they separated the parties and took statements from Abernethy and Hawkins.
In her statement, Hawkins said she went to the Property because she feared for William’s safety. Describing the physical altercation, she said that Hunter was sitting on the stairs when Abernethy arrived and approached him. Hunter stood up and swung a punch at Abernethy’s head, which was blocked by Abernethy. Hunter then grabbed Abernethy by the shoulders with two hands and there was a scuffle. They ended up on the ground. Hunter was on all fours going for Abernethy and grabbing at her. Abernethy had Hunter in a headlock but Hunter kept kicking out saying, ‘You’re fucked, this is your fucking job, I’ll make sure you’ll lose your job’. Hawkins said she tried to hold Hunter’s arm during the struggle but felt useless. When the police arrived, Abernethy and Hunter were still on the ground and Hunter went from being the aggressor to wanting to look like the victim.
In his statement, Abernethy said that when he walked into the Property he saw Hunter sitting on the staircase. Hunter got up and came towards him in an aggressive and threatening manner. He placed Hunter in a headlock and took him to the ground. Hunter at some stage swung a punch at his head. He described the struggle on the ground while he held Hunter around the neck. He said William sat on Hunter’s back. He said Hunter said things like ‘I’m going to have your job’.
Both Hawkins and Abernethy were charged with intentionally causing injury and recklessly causing injury. They were tried together. A first trial (before Judge Chettle) was inconclusive. This application for leave to appeal arises from the conduct of a second trial (before Judge Wischusen) that resulted in both applicants being convicted of intentionally causing injury to Hunter.
In light of the way in which the trial was conducted, in his sentencing remarks Judge Wischusen found that, by its verdict, the jury was satisfied that:
(a) Hawkins intended to cause injury to Hunter by ‘attacking his lower limbs when he was already on the ground and being restrained’; and
(b) Abernethy intended to cause injury to Hunter by ‘a blow to the head; so unexpected that [Hunter] was still talking on the phone when [Abernethy] delivered it, and by further blows to his head when he was relatively helpless and in a headlock.’[6]
[6]Ibid [55]-[56].
The judge also found that, by its verdict, the jury must have been satisfied that the statements made by Hawkins and Abernethy were untrue.[7]
[7]Ibid [22].
At trial, neither Hawkins nor Abernethy disputed that they were involved in a physical altercation with Hunter at the Property and that Hunter suffered a number of injuries. Hawkins argued that the physical contact she made with Hunter occurred only as she sought to assist Abernethy in restraining Hunter by attempting to hold Hunter’s arms and that, at all times, Hunter was the aggressor. This defence was consistent with, and reliant upon, the representations in her statement.
It was Abernethy’s case at trial that he had simply sought to restrain Hunter, who approached him in an aggressive manner. Any injuries sustained by Hunter must have occurred while Hunter was thrashing around on the ground trying to break free of Abernethy’s grip and Hunter’s injuries were therefore the result of accident or caused in the course of Abernethy acting in self-defence. This defence was also consistent with and reliant upon the representations in Abernethy’s statement.
The statements were tendered by the prosecution at trial and the jury was told that they could ‘only use the statements for and against the maker of that particular statement’. The prosecution said that it tendered the statements at trial ‘in the same way that a record of interview is tendered’, that is, as a matter of fairness, in the manner contemplated by such cases as R v Rymer[8] and R v Rudd[9] to enable defence counsel to make use of the denials contained in the statements.
[8][2005] NSWCCA 310, [59].
[9][2009] VSCA 213, [55].
However, each applicant sought to rely on the statement of the other under s 83 of the Evidence Act 2008. They submitted that the statements contained both inculpatory and self-serving statements and, as such, should be regarded as ‘mixed statements’ which were admissible in their entirety in the trial of the other. As to what was the inculpatory content of the statements, the applicants relied on two matters: first, each of the statements allowed that the applicants were present at the time the incident occurred; and, secondly, each statement allowed that there had been physical contact — a scuffle or a struggle — between each of the applicants and Hunter.
In light of the issues identified in the trial, the judge held that those parts of the statements which confirmed that the applicants were present at the scene and that there were physical interactions between them and Hunter were not in any sense inculpatory. The judge said:
If the statements had contended that they were, for example, not at the scene, or that they had never laid a hand upon Hunter, and those two facts … were patently false, then the false denials may well be inculpatory. But in my view, allowing in a statement matters that were not then, and were not in the trial, in controversy in any sense, is not adverse in the sense that the section that defines ‘admission’ contemplates. In my view, the statements are wholly self-serving, the content of them is in no sense contrary to the accused’s interests in the outcome of the proceeding, and so they are not admissions within the meaning of the [Evidence] Act.
In so concluding, the judge adopted the reasoning in the ruling of Judge Chettle in the earlier (inconclusive) trial:
An admission by definition is a statement adverse to his interest to the outcome of the proceedings. There are no admissions. What this amounts to is an out of court hearsay statement. It is sought to be used for a purpose effectively supporting another out of court hearsay statement. … What is the point of s 83(2)? I think having looked at it as briefly as I can it is designed to determine the issue that arose in the High Court decision of Bannon v The Queen …, where Bannon was prevented from relying on an out of court admission or confession by a third party. That is not this situation and accordingly I reject the submission made by [counsel] in relation to s 83(2) of the Evidence Act.
As a result, the judge did not allow the written statement of one applicant to be evidence in the trial of the other.
Ground of appeal
The single proposed ground of appeal in each application is that a substantial miscarriage of justice occurred by reason of the judge refusing to permit the applicant to rely upon the statement made to police on the day of the alleged offence by the applicant’s co-accused, which the prosecution tendered on the trial of the co-accused:
(a) despite the applicant arguing that s 83(2) of the Evidence Act was engaged and permitted the tender of the statement; or
(b) by reason of the failure of the parties and the judge to consider the admissibility of the statement under s 65(8) of the Evidence Act.
Principal basis relied on for cross-admissibility: s 83(2)
Section 83 of the Evidence Act must be construed by reference to s 81, which governs the reception of an out of court statement in the form of an admission.
Section 81 provides as follows:
(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.
The word ‘admission’ and the related term ‘previous representation’ are defined in the Dictionary to the Evidence Act as follows:
‘Admission’ means a previous representation that is —
(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b) adverse to the person’s interests in the outcome of the proceeding;
‘Previous representation’ means a representation made otherwise than in the course of giving evidence in the proceeding in which the evidence of the representation is sought to be adduced.[10]
[10]Evidence Act 2008, Dictionary pt 1 (definition of ‘Admission’); Evidence Act 2008, Dictionary pt 1 (definition of ‘Previous Representation’).
Section 81 applies where the maker of the admission is or becomes a party to a proceeding. It permits, in effect, a party’s out of court representations against interest to be used for or against them at trial.
Section 83 of the Evidence Act provides for admissions to be used ‘in respect of the case of a third party’. It provides:
(1)Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.
(2)The evidence may be used in respect of the case of a third party if that party consents.
(3) Consent cannot be given in respect of part only of the evidence.
(4)In this section, third party means a party to the proceeding concerned, other than the party who—
(a)made the admission; or
(b) adduced the evidence.
Section 83 evinces the intention that while, pursuant to s 81, an admission may be admissible in a proceeding for or against the party that made it, it is not admissible against a party who neither made the admission nor adduced the evidence of the admission in the proceeding, unless that party (the ‘third party’) consents.
Submissions
The applicants submit that the effect of s 83 in a joint trial of two accused, where a mixed statement of one accused is tendered in the case of that accused, is as follows:
(c) the statement is admissible both for and against its maker, by reason of s 81;
(d) the hearsay and opinion rules apply to exclude the statement from consideration in the case of a co-accused by reason of s 83(1);
(e) however, if the co-accused consents, the entire statement admitted pursuant to s 81 may be used in the third party’s case, by reason of s 83(2).
The applicants submit that the judge’s ruling betrays an erroneous approach to the determination of whether the statements contain admissions. The question is an objective one, to be determined by an analysis of the capacity of the statement to bear upon the facts alleged by the prosecution. It is not to be determined by a consideration of whether those facts are in dispute. The very fact that an admission has been made will often foreclose any real contest on particular issues at trial and it cannot be said that a statement, having foreclosed particular issues that would otherwise be open, was not adverse to the interests of the accused. The applicants submit that the ruling disregarded that the statements contained representations that were unquestionably adverse to the interests of the applicants in the outcome of the proceeding, because the representations corroborated certain aspects of the prosecution case. The statements provided proof of aspects of the transaction that the prosecution would otherwise have had to prove, and corroborated particular aspects of Hunter’s account. The statements therefore contained matters that were adverse to the interests of the applicant who made the statement.
The applicants further submit that if one of them, as the third party for the purposes of s 83, consented to the use of evidence of an admission in the statement of the other, the entire statement was admissible under s 83(3). According to the applicants, the expression ‘the evidence’ in s 83(3) is the entirety of the evidence that would be admissible under s 81. Section 81(1) permits ‘evidence of an admission’ to be adduced, notwithstanding the operation of the hearsay and opinion rules. Section 81(2) provides for evidence that is essential to a proper understanding of the meaning of the admission to be adduced. Section 81 thereby recognises that the ‘admission’ may be meaningless or misleading without the related evidence that gives meaning or context to the admission. Likewise, when s 83 refers to ‘evidence of an admission’, that evidence must encompass the entirety of the evidence, not merely the ‘admission’ itself. This is made plain by s 83(3), which precludes an accused giving consent to the use of only part of ‘the evidence’. In the case of a mixed statement, the entire content of the mixed statement becomes evidence ‘both for and against’ the accused who has consented to its use under s 83(2).
The applicants submit that because each of them consented to the use of the statement made by the other, each statement was able to be used in the case of the other. The prosecution could legitimately point to the admissions as to presence, to the corroboration of what Hunter said as to his position when Abernethy entered the hallway, and to the admissions to having been involved in the physical acts to subdue Hunter. For their part, each applicant could legitimately point to the corroboration of their account and the dispute about Hunter’s account of the scuffle.
The respondent submits that when contemplating whether a representation is adverse to the person’s interest in the outcome of the proceeding, it is instructive to have regard to the matters in issue in that proceeding. Hawkins’ and Abernethy’s respective ‘previous representations’ as to their presence at the Property and their participation in the scuffle were not adverse to their interests in the outcome of the proceeding; rather, they were in part background matters and in other ways crucial to the defence advanced by each at his or her trial. In the case of Hawkins, the representations in the statement identified Hunter as the aggressor and made no mention of Hawkins having done anything that might have resulted in injury to Hunter’s legs, intentionally or otherwise. The representations, by implication, provided an innocent explanation for Hunter’s injuries, namely, that they must have resulted by accident through his own actions. The same can be said about the representations in Abernethy’s statement. They identified Hunter as the aggressor and made no mention of Abernethy having done anything that might have resulted in injury to Hunter’s head, intentionally or otherwise. Again, by implication, Abernethy’s representations in his statement provided an innocent explanation for Hunter’s injuries, namely, that they must have resulted by accident through Hunter’s own actions.
According to the respondent, the judge was correct to conclude that the contents of the statements were wholly self-serving and in no sense contrary to the accuseds’ interests in the outcome of the proceeding. Contrary to the assertion that the statements were ‘mixed statements’, every aspect of each of them sought to provide an exculpatory version of events.
The respondent further submits that even if the statements did contain admissions, the application to admit the statements was not made with the objective of gaining a forensic advantage from relying on the admissions. The forensic advantage sought by the applicants was the use of the exculpatory representations made by the co-accused, which were said to corroborate the exculpatory account given by each applicant in their own statement. The respondent submits that ss 83(2) and (3) ought not to be construed to create an exception to allow the entire out of court, self-serving portions of the statement of a co-accused to be used, even if only a single admission is contained within it.
Were they admissions?
As discussed, the submission for the applicants was that, in order to prove that Abernethy had committed the alleged offence, the prosecution would first have to establish that he was present on the occasion when Hunter allegedly suffered injury and that he had had physical contact with Hunter. It followed, according to the argument, that by acknowledging both of those matters in his statement, Abernethy had made representations ‘adverse to [his] interest in the outcome of the proceeding.’ The same argument was made in relation to Hawkins.
Before the trial judge, though not in this Court, reliance was placed on a decision of Kourakis J in the Supreme Court of South Australia in Barry v Police.[11] That case concerned a record of interview, about which his Honour said the following:
During that interview the appellant made a number of self-serving exculpatory statements, denying certain allegations put to him and claiming that he had acted in self-defence. However, he also made admissions against his interest; he accepted that he was at the scene of the incident and that he and [the complainant] had a ‘struggle’ or ‘scuffle’, although those admissions were made in the context of his claims that he was acting in self-defence and that [the complainant] had attacked him.[12]
[11](2009) 197 A Crim R 445; [2009] SASC 295.
[12]Ibid 455 [40] (emphasis added).
In the present case, it was said, Abernethy and Hawkins had made similar ‘admissions against interest’.
What matters for present purposes is the statutory language. As already noted, a representation will only be an admission if it is made by a person who is or becomes a party to a proceeding and is ‘adverse to the person’s interest in the outcome of the proceeding’. In our view, the requirement that an admission be made by a party and the highlighted words direct attention to the proceeding in which the question of admissibility arises and, more particularly, to the matters in issue in the proceeding at the point when that question arises. Counsel for the applicants in this Court properly conceded that this must be so.
There was no issue in Abernethy’s trial either about his presence at the scene or his physical contact with Hunter. To the contrary, as senior counsel for the respondent pointed out, the defence response filed on Abernethy’s behalf expressly relied on the contents of his statement. Moreover, the defence response admitted the contents of transcripts of all of the triple 0 calls, which confirmed his involvement in the altercation. Likewise, there was no issue about Hawkins’ presence at the Property or that she made physical contact with Hunter. The defence response filed on Hawkins’ behalf expressly relied on the content of her statement and admitted the transcript of the triple 0 calls.
On the first day of the trial, the judge confirmed with counsel that the only issues in the trial were whether the applicants had caused Hunter’s injuries and, if so, whether they had done so intentionally. The same occurred at the conclusion of the evidence, when the judge requested counsel pursuant to s 11 of the Jury Directions Act 2015 to specify which matters were in issue.
Accordingly, nothing said by Abernethy in his statement about his presence at the scene or his physical contact with Hunter was ‘adverse to his interests in the outcome of the proceeding’. Those ‘representations’ were either irrelevant to the outcome, because those matters were not in issue in the proceeding, or they were favourable to Abernethy, because he relied on them in his own defence. The same applies to the representations in Hawkins’ statement.
It follows, in our view, that the argument based on s 83(1) of the Evidence Act failed at the threshold. Abernethy’s statement contained no ‘evidence of an admission’ on which Hawkins could rely and Hawkins’ statement contained no ‘evidence of an admission’ on which Abernethy could rely.
Given that conclusion, it is strictly speaking unnecessary to address the second question, which concerns the exculpatory content of Abernethy’s statement. Since the matter was fully argued, however, it is appropriate that we deal with it.
What evidence is admissible under s 83?
The submission for the applicants was that an accused in the position of either of the applicants should be able to rely not only on evidence of their co-accused’s admissions but also on ‘contextual’ evidence of the s 81(2) kind which is necessary ‘in order to understand the admission’. As noted earlier, the submission for the applicants was that, once Abernethy’s ‘admissions’ could be used by Hawkins under s 83(2), the whole of Abernethy’s statement had to go into evidence in her trial and that once Hawkins’ ‘admissions’ could be used under s 83(2) by Abernethy, the rest of her statement was required to go into evidence in his trial.
The foundation of the argument was that Parliament must be taken to have intended that the operation of s 83 would mirror that of s 81. That is, just as evidence of an admission admitted under s 81(1) would be accompanied by evidence admitted under s 81(2) as ‘reasonably necessary … in order to understand the admission’, so too should evidence of an admission admitted under s 83(2) be accompanied by evidence necessary for the admission to be understood. It would be ‘absurd’ if the position were otherwise.
We start, therefore, with s 81(1), which makes admissible in the trial of an accused person evidence of an admission made by that person. This is a statutory replication of the common law exception to the hearsay rule. Section 81(2) deals with different, but related, subject matter. Whereas sub-s (1) is concerned with ‘evidence of an admission’, sub-s (2) is concerned with ‘evidence of a previous representation … made in relation to an admission’. Evidence of this kind is admissible, as an exception to the hearsay rule, provided that:
·the representation was made ‘at the time the admission was made, or shortly before or after that time’; and
·it is reasonably necessary to refer to the representation ‘in order to understand the admission’.
Section 81, in allowing to be put into evidence against a party to a proceeding a previous representation made by that person adverse to his or her interests in the outcome of the proceeding, generally operates to the disadvantage of the person who made the admission and to the advantage of his or her adversary (or adversaries) in the proceeding. In a criminal trial, this will most often be the prosecution, which bears the burden of proving all of the elements of the crime. However, the admission under s 81(2) of evidence of previous representations to which it is reasonably necessary to refer in order to understand the admission is equivocal: it may operate to the advantage of the party who made the admission or to his or her disadvantage. It may enable a representation that is on its face ambiguous to be properly understood as an admission, or it may permit statements that, in contextualising the admission, qualify it so as to remove some or all of its sting. An example of the former would be a representation making it plain that the importation of ‘chocolate’ is to be understood as the importation of a prohibited drug. An example of the latter would be a representation qualifying an admission that the maker stabbed and killed the victim by clarifying that the stabbing occurred in the context of an assault on the accused by the victim.
Section 83, on the other hand, is a beneficial provision, being protective of the position of ‘third parties’ and enabling them to use the admission of another party (notwithstanding its hearsay nature) to achieve a forensic advantage.
It is necessary to say something about the parties that benefit from or are subject to the forensic advantages and disadvantages in s 81 and 83. An admission is defined to mean a previous adverse representation made by a party to a proceeding. In a criminal trial, evidence of a confession by a person other than the accused is not caught by s 81. It would follow that where two co-offenders are tried separately, s 81 would not allow an admission by an accused in the one trial to be adduced in relation to another accused in a different trial.
Section 83 deals with evidence of an admission ‘in respect of the case of a third party’. The admission in question is an admission by another party. By s 83(4) the ‘third party’ means a party ‘to the proceeding concerned’ other than the party who made the admission or adduced the evidence. It is tolerably clear that s 83 deals with the situation where the party who made the admission and the third party are both parties to the same proceeding. This would extend to joint trials of co-accused.
There are two distinct aspects of s 83. First, it provides that the hearsay rule[13] is not excluded by s 81 ‘in respect of the case of a third party’. In so doing, s 83(1) ensures that s 81, by excluding the hearsay rule in relation to an admission for or against its maker, does not also by a side wind make the admission admissible against a third party. Thus, the admission is prima facie inadmissible against the third party as hearsay. However, and this is the second aspect of s 83, the third party may consent to the ‘use’ in its case of the admission where the third party perceives a forensic advantage in such use.[14]
[13]And the opinion rule. Having regard to what is in issue here, we shall only make reference to the hearsay rule.
[14]Evidence Act 2008 s 83(2).
Hence, s 83 limits the use that can be made of an admission by preventing its use in the case of the third party without that party’s consent. Conversely, s 83 seeks to overcome the potential for unfairness of preventing party A from relying on a relevant admission made by party B because of the hearsay rule.[15] That unfairness was recognised and explained by the Australian Law Reform Commission in its Interim Report on Evidence[16] which preceded the enactment of s 83. The third party retains control over the use in evidence for or against it of the admission made by another party through the requirement of consent in s 83(2).
[15]Such unfairness was discussed by Deane J in Bannon v The Queen (1995) 185 CLR 1, 13-15.
[16]ALRC Report 425; See also Bannon v The Queen (1995) 185 CLR 1, 13–15.
Section 83 does not ‘mirror’ s 81. It has a different purpose, employs a different structure and uses different language. Section 81(1) provides simply that the hearsay rule does not apply to evidence of an admission. Section 83(1) does not state that the hearsay rule does not apply to evidence of an admission (in the case of a third party). To the contrary, s 83(1) provides that s 81 does not prevent the application of the hearsay rule to ‘evidence of an admission’. However, s 83(2) allows ‘the evidence’ to be ‘used’ in the case of the third party where the third party consents to its use, subject to the condition in s 83(3) that the third party must consent to the use of all (not ‘part only’) of the evidence. Structured in this way, s 83 is responsive to s 81, but does not mirror it. Section 83 governs the use of the evidence of an admission against or by a third party. It deals with the consequences (or options) for third parties where there is in a proceeding evidence of an admission that was neither made by nor adduced by the third party.
Importantly, s 83(4) describes the context or circumstance for the use of the evidence of the admission by defining ‘third party’ as a party to the proceeding (in which the evidence of the admission is admissible by virtue of s 81) who is neither the party who made the admission nor the party who adduced the evidence of the admission. This assumes the existence of an admission and that evidence of the admission has been adduced in the proceeding under s 81.
Close attention to the text of ss 81 and 83 therefore reveals these provisions, read together, to anticipate that the evidence in s 83 is evidence that has been admitted (or can be admitted) into evidence in the proceeding under s 81. Section 83 is predicated on the evidence of the admission having been admitted (or being admissible) in the joint proceeding, and s 83(2) enables that evidence to be ‘used’ in respect of the case of the third party at the option of the third party.
We do not understand ‘part only of the evidence’ in s 83(3) to refer to part only of the admission. Putting to one side that it is difficult to conceive of ‘part only’ of an admission, there is no reason to conclude that the whole of the admission should not be available for use by the third party at his or her option. These words suggest that ‘the evidence’ in s 83(3) extends beyond the admission per se to encompass s 81(2) evidence that has been (or can be) adduced in the proceeding in addition to the admission itself. Moreover, to exclude such evidence and allow the third party only to use the admission (narrowly defined) could produce nonsensical or unfair results. In the examples we have given it would mean that an admission by a co-accused the he imported the ‘chocolate’ could not be used in tandem with other representations shedding light on what he meant by that term; however, a representation by a co-accused that he stabbed and killed the victim could be used in isolation from representations of facts and circumstances exonerating the co-accused (and possibly implicating the third party). The jury would have to be told that they were not entitled to use evidence that was reasonably necessary to understand the admission, notwithstanding that such evidence had been admitted under s 81(2).
Accordingly, we consider that the preponderance of the textual signposts in the statute point to the ‘evidence’ referred to in s 83(2) including evidence of previous representations to which it is reasonably necessary to refer in order to understand the admission, as provided for by s 81(2).
We appreciate that this construction leads to the words ‘the evidence of an admission’ in s 83(1) bearing a different meaning from the same words in s 81(1). Section 81 distinguishes between previous representations that are admissions and previous representations that are not themselves admissions but which give meaning to admissions. Section 83 contains no such distinction – it only refers to ‘evidence of an admission’ and thereafter to ‘the evidence’. While it is true that on ordinary principles of statutory interpretation, words in the same statute are to be taken to bear the same meaning, the language and structure of s 83 require those words to carry a broader meaning in s 83(1) than they do in s 81(1). In addition to the textual signposts to which we have already referred, if the words in s 83(1) carried only the limited meaning given to them in s 81(1), s 83(1) would not serve to carve out from the exception to the hearsay rule in s 81 the evidence referred to in s 81(2), which would arguably remain admissible against the third party.
We have reached our conclusion based on a textual analysis of the relevant provisions, acknowledging the apparent disparity in the meaning of the words ‘the evidence of an admission’ in ss 81(1) and 83(1). However, it is also supported by a purposive analysis.
The ALRC Report, when discussing when evidence of a party’s admission may be used by, not against, a co-party, stated that it was proposed to permit a co-party to use a party’s admission which is in evidence, subject to the following condition:
This right, however, should be subject to the limitation that statements connected to the admissions will be admissible in relation to the co-party’s case — even though unfavourable to the co-party.[17]
[17]ALRC Report, 425.
Section 83(3) refers to the consent that may be given under s 83(2), which in turn refers to ‘the evidence of an admission’ in s 83(1) to which, implicitly, s 81 applies. Under s 81, evidence of admissions and other representations to which it is reasonably necessary to refer to understand the admissions may be in evidence in a proceeding. Without the consent of the co-party, that evidence cannot be used for or against the co-party, but with the co-party’s consent, it can be. In this context, s 83(3) provides, however, that consent cannot be given ‘in respect of only part of the evidence’. This is consistent with what the ALRC said about the admissibility of ‘statements connected to admissions’ in the paragraph quoted immediately above.
In our view, therefore, ‘the evidence’ referred to in ss 83(2) and (3) is the evidence that has been adduced in the proceeding of admissions and any other representations to which it is reasonably necessary to refer to in order to understand the admissions.
We caution, however, that the only evidence made admissible by s 81(2) is evidence of representations to which it is ‘reasonably necessary’ to refer in order to understand the admission. That will not usually include a vast range of exculpatory statements. In this case, it includes precisely nothing. If the ‘admissions’ that the applicants were present at the property and that they were involved in a scuffle are admissible, there is no need for any further part of the statements to be admitted in order to explain those ‘admissions’. Moreover, as Priest JA said in Power v The Queen,[18] one of the purposes of s 83(1) is to enable party A to make use of party B’s admission. In the present case, as counsel for the applicants properly conceded, neither applicant could ‘make use’ of the other’s ‘admissions’. Given the limited scope of the matters in issue, they were of no assistance at all. The only reason for seeking to invoke s 83 was in order to enable each applicant to rely on the exculpatory content of the other accused’s statement. None of that material was necessary in order to understand the admissions sought to be adduced.
[18](2014) 43 VR 261, 303 [182]; [2014] VSCA 146.
Even if we were persuaded that the jury should have been permitted to use the statements in full of each applicant in respect of the case of the other, the failure to permit that course, in this case, did not give rise to a substantial miscarriage of justice. Given that the jury rejected the account given by each applicant in their statement, it is untenable to suggest that a different outcome could have ensued had the jury been permitted to also take into account the statement of the other applicant. Furthermore, it was well open to the jury to conclude that the evidence of the injuries suffered by Hunter was consistent with his account of events and inconsistent with the accounts in the applicants’ statements.
Alternative basis for cross-admissibility: s 65(8)
Section 65 of the Evidence Act contains certain exceptions to the hearsay rule where the maker of a representation is ‘unavailable’.[19]
[19]Evidence Act 2008 s 65(1).
In circumstances where the maker of the representation is ‘unavailable’, s 65(8) provides:
The hearsay rule does not apply to —
(a)evidence of a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document tendered as evidence by an accused so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Clause 4 of part 2 of the Dictionary relevantly provides that a person is taken not to be available to give evidence about a fact if —
(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.
According to the applicants, a co-accused is always ‘unavailable’ for the purposes of s 65(1) because a co-accused is not compellable to give evidence by reason of s 17 of the Evidence Act, so that the qualifying criterion for unavailability that ‘all reasonable steps have been taken … to compel the person to give evidence, but without success’[20] will always be satisfied. As a co-accused is immune from compulsion, a party will demonstrate that ‘all reasonable steps to compel the person’ have been taken merely by demonstrating that the person who made the representation was the co-accused.
[20]Evidence Act 2008 Dictionary pt 2 cl 4(1)(g).
We reject this submission. Section 17 of the Evidence Act, which deals with competence and compellability of an accused in criminal proceedings, provides:
(1) This section applies only in a criminal proceeding.
(2)An accused is not competent to give evidence as a witness for the prosecution.
(3)An associated accused is not compellable to give evidence for or against an accused in a criminal proceeding, unless the associated accused is being tried separately from the accused.
(4)If a witness is an associated accused who is being tried jointly with the accused in the proceeding, the court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3).
Section 17 makes clear that an accused person is not competent to give evidence as a witness for the prosecution in their own trial.[21] The definition of ‘unavailability of persons’ in the Dictionary includes ‘persons who are not competent’[22] which, by operation of s 17, captures an accused person upon their own trial. However, the definition does not capture a co-accused.
[21]Evidence Act 2008 s 17(2).
[22]Evidence Act 2008 Dictionary pt 2 cl 4(1)(b).
A co-accused falls within the definition of an ‘associated accused’. Section 17(3) provides that an associated accused is not compellable to give evidence for or against an accused in a criminal proceeding, unless the associated accused is being tried separately from the accused. Implicitly, if the associated accused is tried separately, the associated accused is compellable to give evidence, for and against, the accused.
Further, s 17(4) provides that if a witness is an associated accused who is being tried jointly with the accused in the proceeding, the court must satisfy itself that the witness is aware of the effect of subsection (3), namely, that as an associated accused, they are not compellable. An associated accused in a joint trial can therefore consent to giving evidence for or against the accused, provided the court is satisfied that the co-accused is aware of the effect of subsection (3). It follows that a co-accused being tried at the same time as the accused is not always ‘unavailable’ as a witness for the accused for the purposes of s 65 of the Act.
In order to meet the test for ‘unavailability’ relied upon, the relevant applicant, in the circumstances of this case, would need to establish that they took all reasonable steps to compel the co-accused to give evidence, but without success. ‘Reasonable steps’ might have included a request that the co-accused consent to giving evidence in the course of the joint trial. Provided the pre-conditions of s 17(4) were met, the co-accused would then have been available to give evidence for or against the applicant. Alternatively, or if the co-accused refused consent, the applicant could have applied to sever the trials and to compel the co-accused to give evidence pursuant to s 17(3) in the separate trial.
In this case, no steps whatsoever were taken.
We therefore reject the proposition that the statements were admissible in the trial of the co-accused pursuant to s 65(8) of the Evidence Act.
In any event, we observe that the argument that the statements were cross-admissible under s 65(8) was only very gingerly advanced in the first trial and effectively abandoned by counsel in the course of argument. The judge in the first trial was not called upon to rule on the point. The argument was not raised at all in the second trial, presumably as a result of a forensic decision not to do so. The argument is, in effect, advanced for the first time in this application.
Aside from the fact that this Court will be slow to entertain appeals on points that were not argued, or were eschewed, at trial,[23] there is the additional complication that the use of s 65(8) to admit hearsay evidence depends, pursuant to s 67(1), on the accused giving reasonable notice of his or her intention to adduce the evidence. No notice in the prescribed form was given in advance of either trial. The applicants submit that ‘informal’ notice was given by the fact that the applicants sought to rely upon the statements of their co-accused in the first trial and that such informal notice having been given, there was an overwhelming case for the waiver of notice in the prescribed form, pursuant to s 67(4).
[23]See eg, R v Chaouk [2013] VSCA 99, [9], quoting Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481, 483; [1985] HCA 28.
It is difficult to see how there might have been ‘an overwhelming case for the waiver of notice’ in the trial in circumstances where a deliberate decision appears to have been made not to argue that s 65(8) of the Evidence Act applied to render the statements cross-admissible. We reject that proposition.
There has been no substantial miscarriage of justice by reason of the statements not being admitted into evidence under s 65(8) of the Evidence Act.
Disposition
No substantial miscarriage of justice occurred by reason of the judge refusing to allow each applicant to put in evidence the statement of the other.
Leave to appeal is refused.
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