Bray (a Pseudonym) v The Queen

Case [2014] VSCA 276

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0111

ANDREW BRAY (A PSEUDONYM)[1]
Applicant
v
THE QUEEN
Respondent

[1]To ensure that there is no possibility of identification of the individuals concerned, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES: MAXWELL P, WEINBERG and SANTAMARIA JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 17 July 2014
DATE OF JUDGMENT: 7 November 2014
MEDIUM NEUTRAL CITATION: [2014] VSCA 276
JUDGMENTS APPEALED FROM: DPP v [Bray] [2013] VCC 1054 (Ruling No 1) (Judge Cannon)
DPP v [Bray] [2014] VCC 779 (Ruling No 2) (Judge Cannon)
DPP v [Bray] [2014] VCC 797 (Ruling No 3) (Judge Cannon)

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EVIDENCE – Hearsay rule – Exceptions – Criminal proceedings – Maker of previous representation not available – Deceased complainant – Statement to police – Cross-examined at committal – Whether police statement admissible – Whether committal transcript admissible – Whether accused had ‘reasonable opportunity to cross-examine’ – Whether probative value outweighed by danger of unfair prejudice – Common law discretion to exclude – Whether judge erred in not excluding evidence as unfair to accused – Haddara v The Queen [2014] VSCA 100 – Criminal Procedure Act 2009 s 295(3)(a) – Evidence Act 2008 ss 65(2)(b), 65(3), 137.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr S Bayles Turnbull Lawyers
For the Crown Mr D A Trapnell QC with
Ms C Parkes 		Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

  1. I have had the advantage of reading in draft the reasons for judgment of Santamaria JA.  For the reasons which his Honour gives, I too would refuse leave to appeal.

WEINBERG JA:

  1. I agree with Santamaria JA.

SANTAMARIA JA:

Introduction

  1. The applicant is currently on trial in the County Court at Melbourne charged with rape.  The complainant had made a statement to the police, and gave evidence at the committal hearing.  She was cross-examined at that hearing.  However, she died before the matter came on for trial. 

  1. In pre-trial argument, the prosecution applied to have the complainant’s statement, and a transcript of the evidence she gave at committal, admitted into evidence. The prosecution relied upon s 65(2)(b) and s 65(3) of the Evidence Act 2008 (‘the Act’) as the basis for the admissibility of the statement, and transcript, respectively. 

  1. The trial judge granted the application. In doing so, she rejected an argument on behalf of the accused that, in both cases, she should exclude the evidence on the ground that ‘its probative value [was] outweighed by the danger of unfair prejudice to the accused’ within the meaning of s 137 of the Act.

  1. Originally, the applicant confined his submission to that section.  On 27 May 2014, however, this Court published its reasons in Haddara v The Queen.[2]

Subsequently, the applicant has also contended that the trial judge erred in refusing to exclude the evidence in the exercise of the general unfairness discretion specifically recognised and explained in Haddara. 

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Bray (a Pseudonym) v The Queen [2014] VSCA 276
Case
[2014] VSCA 276
Decision Date

CaseChat Overview and Summary

In Bray (a Pseudonym) v The Queen, the appellant contested the admissibility of certain evidence presented by the prosecution, which included a police statement and the transcript of the complainant’s committal evidence. The case revolved around the deceased complainant’s statement to police and her cross-examination at committal, both of which the prosecution sought to admit under specific sections of the Evidence Act 2008. The appellant argued that the probative value of this evidence was outweighed by the danger of unfair prejudice, and thus should be excluded under s 137 of the Act.

The court was tasked with determining whether the hearsay exceptions under s 65(2)(b) and s 65(3) of the Act applied to the complainant’s police statement and committal transcript, respectively. Additionally, the court had to assess if the appellant had a reasonable opportunity to cross-examine the complainant, and whether the probative value of the evidence justified its admission despite potential prejudice to the accused. The trial judge ruled in favour of the prosecution, holding that the evidence was admissible and that its probative value was not outweighed by the danger of unfair prejudice. The appellant sought to appeal this decision, arguing that the trial judge had erred in not excluding the evidence.

The Court of Appeal considered whether the trial judge’s decision should be reviewed under the principles established in House v The King, which typically apply to appeals against convictions. The appellant argued for a less restrained approach to the interlocutory appeal, suggesting that the Court should not follow its earlier decision in McCartney v The Queen. However, the Court determined that the principles of appellate restraint, particularly in relation to interlocutory appeals, still applied. Consequently, the Court of Appeal upheld the trial judge’s decision, affirming that the evidence was properly admitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Pre-trial argument took place before a judge in the County Court. The prosecution applied to tender the complainant’s police statement and the transcript of her committal evidence pursuant to s 65(3) of the Act.[3] As previously indicated, the applicant opposed the admission of that evidence, albeit at that stage solely on the basis of s 137 of the Act.[4] [3]Part 3.2 of the Evidence Act 2008 (Vic) is entitled ‘Hearsay’. Division 1 of Part 3.2 is entitled ‘The hearsay rule’. Section 59 contains the ‘hearsay rule’. Section 59(1) provides:[4]Section 137 provides:Exclusion of prejudicial evidence in criminal proceedingsIn a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. The prosecution indicated that, pursuant to s 65(2) of the Act, it would seek to rely on the evidence of IA as to previous representations made to him by the complainant. However, subsequently, IA recanted some of that evidence, and the issue of its admissibility is now of no importance so far as this proceeding is concerned. A judge in the County Court ruled in relation to the argument heard on 9 July 2013 (‘Ruling No 1’).[5] She ruled that the evidence of the complainant, in the form of a representation which she had made to her social worker and which was contained in her police statement, was admissible pursuant to s 65(2)(b).[6] She further ruled that her committal cross-examination was admissible pursuant to s 65(3). She rejected the applicant’s submission that the probative value of the evidence was outweighed by the danger of unfair prejudice. [5]DPP v [Bray] [2013] VCC 1054 (Judge Cannon) (‘Ruling No 1’).[6]The judge accepted that prior representations comprising complaints to Dr S and the Detective Senior Constable ‘would qualify pursuant to s 65(2)(b)’ but that she was ‘of the view that the probative value is not of the same calibre as the [MH] complaint evidence’. The prosecution filed a notice of incriminating conduct pursuant to s 23 of the Juries Directions Act 2013. The prosecution sought to rely upon some of the answers contained in the applicant’s record of interview with police, and a telephone call allegedly made by the applicant to IA, as incriminating conduct. The trial commenced before another judge in the County Court. IA said that he wished to recant some of his committal evidence and the jury was discharged. A further voir dire commenced in respect of IA’s evidence. Eventually, the prosecution indicated that it no longer proposed to rely upon the evidence of IA as it did not consider him to be a witness of truth. The matter was refixed for trial. Counsel for the applicant applied to have the trial judge revisit Ruling No 1. That application was made on the basis that circumstances had changed in that IA was now not being called as a prosecution witness, whereas at the time of the previous application it was anticipated that he would give evidence. The trial judge refused the application to revisit Ruling No 1 (‘Ruling No 2’).[7][7]DPP v [Bray] [2014] VCC 779 (Judge Cannon) (‘Ruling No 2’).

Decision

Reasons for decision

Immediately thereafter, counsel for the applicant sought certification, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009, of Ruling No 1 and Ruling No 3 by the trial judge.[9] That application was granted and both rulings were certified.[9]Section 295 provides:Right of appeal against interlocutory decision(1)This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence.(2)Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.Note See the definition of interlocutory decision in section 3.(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies—(a)if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and(b)if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and(c) if the interlocutory decision is made after the trial commences, either—(i)that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial; or(ii)that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal. The applicant, through his solicitors, filed with the Court of Appeal Registry a notice of application for leave to appeal against the interlocutory decisions of 26 August 2013 (Ruling No 1) and 3 June 2014 (Ruling No 3). In making Ruling No 1, the trial judge distinguished what she called ‘committal evidence’ from ‘complaint evidence’. She referred to them as follows: The ‘others’ included MH, Dr S and the Detective Senior Constable. The trial judge, then, summarized the statement that the complainant had made to the police, in which she gave details of having been anally raped on 20 October 2010 at 11.30pm.[11] Her Honour then summarized the evidence that the complainant had given at the committal.[12][11]Ibid [11]–[35].[12]Ibid [36]–[64]. Having examined various authorities relating to ss 65 and 137 of the Act, the trial judge said: In the course of Ruling No 3, the trial judge said: The applicant, no doubt concerned to avoid, if possible, the need to overcome the sizeable difficulty associated with challenging on appeal an exercise of judicial discretion, submitted that the rulings under attack in this case should not be approached in accordance with House v The King[15] principles. [15](1936) 55 CLR 499 (‘House’). In that regard, the applicant submitted that this Court should not follow its earlier decision in McCartney v The Queen.[16] There it was held that an appeal against conviction, arising from a refusal by a trial judge to exclude evidence under s 137 of the Act, did not involve House reasoning. However, the Court in that case, citing KJM v The Queen (No 2),[17] went on to say that the position would be different in relation to an interlocutory appeal. The case for appellate restraint at the interlocutory appeal stage was said to be even stronger in this State than in New South Wales[18] because the system of interlocutory appeals here extended to allow a defendant to seek to challenge evidentiary rulings by way of such appeal. [16](2012) 38 VR 1 (‘McCartney’).[17](2011) 33 VR 11. [18]Where it was held in DAO v The Queen (2011) 81 NSWLR 568 that House principles governed interlocutory appeals from a decision regarding the admissibility of tendency evidence.

Ratio Decidendi

Legal Principle Established

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