Arnautovic v The King (No 2)
[2024] VSC 270
•24 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0335
| DRAGAN ARNAUTOVIC | Applicant |
| v | |
| THE KING | Respondent |
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JUDGE: | Kaye JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 May 2024 |
DATE OF RULING: | 24 May 2024 |
CASE MAY BE CITED AS: | Arnautovic v The King (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 270 |
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CRIMINAL LAW – Evidence – Hearsay – Applicant seeks to rely on previous statements – Whether witness unavailable – Whether all reasonable steps taken to secure attendance – Whether highly probable that statements reliable – Evidence Act 2008 (Vic) ss 62, 65.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connolly | Slades & Parsons Criminal Law |
| For the Respondent | Ms D Piekusis KC and Ms A Martin | Solicitor for Public Prosecutions |
HIS HONOUR:
The applicant has sought leave, under s 326A of the Criminal Procedure Act 2009, to appeal against his conviction in September 1999 on one charge of trafficking in a commercial quantity of heroin. Pursuant to s 319A of the Criminal Procedure Act, the Court of Appeal has referred to the Trial Division of the Court, constituted by a judge, eight issues, which arise in the application for leave to appeal.[1]
[1]The Queen v Arnautovic [2022] VSCA 280.
In a previous ruling, concerning the application of public interest immunity to evidence sought to be adduced on behalf of the applicant, I have outlined the relevant circumstances of the case.[2] It is not necessary to outline those circumstances further for the purpose of the present application.
[2]Arnautovic v The King [2024] VSC 235.
Pursuant to s 67 of the Evidence Act 2008, the applicant has notified the respondent that it intends to adduce, by way of hearsay evidence, extracts from the testimony of Nicola Gobbo (‘Ms Gobbo’), which she gave to the Royal Commission into the Management of Police Informers (‘the RCMPI’). The applicant contends that that evidence is admissible pursuant to s 65 of the Act, on the basis that Ms Gobbo is not available to give evidence in the matter. The application is supported by an affidavit of the applicant’s legal practitioner, Yvonne Kushnir.
By the notice pursuant to s 67 of the Evidence Act, the applicant has specified eleven statements, made by Ms Gobbo before the Royal Commission, that he seeks to adduce in the referral hearing. The first three statements were made by Ms Gobbo during a recorded unsworn conversation between her and senior counsel assisting the Commission, Mr Chris Winneke QC. The other eight statements were made in the course of cross-examination by Mr Winneke of Ms Gobbo. The eleven statements are as follows:
1.“Yes, that’s why, that’s why I said it.”
2.“I would have been used to acquire all kinds of information without me necessarily appreciating that that’s what was occurring”
3.“Yes, and what I’m trying to say, although not very well, is that I wouldn’t have, you know, I wouldn’t have appreciated the nuances about what I was being asked. I might have regarded it as just, either just as a bit of chitchat, but knowing what I now know now, I may well have been, unbeknownst to me, putting the last piece of a jigsaw puzzle together for an investigator or showing them things that, like, they were fishing for but I didn’t realise at the time that they were.”
4.“And as pathetic as that sounds for me to admit it to you or to myself, I think that’s, I think that’s the best way to put it in the context of Wayne Strawhorn being - I mean I know it might sound a strange way to describe him, but he was this all powerful, feared Drug Squad Detective that even the hardened drug dealers in that era… but they believed that he had a huge amount of power and a huge amount of say as in if, you know, if you got him to come to court for you, well, you know, you were home free, but that he was pretty ruthless”
5.“Well I first had dealings with Wayne Strawhorn when he threatened me and subsequently over time there were people for whom I acted who he had particular dealings with of a certain nature.”
6.“You cut out for the first few words, but, yes, I think - yes, I agree with that.”
7.“Yes, because Mr Strawhorn was having regular dealings with that particular client and then that particular client would come back to me and seek some reassurance or confirmation of matters and then I would go back to Mr Strawhorn on his behalf.”
8.“Yes, he did that.”
9.“But in a kind of - in a fairly manipulative, predatory fashion, but in fairness to him that was his job.”
10.“Yes, I had a kind of dual competing feelings about him in that I, part of me was petrified of the man because of the power that I at least perceived that he had.”
11.“And the control that he had over the Drug Squad, and part of it was, or at least developed over time, is a respect for him because what he promised those accused people he ended up delivering, as in when he promised them the deal of a lifetime, he delivered.”
Evidence Act s 65
Section 65(1) of the Evidence Act provides that s 65 applies in a criminal proceeding if a person, who made a previous representation, is not available to give evidence ‘about an asserted fact’.
Section 65(2) provides for the circumstances in which, in a criminal proceeding, such evidence might be given. It provides:
(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.
The applicant contends that the eleven statements, by Gobbo to the RCMPI, are admissible pursuant to s 65(2)(c) and (d).
The respondent opposes the admissibility of the statements, made by Ms Gobbo to the RCMPI, on three grounds. First, it was submitted, the applicant has failed to establish that Ms Gobbo is not available to give evidence in the hearing. Secondly, a number of the statements, made by Ms Gobbo to the RCMPI, do not constitute a previous representation by her about an asserted fact. Thirdly, the applicant has failed to establish, pursuant to s 65(2)(c) of the Evidence Act, that the statements were made by Ms Gobbo in circumstances that make it highly probable that the representations contained in them are reliable, or, pursuant to s 65(2)(b), that the statements were made against the interests of Ms Gobbo.
Whether Ms Gobbo available
The first question is whether the applicant has established that Ms Gobbo is not available to give evidence about the matters contained in the eleven statements that she made to the RCMPI and which are sought to be adduced in the present proceeding.
Clause 4 of Part 2 of the Dictionary to the Evidence Act relevantly provides that, for the purposes of the Act, a person is taken not to be available to give evidence about a fact if —
...
(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.
In her affidavit, Ms Kushnir has set out the steps, taken by the applicant’s solicitors, to seek to have Ms Gobbo attend the hearing of the referred questions. The relevant aspects of the steps, taken by the applicant’s solicitors, as outlined in the affidavit, are as follows:
·On 8 May 2023, Ms Kushnir emailed the respondent, requesting service details for Ms Gobbo and another witness, Mr Strawhorn.
·By email dated 11 May 2023, the respondent’s solicitors replied that they were making inquiries and would be in touch.
·On 23 May 2023, Ms Kushnir received an email directly from Messrs Corrs Chambers Westgarth, solicitors, advising that Ms Gobbo is represented by Mr G. De Biase of Angela Sdrinis Legal in another matter, and provided to Ms Kushnir the contact details of Mr De Biase.
·On 19 July 2023, the Court of Appeal made an order listing the matter for a reference determination hearing to be held on 9 October.
·On 28 July 2023, the applicant filed witness subpoenas, including one to Ms Gobbo, relying on the service details provided by Corrs Chambers Westgarth.
·On 2 August 2023, the Court vacated the reference determination hearing that was listed on 9 October 2023.
·On 10 October and 10 November 2023, the Judicial Registrar heard and determined an application under s 317 of the Criminal Procedure Act for the production of documents.
·On 1 March 2024, the Court of Appeal Registry advised the parties, via email, that the reference determination would be listed to commence on 17 June.
·On 8 March 2024, the applicant re-filed the witness subpoenas, again relying on the same service details for Ms Gobbo.
·On 12 March 2024, the applicant’s legal practitioners instructed Probe Field Services, by email, to serve the subpoena on Ms Gobbo, and also subpoenas on two other witnesses.
·On 6 April 2024, Probe Field Services emailed the applicant’s solicitors, advising that service had been effected in relation to Ms Gobbo on 4 April, by leaving the subpoena with the legal representative, Mr Gino De Biase.
·On 8 April 2024, the applicant’s solicitors received a letter, via post, from Mr De Biase, advising that his firm had refused to accept service of the material at the time at which Probe Field Services attended upon it.
·As a result, on the same date, the applicant’s legal practitioners emailed Probe Field Services, requesting an affidavit of service.
·On 11 April 2024, Probe Field Services emailed an affidavit to the applicant’s legal practitioners, deposing that the process server had served a sealed copy of the subpoena by leaving it with Mr De Biase at their nominated office of Angela Sdrinis Legal.
·On 26 April 2024, Ms Kushnir emailed the respondent to advise that the applicant had not been successful in establishing a line of communication with Ms Gobbo, and noted that there were issues with the service of the subpoena on her.
·On 29 April 2024, Ms Kushnir emailed Corrs Chambers Westgarth to inquire whether they had any other contact details for Ms Gobbo. On the same day, those solicitors confirmed that they did not have any further contact details relating to Ms Gobbo.
·On 3 May 2024, Ms Kushnir emailed the respondent to inquire whether it had any other contact details for Ms Gobbo.
·On 3 May 2024, the respondent replied to Ms Kushnir’s email confirming that the respondent did not have any other contact details of Ms Gobbo.
Submissions
Counsel for the respondent submitted that the applicant had not established that all reasonable steps have been taken to locate Ms Gobbo and to secure her attendance at the hearing of the proceeding. In particular, it was submitted, before 23 May 2023, the applicant made no attempt to find Ms Gobbo, or to secure her attendance at Court. Further, between 23 May 2023 and 8 April 2024, the applicant made no attempt to confirm that Ms Gobbo’s solicitors, Angela Sdrinis Legal, would accept service on her behalf. During that period, the applicant’s solicitor made no inquiry as to the availability of Ms Gobbo to give evidence, and to identify how, and in what circumstances, a subpoena might be able to be served upon her. Counsel noted that the applicant would have been well aware, from the proceedings before the RCMPI, that there may have been some difficulties in securing the attendance of Ms Gobbo as a witness in the proceeding. In addition, it was submitted that there are several reasonable steps, which the applicant could now take to locate Ms Gobbo and secure her attendance, including making further telephone contact with Angela Sdrinis Legal, and contacting Victoria Police and the Victorian Government Solicitor’s Office.
In response, counsel for the applicant placed particular emphasis on the email, sent by Ms Kushnir to the respondent’s solicitors on 10 May 2023, asking whether the respondent took issue with the unavailability of Ms Gobbo to give evidence, and, if so, to provide her contact details to the applicant. Counsel noted that, on the following day, 11 May, the respondent replied that inquiries were being made, and that the respondent would be in touch when it was in a position to do so.
Counsel further noted that, in May 2023, a hearing date had not been fixed for the reference determination hearing. It was submitted that when that date was fixed, in March 2024, it was submitted that the applicant had taken all reasonable steps to locate Ms Gobbo and secure her attendance at the hearing.
Conclusion
The determination of the question, whether the applicant has taken all reasonable steps to secure the attendance of Ms Gobbo in the reference determination hearing, is not clear-cut. Certainly, as submitted on behalf of the respondent, there are a number of steps, which could have been taken by the applicant, over the last twelve months, and, in particular, since this matter was set down in March 2024 for hearing on 17 June next.
On the other hand, in a case such as this, it is appropriate to take a pragmatic approach to the question whether, in view of the matters raised by counsel for the respondent, all reasonable steps have been taken which would have been practicable to secure the attendance of Ms Gobbo.[3] As John Dixon J noted in Roo–Roofing Pty Ltd v The Commonwealth of Australia (Ruling No 2), the fact that further steps could have been taken does not necessarily mean that all reasonable steps have not so far been taken to secure the attendance of the witness.[4]
[3]Tsang Chi Ming & Ors v Uvanna Pty Ltd & Anor (1996) 140 ALR 273, 282 (Hill J).
[4][2018] VSC 219, [30].
In the circumstances of the present case, it is reasonable to infer that the applicant does not know, and, without appropriate assistance, could not know, of the whereabouts and availability of Ms Gobbo. It might also be inferred, from the email correspondence between Ms Kushnir and the respondent’s solicitors on 10 May and 11 May 2023, that the respondent is not in a position to assist the applicant in that respect.
Further, in response to the service of the subpoena in April 2024, Mr De Biase, of Angela Sdrinis Legal, informed Ms Kushnir that his firm was not aware of the current location of Ms Gobbo. In addition, the respondent, by its response to Ms Kushnir’s email dated 3 May 2024, has indicated that it is not aware of Ms Gobbo’s address for service or whether she is represented in the present proceeding, or in any other proceeding, by a firm of legal practitioners.
Taking those matters into account, it may therefore be concluded that, in a practical sense, all reasonable steps have been taken, by the applicant, to locate Ms Gobbo and to secure her attendance at the forthcoming reference hearing. It follows that, for the purposes of s 65 of the Evidence Act, Ms Gobbo is a person who is not available to give evidence at the reference determination hearing.
Whether previous statements are representations of fact
Sections 62(1) and (2) of the Evidence Act restrict evidence of previous representations, which may be admissible under the provisions of Part 3.2 of the Act, to firsthand hearsay, that is, to representations as to a fact of which the representor had personal firsthand knowledge.[5]
[5]Compare Vincent v The Queen (2002) 133 A Crim R 206, 210–11 [20].
The eleven statements, in the evidence of Ms Gobbo before the RCMPI, which the applicant seeks to admit, constituted responses made by her in answer to questions put to her by counsel assisting the Royal Commission. In order to understand, and give context to, the statements made by Gobbo, it is necessary to take into account the questions asked of her as the necessary context to her responses. When considered in that way, it is apparent that each of representations numbered 1, 2, 3 and 9 do not constitute statements by Gobbo of matters of which she had personal knowledge, that is, statements by her of a fact, which she saw, heard, or otherwise perceived.
The first statement, that is sought to be adduced, was made by Gobbo in response to a question by counsel as to whether ‘with the benefit of hindsight’, Ms Gobbo believed that, in effect, Mr Strawhorn had been ‘pumping’ her for information. Considered in that context, it is clear that the response by Ms Gobbo was no more than an ex post facto rationalisation by her of her dealings with Mr Strawhorn, and did not constitute any statement by her of any fact, which she had seen, heard, or otherwise perceived.
The second statement, sought to be adduced, was part of the response by Ms Gobbo to the same question put to her by counsel assisting. Again, that response did not constitute a statement by her of any fact, which she saw, heard, or otherwise perceived, but, was no more than a retrospective expression of opinion as to the nature of her dealings with Mr Strawhorn.
The third statement was given in response to a question by counsel assisting as to whether Ms Gobbo thought (at the time she was asked the question) that she might have been asked questions by Mr Strawhorn about persons who had been charged by members of the Drug Squad and for whom Ms Gobbo had acted between 1999 and 2001. The part of Ms Gobbo’s response, which constitutes statement number 3, again, does not contain any representation of fact, but, rather, comprises Ms Gobbo’s reflection (in 2019) on how, in hindsight, she would have regarded her communications with Mr Strawhorn.
The fourth statement, that is sought to be adduced, is also part of the same answer, given by Ms Gobbo, to the same question asked of her by counsel assisting. Part of that statement, quite plainly, does not constitute any representation of fact. However, her description of Mr Strawhorn, as he was then regarded by ‘hardened drug dealers’ in the area in question, is at least arguably a representation of fact by Ms Gobbo. There may be a question as to whether that statement by Ms Gobbo has any relevance to the determination of the questions referred by the Court of Appeal. However, it is sufficient to conclude that representation 4 does contain a representation of fact.
Statements 8 and 9 constituted an answer or answers, given by Ms Gobbo to a question by counsel assisting, that contained the proposition that Mr Strawhorn would often meet her at a particular cafe and, in effect, seek information from Ms Gobbo. Clearly, the answer to that question, which constitutes statement number 8, contained a representation of fact. However, statement number 9 was no more than a reflection, by Ms Gobbo, in hindsight, as to how she considered (in 2019) that Mr Strawhorn was able to elicit information from her.
For those reasons, statements numbered 1, 2, 3 and 9 do not contain any representations of fact by Ms Gobbo of which she had firsthand knowledge, and, accordingly, are not admissible under Part 3.2 of the Evidence Act.
Whether highly probable that statements reliable — Evidence Act s 65(2)(c)
The next question is whether, for the purposes of s 65(2)(c) of the Evidence Act, the representations by Ms Gobbo, sought to be adduced by the applicant, were made in circumstances that make it highly probable that they are reliable.
Submissions
In respect of that issue, counsel for the applicant noted that the representations by Ms Gobbo were each made in the context of a serious Royal Commission. The first four statements were made in preparation for the evidence that she was to give in the Royal Commission. At the time at which she made those statements, she knew that she would be required to give sworn evidence before the Royal Commission, which she ultimately did. The statements were made in answer to questions asked by counsel assisting, who, Ms Gobbo knew, would be examining her later in cross-examination. The last seven representations constituted part of Ms Gobbo’s sworn evidence before the Royal Commission. Counsel noted that that evidence was given with the assistance and benefit of voluminous documentary evidence that was available to the Royal Commission and which, Ms Gobbo had been aware, would have exposed any inconsistencies or misrepresentations in the evidence which she gave. Further, counsel noted that Ms Gobbo was a central witness in the inquiry instituted by the Royal Commission, and she knew that it was highly probable that any evidence given by her would be subject to close scrutiny and examination.
In response, counsel for the respondent noted that s 65(2)(c) requires that the representations be made in circumstances that made it ‘highly probable’ that the representations were reliable. Counsel noted that the first four representations, which were made on 11 April 2019, were not made in the context of formal evidence given by Ms Gobbo, but, rather, were part of a conversation, which she had with counsel assisting the Royal Commission in preparation for her evidence. It was submitted that the fact that the statements were made in a process that was referred to as a ‘conversation’ conveyed that they were made in the absence of the rigour, which would ordinarily apply to evidence that is given in a courtroom.
It was further submitted that the representations, made by Ms Gobbo during her sworn evidence before the Royal Commission, were also not made in circumstances which make it highly probable that they were reliable. First, it was noted that the evidence was not the subject of any real scrutiny. Further, Ms Gobbo experienced significant health issues, which required her to have frequent breaks and interruptions. In the course of her evidence, she was required to take a medication for pain, and her health issues were such that she was required to be accorded frequent breaks. In March 2019, she was excused from giving evidence because of her health issues.
In addition, counsel noted that there were a number occasions in her evidence in which Ms Gobbo lacked specific recall about the matters concerning which she was then being examined. Her evidence concerned matters that had occurred more than two decades previously. Further, it was submitted, it is evident that Ms Gobbo’s evidence was affected by matters that she had read, either in the media, or by accessing Royal Commission materials online.
Conclusion
The requirement in s 65(2)(c), that the representation, that is sought to be adduced, be made in circumstances that make it ‘highly probable’ that the representation is reliable, is clearly a stringent prerequisite to the admissibility of any such representation.[6]
[6]Conway v The Queen (2000) 172 ALR 175, 222 [146].
In SIO v The Queen[7] the High Court was concerned with the content of the requirement in s 65(2)(d)(ii) that, in order that a previous representation be admissible, it be made in circumstances that made it likely that the representation is ‘reliable’. In considering the effect of that requirement, the court stated four propositions which are relevant for the present case. First, the focus demanded by s 65, on the circumstances in which a particular representation was made, is inconsistent with an impressionistic evaluation involving a compendious approach directed to all of the representations which are sought to be adduced.[8] Secondly, the focus of the requirement, that the representation be made in circumstances that made it probable the representation is reliable, is not on the apparent truthfulness of the person who made the statement, but, rather, on the objective circumstances in which it was made.[9] Thirdly, the language of s 65(2)(d) is directed to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether it is likely or not that the representor is a reliable witness.[10] Fourthly, the circumstances in which the particular representation was made may include other representations, made before or after the representation in question, which form part of the context in which the relevant representation was made.[11]
[7](2016) 259 CLR 47 (‘SIO’).
[8]Ibid 65 [61].
[9]Ibid 68 [70].
[10]Ibid 68–9 [72].
[11]Ibid 68 [71].
Bearing those principles in mind, I do not consider that the fourth representation, sought to be adduced by the applicant, was made in circumstances, which make it highly probable that the representation was reliable.
The representation was made in the course of a preliminary conference between Ms Gobbo and senior counsel assisting the Royal Commission, albeit that the content of the conference was recorded and transcribed. However, it was not made in the context of formal evidence before the Royal Commission. The questions asked of Ms Gobbo were of an informal nature, and, as I have discussed when considering the first three representations, Ms Gobbo was indulging, at that point, in a significant amount of retrospective rationalisation of the conduct in which she had engaged when dealing with the Drug Squad in the period in question. In those circumstances, I am not satisfied that the fourth representation was made in circumstances that make it highly probable that it was reliable.
The remainder of the representations, which are to be considered — representations 5 to 8 and 10 and 11 — each consisted of answers given by Ms Gobbo to questions asked of her by counsel assisting, in cross-examination, before the Royal Commission. As counsel for the applicant has explained, in giving her evidence, Ms Gobbo would have been aware that the Royal Commission had available to it a significant volume of material, which would enable her evidence to be tested and evaluated.
The fifth representation was made in answer to a question by counsel as to the circumstances in which Ms Gobbo’s relationship with Mr Strawhorn commenced. The question, and the answer to it, were directed to an issue of which, it might be fairly expected, Ms Gobbo would have had a clear recollection, albeit that it related to events that had occurred some twenty years previously.
Similarly, the sixth representation was made in answer to a question by counsel, which suggested that Mr Strawhorn had threatened Ms Gobbo by putting to her that he knew that she was a part of what had been going on with her employer (who was then under investigation by the Drug Squad). Again, the nature of the question, and the circumstances in which it was put to Ms Gobbo, were such as to make it highly probable that Ms Gobbo’s response to the question (the sixth representation) was reliable.
The seventh and eighth representations constituted answers given by Ms Gobbo to questions directed to the meetings, which Ms Gobbo had with Mr Strawhorn. Those questions were connected with, and related to, the questions which had preceded them. The responses to the questions, comprising the seventh and eighth representations, were general in form. They did not require Ms Gobbo to call upon a detailed recollection in relation to specific facts. They were directed to circumstances in Ms Gobbo’s life, which she would have been expected to recall, at least in general form. In those circumstances, it follows that the representations were made in circumstances that made it highly probable that they were reliable.
The tenth and eleventh representations were made in answer to the question by counsel assisting as to how Mr Strawhorn acquired information from Ms Gobbo about matters, which were the subject of her confidential professional communications with her clients. The critical part of the representations was the factual statement by Ms Gobbo that accused persons understood that if Mr Strawhorn made a promise to them, he ‘ended up delivering’.
Again, those two questions asked of Ms Gobbo concerned general matters about which it could be expected she had an appropriate recall. They were central to the issues with which the Royal Commission was concerned. They constituted answers given to counsel assisting in the course of cross-examination. In combination, those considerations are such that it may be concluded that the tenth and eleventh representations were made by Ms Gobbo in circumstances that made it highly probable that they were reliable.
For the foregoing reasons, for the purposes of s 65(2)(c), I am persuaded that representations number 5 to 8 and 10 and 11 were made in circumstances that make it highly probable that the representations are reliable.
Evidence Act s 65(7)(a)
Counsel for the applicant also sought to submit that the representations are admissible pursuant to s 65(2)(d) and s 65(7)(a), on the basis that they were made against the interests of Ms Gobbo because the representations tended to damage her reputation.
In view of the conclusions that I have reached, in considering the admissibility of the previous representations by Ms Gobbo under s 65(2)(c) of the Act, it is not necessary to consider this alternative basis of admissibility in any detail. It is sufficient to note that I am not persuaded that the representations, made by Ms Gobbo, were against her interests on the basis that they tended to damage her reputation.
As the High Court has observed in AB v CD (a pseudonym),[12] Ms Gobbo’s actions, in purporting to act as counsel for accused persons while covertly informing against them, were ‘fundamental and appalling breaches’ of her fundamental obligations as counsel to her clients, and to the system of justice.[13] In a number of the representations, which are sought to be adduced, it is clear that Ms Gobbo did not make any statement, which would have added to, or exacerbated, the damage that necessarily occurred to her reputation arising from the conduct in which she had engaged. Indeed, in some of the representations, it is apparent that Ms Gobbo sought, retrospectively, to rationalise and mitigate the gravity of misconduct in which she had engaged by attributing it to her naivety at the time.
[12][2018] HCA 58
[13] Ibid [10].
For those reasons, I would not be persuaded that the representations are admissible pursuant to s 65(2)(d) and (7)(a) of the Evidence Act.
Evidence Act s 135
Finally, counsel for the respondent submitted that if the representations were admitted, the respondent would suffer prejudice, arising from its incapacity to be able to cross-examine Ms Gobbo about the content of the representations. It was submitted that that form of prejudice would substantially outweigh any probative value of the evidence sought to be adduced, and, accordingly, the evidence of the representations is inadmissible pursuant to s 135 of the Evidence Act.
In any case in which firsthand hearsay evidence is admitted pursuant to the provisions of Part 3.2 of the Evidence Act, some prejudice may be occasioned to the party against whom the evidence is adduced, arising from that party’s inability to test the credibility and reliability of the evidence by cross-examination. However, in the present case, the evidence was given by Ms Gobbo in the course of the Royal Commission, in which she was able to be questioned and cross-examined by representatives of a number of interested parties.
Further, it is evident, from the sections of the transcript of the Royal Commission to which I was referred in argument, that the respondent will have available to it a number of matters, which will enable it to make appropriate submissions relating to Ms Gobbo’s credibility and reliability, if it seeks to do so. Other evidence relating to Ms Gobbo’s credibility may be admissible pursuant to s 108A of the Evidence Act. Finally, it would be appropriate for the respondent, in the referral hearing, to submit that the court, in determining the questions referred to it by the Court of Appeal, should apply to its consideration of the hearsay evidence the same direction which is required to be given to juries in respect of such evidence pursuant to s 165(1)(a) and (2) of the Evidence Act.
Taking those matters into account, I am not persuaded that the probative value of the representations, which I have otherwise determined are admissible, is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondent. Accordingly, I do not accept the submission, made on behalf of the respondent, that those representations should be ruled inadmissible pursuant to s 135 of the Evidence Act.
Summary of conclusions
For the foregoing reasons, I have concluded that representations 5, 6, 7, 8, 10 and 11, as specified in Table A of the Hearsay Notice, served by the applicant on the respondent, are admissible in evidence. Representations 1, 2, 3, 4 and 9 are inadmissible.
I should add that, as discussed with counsel in the course of submissions, it was not practicable, at this point in the proceeding, to determine whether the representations, which I have ruled to be admissible, contain statements of fact which are in fact relevant to any of the issues which I must determine in answering the questions referred by the Court of Appeal. Accordingly, my conclusions as to the admissibility of those representations does not conclude the question whether they are relevant to the determination of those questions.
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