Bufton v The Queen
[2019] VSCA 96
•1 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0082
| JANICE JOY BUFTON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 May 2019 |
| DATE OF JUDGMENT: | 1 May 2019 |
| DATE OF REASONS: | 2 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 96 |
| JUDGMENT APPEALED FROM: | R v Bufton (Ruling No 1) [2019] VSC 232 |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Admissibility – Murder – Applicant struck deceased with motor vehicle – Prosecution reliance on hearsay representations of deceased eyewitness – Witness gave statement and participated in a video-recorded ‘walk-through’ re-enactment – Whether trial judge erred in ruling representations admissible – Whether representations made in circumstances that make it likely they are reliable – Whether probative value of evidence outweighs the danger of unfair prejudice to the accused – Leave to appeal refused – Evidence Act 2008 ss 59, 62, 65(2)(b) and (c) – Sio v The Queen (2016) 259 CLR 47; DPP v Asling (Ruling No 2) [2017] VSC 38 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Danos | Irwin & Irwin Law |
| For the Respondents | Mr K Armstrong | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA
NIALL JA:
Introduction
At about 12.50 pm on Monday, 30 October 2017, Colin Snooks suffered fatal injuries when run over by a Holden utility motor vehicle driven by the applicant. When struck by the vehicle, Mr Snooks was walking towards Fyans Road, along the driveway of the applicant’s rural property situated at 221 Fyans Road, Fyans Creek.
The prosecution alleges that the applicant murdered Mr Snooks, having deliberately driven the utility at him intending either to kill him or cause him really serious injury. According to the applicant, the collision was an accident. She has pleaded not guilty to murder (although a jury is yet to be empanelled).
Benjamin Weston witnessed the collision. He made a statement to police on the day of the fatal incident, and the next day took part in a video-recorded ‘walk-through’ and interview with police at the scene. Mr Weston died, however, on 8 October 2018, before a committal hearing was held. Thus, the applicant was denied the opportunity of testing Mr Weston’s evidence by cross-examination.
Relying on ss 65(2)(b) and (c) of the Evidence Act 2008 (‘the Act’), the prosecution has served a hearsay notice on the applicant pursuant to s 67 of the Act, with respect to previous representations made by Mr Weston in his statement to police on 30 October 2017 and the ‘video re-enactment’ on 31 October 2017. The substance of the previous representations are:[1]
a. As to observations of the [applicant] when she attended at Green Hill Lake Reserve at Ararat;
b. As to the termination of a telephone conversation with Colin Snooks on 29 October 2017; and
c. As to the events of 30 October 2017 prior to and during his attendance at 221 Fyans Rd., Fyans Creek.
[1]See [26] below.
The applicant objected to admission of Mr Weston’s hearsay representations.
On 11 April 2019, the trial judge ruled that the evidence was admissible (‘the ruling’ or ‘the interlocutory decision’);[2] and, on 26 April 2019, refused certification under to s 295(3) of the Criminal Procedure Act 2009 (‘CPA’).
[2]R v Bufton (Ruling No.1) [2019] VSC 232 (‘Reasons’).
By notices dated 26 April 2019, the applicant seeks review of the judge’s refusal to certify pursuant to s 296(1) of the CPA, and seeks leave to appeal against the interlocutory decision under s 295(2), on grounds that assert that the trial judge erred in ruling that:
1. … the representations of the witness Benjamin Weston were made in circumstances that make it unlikely that said representations were a fabrication.
2. … it was highly probable that the representations of Benjamin Weston were reliable.
3. … pursuant to section 135(a) of [the Act] the probative value of the representations made by Benjamin Weston substantially outweighed the danger that the evidence might be of unfair prejudicial value.
4. … pursuant to section 137 of [the Act], the probative value of the representations made by Benjamin Weston was not outweighed by the danger of unfair prejudice to the [applicant].
For the reasons that follow, we consider that the application to review the judge’s refusal to certify, and the application for leave to appeal the interlocutory decision made on 11 April 2019, must be refused.
Overview of the facts
In order to understand the issues, it is necessary to say more about the prosecution case and the challenged hearsay representations.
The applicant and Mr Snooks met in 2008. In January 2016, Mr Snooks separated from his wife and went to live with the applicant at her property at 221 Fyans Road, Fyans Creek, taking a caravan with him. The applicant’s was a rural property with a long driveway leading to her home.
It seems that Mr Snooks and the applicant had a volatile relationship. On a number of occasions Mr Snooks complained to police that the applicant had assaulted him.
On Monday, 30 October 2017, Mr Snooks and Benjamin Weston (whom Mr Snooks had befriended at Christmas time in 2016) drove together to the applicant’s property in Mr Snooks’ red dual cab Holden Colorado utility, in order to collect Mr Snooks’ caravan.
According to Mr Weston, as set out in his statement, they drove up the driveway to the house. Mr Snooks turned the utility around and backed it up to the caravan which was parked in the driveway. As they got out of the vehicle, the applicant came out of the house and approached them, yelling abuse at Mr Snooks. She told him he was not taking the caravan. Mr Snooks said that he was. During the ensuing argument, the applicant accused Mr Snooks of infidelity to her with his ex-wife and was critical of his behaviour towards her. While the argument was proceeding, Mr Weston tried to hitch the caravan to the vehicle, but was unable to do so.
The applicant then reached into the open driver’s door of the utility and removed the keys from the ignition. She then yelled abuse at Mr Weston, who decided to leave. He told Mr Snooks he was leaving, and started walking along the driveway towards Fyans Road. Shortly afterward, Mr Snooks caught up to him on foot, and asked Mr Weston to call ‘000’ and speak to the police. Having dialled the number, Mr Weston handed his telephone to Mr Snooks, who walked further along the driveway towards the road. Mr Weston remained where he was.
According to Mr Weston’s account, he noticed the applicant get into Mr Snooks’ vehicle and start it. The applicant drove the vehicle around the rear of the house, before coming back into the driveway, where she paused momentarily near the caravan. Revving the engine hard, the applicant then drove along the driveway in Mr Weston’s direction, at a speed he estimated as ‘at least’ 40 kilometres per hour. He jumped off the driveway to avoid being struck, but the vehicle continued on towards Mr Snooks, who was further along the driveway towards the road. Mr Snooks was facing away, talking on the phone.
Mr Weston stated that he yelled, ‘Watch out!’, and that Mr Snooks turned around with a look of horror on his face. Mr Snooks jumped off the driveway to his right, but the utility swung over to the right and ran ‘straight over the top of him’. The bonnet of the utility hit Mr Snooks and he went straight under the wheels. Mr Weston said that he saw no brake lights. The vehicle skidded and came to a stop, with Mr Snooks lying unconscious on his right side facing the front.
In his statement, Mr Weston said that he ran up and yelled at the applicant, ‘You stupid bitch! You’ve killed him’. He told the applicant to get back in the vehicle and back it up, following which Mr Weston was able to pull Mr Snooks partially out from under the car. He described speaking to the 000 operator, and of the applicant providing CPR to Snooks.
The time stamp of the 000 recording indicates that the collision took place at 12.50 pm. In the recording, before Mr Weston can be heard asking the applicant to back up the vehicle, the applicant can be heard to say, ‘... he ran in front of us’. Mr Weston can be heard to reply, ‘This is fucking murder, he didn’t run in front of ya’.
We have listened to the recording of the 000 recording. The transcript of the recording includes the following:
TIME STAMP: Monday October 30 2017, 1249 and 32 seconds.
...
OPERATOR: Thank you, Telstra. Hello, what address do you need police?
MR SNOOKS: Yeah, I need the police. Yeah, I’m – I’m having a domestic dispute - - -
[Discussion about address]
OPERATOR: Who are you in a dispute with?
MR SNOOKS: My ex-partner. I’m trying to get my caravan back and she’s just driven off with my car.
OPERATOR: O.K. Give me one moment. And you don’t live at this address. Is that right?
MS BUFTON: ..........
TIME STAMP: Monday October 30 2017 - - -
MR WESTON: He’s off the bloody road.
MS BUFTON: .......... he ran in front of us.
TIME STAMP: - - - 1250 and 32 seconds.
MR WESTON: .......... this bloody woman.
OPERATOR: Sir, can you hear me?
MS BUFTON: .......... oh - - -
MR WESTON: ..........
MS BUFTON: Oh, my God.
MR WESTON: This is fuckin’ murder.
MS BUFTON: Why’d he run in front of me?
MR WESTON: He didn’t run in front of ya. He was - - -
MS BUFTON: He did. Help me – help me - - -
MR WESTON: ..........
MS BUFTON: - - - please.
MR WESTON: Back – back the car up.
MS BUFTON: You do it, please.
MR WESTON: No. You drove it down on him, you back it up.
MS BUFTON: I can’t, Ben. I’ve got the front wheel over him.
MR WESTON: Bullshit.
MS BUFTON: Help me pull him off.
MR WESTON: ..........
MS BUFTON: Give me the phone, please.
MR WESTON: No, back the car up.
MS BUFTON: I can’t. You .......... I ran over him.
MR WESTON: .......... already.
TIME STAMP: Monday October - - -
MR WESTON: ..........
TIME STAMP: - - - 30 2017, 1251 and 32 seconds.
MS BUFTON: How can ..........
MR WESTON: ..........
MS BUFTON: Say it’s 221 Fyans Creek Road. Just give it to me ..........
MR WESTON: You had the phone last, not me.
MS BUFTON: Help me, please. Why did he run in front of us for?
MR WESTON: You had the phone. I didn’t have it.
MS BUFTON: Yeah, that was ..........
OPERATOR: Sir, can you hear me?
MS BUFTON: Drag him out.
MR WESTON: I can’t drag him out. He’s fuckin’ stuck under the thing.
MS BUFTON: ..........
TIME STAMP: Monday October - - -
MR WESTON: You go back up to the house.
TIME STAMP: - - - 30 2017 - - -
MR WESTON: ..........
MS BUFTON: .......... ambulance, all right.
TIME STAMP: - - - 1252 and 32 seconds.
MS BUFTON: ..........
MR WESTON: ..........
MS BUFTON: I want to - - -
MR WESTON: Fuck, this is fuckin’ murder.
MS BUFTON: I didn’t know he ran in front of us.
MR WESTON: Bullshit, he was off the road. Here’s ya phone.
MS BUFTON: I tried to avoid him. That’s why I kept on the - - -
OPERATOR: Are you there?
…
When police arrived at 1.13 pm, Mr Snooks was deceased. The applicant told police, ‘He jumped out in front of me. I couldn’t get out of the way’.
Police from the Major Collision Investigation Unit (‘MCIU’) and the Homicide Squad carried out a comprehensive examination of the scene. Detective Leading Senior Constable Michael Hardiman reached the following principal conclusions:
· The area of impact was on the southern grass verge approximately 93 metres from the front gate.
· The area of impact was approximately one metre after the commencement of skid marks on the grass caused by braking, which ran for 22.2 metres in total.
· At the commencement of the skid marks, the vehicle was travelling at a minimum speed of 45 kilometres per hour.
· After the track of the driver’s side wheels left the gravel driveway for the grass verge on the southern side, the vehicle’s tyre marks showed three distinct changes in direction over the next 53 metres to the point of impact. These were a right hand steering manoeuvre from the driveway onto the southern grass, a movement left slightly back towards the driveway, and finally, a right steering manoeuvre towards the southern grass away from the driveway.
A typed statement was taken from Mr Weston within hours of the event. He signed it at 4.10 pm on 30 October 2017.
The next day, commencing at 11.10 am and continuing until 11.27 am, Mr Weston took part in a ‘walk-through’ of the scene with a Detective Sergeant Sol Solomon from the Homicide Squad, during which he elaborated on, and slightly modified, the account he had given in the statement.
On 30 and 31 October 2017, police interviewed the applicant. She claimed that she had intended to drive past Mr Snooks so as to close the front gate and try to make him speak to her about their relationship. Based on legal advice, she declined to comment in response to questions about the circumstances of the collision. She did assert, however, that the collision was not her fault.
A post mortem examination of Mr Snooks revealed that he had suffered multiple fractures and internal injuries which caused his death.
Prosecution submissions to the trial judge
The prosecution distilled twelve representations — conveniently referred to as ‘representations 1 to 12’ — from Mr Weston’s statement upon which it sought to rely. Thus, the prosecutor provided the trial judge and counsel for the applicant with a marked-up copy of Mr Weston’s statement, identifying the representations. The representations are:
1. I first met Colin SNOOKS who is also 71 years old just before Christmas 2016 when I was camped at the Green Hill Lake Reserve at Ararat. We were camped together, right beside each other. We camped there for a couple of months — he was in his caravan and I was in my motorhome. We got to know each other pretty well over this time.
2. I first saw Jan when she came to visit Colin at the campsite. She came to visit twice and each time she yelled at him and abused him.
3. Yesterday morning, I called to let him know that I was back in town … While he was on the phone to me, he and Jan had an argument … and the conversation ended. Two hours later, around 2.00pm he’s turned up at the Reserve … Colin stayed into the evening and slept in his car.
4. This morning at approximately 9.00am we drove to Ararat in Colin’s red ute and we waited for the banks to open. Colin went into one of the banks I think it was the Commonwealth Bank. I saw in the car waiting for him. We then drove to Stawell so that Colin could see his solicitor … We were in Stawell for about ½ hour whilst he was at the solicitor. We then drove to Halls Gap to the Post Office so that he could collect his mail … and waited until 12.15pm but the mail Colin was waiting for was still not there … We then left Halls Gap to drive to Fyans Creek to collect the caravan.
5. We arrived at Colin’s address at Fyans Creek at around 12.30pm … Colin had already brought a pair of bolt-cutters in the ute to break in if he had to. The gate was wide open and we drove straight in … The house looked like it was locked up and someone had gone away on holidays.
6. The white caravan which was about 9m long, and about a 5 or 6 berth was parked facing up the driveway on the right hand side of the house. He turned the car around and backed the car up to it. As we both got out of the car, Jan has come out of the front door and slammed the door behind her. She has started yelling abuse at Colin ‘You’re not taking that caravan. You’re not having that van.’ Colin said ‘I’m taking the van’. He was adamant that he was taking it. She’s started saying ‘You just come here to fuck me and then you don’t even kiss me, you just roll over and go to sleep.’ She said ‘You’re fucking your ex-wife.’ It was all about her. The whole conversation was about what Colin did to her. They argued for about 15 minutes, she didn’t stop. Jan stood in front of him the whole time during the argument. I was standing over near the van by the passenger side of the ute, trying to hitch it up. She just kept screaming at him about his infidelities. He didn’t retaliate. He didn’t say anything, he was just trying to get his caravan and get out of there.
7. The argument has gone around to the front of the ute. Jan must have seen the keys in the ignition through the open driver’s side door. She has grabbed the keys. I saw her take them out of the ute … We didn’t manage to hook up the caravan before she took the keys.
8. Jas has then turned on me because Colin wasn’t responding. She yelled at me ‘You’re only here to back him up against me.’
9. I then said to Colin, ‘Bugger this. I’m out of here.’ I started walking down the driveway ... I had walked about 100m towards the gate away from the caravan when Colin has caught up to me and said ‘Phone the Police, phone 000’ ... I said to him, ‘I can’t phone the police, I don’t know the address here.’ I dialled triple 000 for him and gave him my phone. I stood still where I was and then I heard Jan get into the car and start it. Colin was walking towards the gate, facing the gate and was on my phone to Triple 000. I think he would have been 150m further down from where I was standing.
10. I then watched as Jan drove Colin’s ute around the back of the house to the left of me. She was gunning the engine and revving hard at the back of the house. It seemed like about 30 seconds passed before I saw the ute come back around the same way with Jan still driving it. I saw her pause momentarily where the ute had been parked in front of the caravan. She has then gunned the engine hard, she seemed angry and then I’ve watched her as she headed straight towards me. I would estimate that she was going at least 40km/h. If I hadn’t of moved out of the way she would have run straight over the top of me. I jumped to my left off the driveway and watched as she kept going … he was on the phone and facing the gate. He was still in the middle of the driveway himself. I yelled out to him ‘watch out!’. I did this as loudly as I could. I saw Colin turn around and he had a pure look of horror on his face. He leapt off to the right hand side of the driveway, on the other side of the driveway to where I was. At the same time, the ute has swung over to the right and Jan has driven straight over the top of him. The ute has hit him with the bonnet and Colin has gone straight under the wheels. I saw no brake lights go on as she hit him. The car actually went up in the air – she was travelling so fast. It hit him with a good solid thump. The car has skidded then and Colin was jammed with the rear wheel butted up against the back of his neck. Colin was lying on his right side facing the front of the ute. He didn’t make any sound, he wasn’t conscious at all.
11. I’ve yelled out to Jan ‘You stupid bitch! You’ve killed him.’ I’ve then run up to Colin and my primary concern was to get him out from under the car. My phone was lying on the ground about 3 or 4 meters behind the car. Jan got out of the ute and I told her to ‘get back in the car’. I had to tell her 2 or 3 times – I think she was in shock by then too, I think. Jan eventually got back in the car after telling me to do it. She got back in and backed it up a couple of feet and I managed to pull him out the side of the car. She desperately wanted to do CPR on him. I don’t know CPR so I let her to do it. I picked up the phone and he Triple 000 operator, a female, was still on the line. The operator instructed me to count the compressions that Jan was doing. Jan was getting all hot and sweaty after a couple of minutes so I gave her my phone and took over doing compressions on Colin whilst she spoke to Triple 000. Jan obviously knew what she was doing and we swapped over again but she had my phone after I gave it to her the first time. That was the last I saw my phone. I think we were both trying CPR for about 15 minutes before the services got to the property and took over. Jan didn’t say anything during this time about what had happened ...
12. My phone is a little black Optus phone, registered to me and on a pay-as-you-go. I powered up the phone in the ute this morning on the way to Ararat. It was fully charged.
In support of the admissibility of Mr Weston’s previous representations, the prosecution relied upon both written and oral submissions.
The prosecutor invoked ss 65(2)(b) and (c) of the Act in order to tender Mr Weston’s previous representations made in his statement and video re-enactment, and submitted that the steps to determine admissibility are those set out by Kaye JA in Asling:[3]
Based on the foregoing analysis of the principles that are relevant in this case, in order to determine the admissibility of the representations … sought to be adduced by the prosecution, it is necessary to address four issues in relation to each of those items of evidence:
(1) Is the evidence relevant to a fact in issue?
(2) Is the hearsay evidence, sought to be adduced, first hand hearsay?
(3) Does the evidence come within any of the exceptions to the hearsay rule relied on by the prosecution?
(4) For the purpose of s 137 of the Act, is the probative value of the evidence outweighed by the danger of unfair prejudice to the accused if the evidence were admitted.
[3]DPP v Asling (Ruling No 2) [2017] VSC 38, [34] (‘Asling’).
It was submitted that it is ‘unarguable that the representations made by Mr Weston in both his police statement and the subsequent re-enactment, are highly relevant’, since he ‘was an eye witness and made direct observations of the events leading up to the alleged offending, the alleged offending itself, and the aftermath of the alleged offending’.
The exception to the hearsay rule in s 65(2)(b), it was submitted, ‘is aimed at capturing representations made soon after the event and under the pressure of the event in circumstances making it unlikely for the representation to be concocted’.
In relation to both ss 65(2)(b) and (c) the prosecutor submitted in writing:
(a) In the present case, the link between the happening of the events described by Mr Weston and the representations he made are undeniable. The statement was made on the 30 October 2017, the very same day on which the asserted facts are alleged to have occurred, and the video re-enactment was made the following day. This clearly falls within the ‘shortly after’ category.
(b) Mr Weston has no criminal history in any state or territory and was not criminally concerned in any way, and the re-enactment and statement he made are entirely consistent with each other.
(c) There appears to be no apparent motive for Mr Weston to have concocted or invented any of the representations he made, he was simply recalling what he witnessed, and he made his statement almost immediately after the asserted facts occurred.
(d) At the time Mr Weston made the observations it was broad daylight, there were no obstructions to his vision and he was not affected by alcohol or drugs. In any event, there is no requirement to establish that the ‘asserted fact’ in fact occurred.
(e) The representations were made when the events were clearly fresh in Mr Weston’s mind, and on both occasions they were made to a police officer or in the context of an understanding that a false statement would expose Mr Weston to prosecution. This makes it more likely that the representations were reliable (s 65(2)(c)) and less likely that the representations were a fabrication (s 65(2)(b)).
(f) The representations made by Mr Weston in the statement and the representations made in the re-enactment are also consistent with the recording of the ‘000’ call, which makes it even more unlikely that the representations were a fabrication.
(g) Both the statement made by Mr Weston, and the subsequent re-enactment clearly meet the criteria in s 65(2)(b) of being ‘shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication’.
With respect to s 137 of the Act, the prosecutor submitted that the risk of any unfair prejudice flowing from the evidence can be cured by directions as to the use of the evidence and edits to the re-enactment.
Applicant’s submissions to the trial judge
In written submissions responsive to the prosecution’s submissions in support of the admissibility of the evidence, counsel for the applicant objected to the admissibility of Mr Weston’s evidence. Counsel submitted:
4. That objection put forward on two basis:
(i) The evidence of [Benjamin Weston] is a fabrication.
(ii) The evidence of [Benjamin Weston] should be excluded pursuant to either s 135 or 137 of the Evidence Act 2008 as there has not been the opportunity to cross examine the witness and therefore there has been an inability to test it against other credible evidence which is at odds with hearsay representations of [Benjamin Weston].
5. Fabrication
a. It would appear from a reading of [Benjamin Weston’s] statement that at the time of the impact which caused [Snooks’] demise he purported to be ‘150 [metres]’ from the accident.
b. According to [Benjamin Weston’s] statement he had phoned 000 as requested by Snooks and then handed the phone to him. Clearly at that point in time they are together. For some unexplained reason Snooks continues to walk along the driveway and [Benjamin Weston] does NOT (if his description is accurate).
c. At this distance of 150 [metres] [Benjamin Weston] calls out to Snooks to warn him of the approaching vehicle.
d. [Benjamin Weston] observes Snooks who has a ‘look of horror on his face’, despite the vehicle obviously being between [Benjamin Weston] and Snooks, and asserts that there was ‘no brakes [sic] lights on’.
e. After the collision has occurred [Benjamin Weston] states that he ‘ran’ up to where Snooks was ‘under the vehicle’.
f. It is submitted that all of the above a.— e. is totally contradicted by a careful listening to the 000 call.
g. The [first] part of the call is identified as Snooks talking to the 000 operator, then there is a moment of silence, followed by what is in all likelihood the [applicant] screaming and then the voice of [Benjamin Weston] is identified.
h. That is, within a few seconds [Benjamin Weston] is at a point where he is heard on the phone on which seconds previously Snooks has been talking. If I can put it this way—not even Husain [scil, Usain] Bolt could cover 150m in that time frame.
i. If this analysis is correct it explains how [Benjamin Weston] is able to observe Snooks' face just prior to the accident and the other immediate observations of Snooks’ position under the vehicle.
j. It also undermines [Benjamin Weston’s] assertion that there were no brakes lights as he must have been at the front of the vehicle, not in a position to observe the brake lights.
6. Discretionary exclusion
a. In the alternative it is submitted that the hearsay evidence of [Benjamin Weston] should be excluded as there has been no opportunity to cross examine him and his evidence is significantly at odds with the police reconstruction of the accident.
i. The location where [Benjamin Weston] stated the accident occurred and where the actual location is demonstrated by the other evidence is significantly different.
ii. The assertion by [Benjamin Weston] that there were no brake lights is contradicted by the police reconstruction which show skid marks for 22 metres prior to the accident.
iii. [Benjamin Weston’s] description and reconstruction would appear to assert that Snooks moved off the driveway and the [applicant] turned and followed him to strike him down on the grass verge.
iv. The police reconstruction has the vehicle driven by the [applicant] travelling for 50 metres on the grass verge prior to the accident.
v. If Snooks remained on the driveway, the [applicant’s] position on the grass verge would not have brought them into contact.
vi. The police reconstruction suggests that Snooks was walking along the grass verge just prior to the accident. This has to be guess work.
Counsel’s oral submissions largely reflected what had been reduced to writing. In developing the fabrication claim, counsel focussed on Mr Weston’s assertion in his statement that Mr Snooks was 150 metres further down the driveway from Mr Weston himself when the collision occurred. Counsel also relied on the content of the 000 call and the reconstruction by Detective Hardiman, in order to demonstrate the alleged falsity of the 150 metre claim. He argued that the prosecution’s contention that this statement by Mr Weston may simply be a mistake ought not be accepted, submitting that the statement was a ‘bald-faced lie’. Counsel argued that Mr Weston was Mr Snooks’ ‘mate’, and that he had ‘gone out of his way to try and help Mr Snooks’ and to put the applicant ‘in the gun’.
Notably, counsel for the applicant made no objection to the form in which the representations were to be tendered.
The ruling
In a careful and detailed ruling, the judge determined that the evidence of Mr Weston’s previous representations should be admitted. The judge observed:[4]
[4]Reasons [77]–[93].
I accept, and indeed, there were no submissions made to the contrary by [the applicant’s counsel], that all of the impugned representations were about matters of relevance in the trial. They all concern the connection between Weston and Snooks, the relationship between Snooks and the [applicant], the movements of Snooks in the hours leading up to his death, and the events preceding, at the time of, and immediately following, the fatal collision.
I also find that all of the representations constitute first hand hearsay.
Focussing on the statement of Weston, all representations other than the first two concerned events which occurred either on the day the representations were made, or, in the case of representation 3, the day before. I am satisfied that representations 3 to 12[[5]] all meet the requirement of having been made ‘shortly after’ the asserted facts occurred. That this was so was not disputed by [the applicant’s counsel].
[5]See [26] above.
As to the circumstances in which representations 3 to 12 were made, to my mind, and largely for the reasons advanced by the prosecution, those circumstances make it unlikely that the representations were fabrications.
Weston was a friend of Snooks and was in his company in the hours leading up to, and at the time of, the fatal collision. He was an eye witness to the shocking event in which Snooks was run over by the [applicant]. He made the observations he subsequently related in daylight hours, with no apparent hindrance to a clear view of the events. He was unaffected by alcohol or any other substance.
When Weston came to be making his statement to the police within a few hours of the death of Snooks, he knew full-well the great importance of the process in which he was involved, and of the pressing need to tell the truth about what he had observed at Fyans Creek, and anything else he knew which would throw light on the relationship between Snooks and the [applicant].
On the face of it, the statement he provided was a cogent-sounding, well organised account of the events he had witnessed only shortly before. Having made the statement, he was willing to sign the document, and sign a perjury jurat attesting to its truthfulness.
There was no apparent motive for Weston to have fabricated an account implicating the [applicant] in the murder of Snooks. True it is that Snooks had been his friend, but there was nothing to indicate any ill-will by Weston towards the [applicant], and it would have been a grave and wholly unexpected thing for him to have falsely implicated her in a crime in the circumstances.
The next day, and still within 24 hours of the fatal collision, and with those events surely still fresh in his mind, Weston took part in the walk-through. This event was expertly handled by Detective Sergeant Sol Solomon, an experienced Homicide Squad investigator. Again, it must have been perfectly clear to Weston that he was about to take part in a very important process, and that it was imperative that he tell the truth.
Solomon introduced the process by saying to Weston, ‘... this is all ... to clarify your statement so we have a full understanding of what you actually observed ... to help us with our enquiries’.
The walk-through gave Weston the opportunity to elaborate on and clarify the account he had given the day before in the statement. It had the considerable advantage of permitting him to point out where he, Snooks, and the [applicant], were at various times during the events. He took part in the procedure in interested and animated fashion.
Having viewed the walk-through myself, I believe Weston gave every indication of being a witness to the events the day before who was doing his best to describe the events, supplemented by the ability he now had to actually point out things at the scene.
To my mind, there were no substantial differences between the account Weston gave during the walk-through and the account he gave in the statement the day before.
I believe the fact of that walk-through and its general consistency with what he had said in the statement, together with the fact that it was another opportunity for Weston to fully appreciate the importance of being truthful is something I am entitled to take into account in considering the ‘circumstances’ in which the representations in the statement were made.
Another aspect of the circumstances in which the representations in the statement were made was the fact that Snooks had been speaking on Weston's phone to the 000 operator at the time of the collision, and that the call was still connected in the aftermath of the collision. Weston was aware of this fact, and would have expected that the 000 recording, to which he actually referred during the walk-through, would have recorded the sounds of the collision, and things said by himself and the [applicant] in the aftermath.
As I have already indicated, I am satisfied that the circumstances in which representations 3 to 12 were made make it unlikely that the representations were fabrications. Indeed, I would go as far as to say that, to my mind, there is nothing whatsoever that would realistically raise the prospect of fabrication.
That is not to say, of course, that everything said in the representations was correct. That is not a requirement for admissibility, and indeed, is irrelevant to my task.
With respect to ss 135 and 137 of the Act, the judge said:[6]
No matter which of sections 135 and 137 is being considered, the very high probative value of the evidence of the impugned representations would make exclusion under either of the provisions exceedingly unlikely.
Weston was an eye witness to the events which led to the death of Snooks. His account, which I am required to assume the jury would accept as being both truthful and accurate, would go a substantial way to establishing that the [applicant], in a fit of apparent anger, deliberately ran Snooks over, thereby causing his death. In circumstances where the prosecution seeks to prove a deliberate running over and the defence relied on by the [applicant] is an accidental running over, it is difficult to imagine evidence of stronger probative value than the evidence constituted by the impugned representations.
As against that, the only unfair prejudice pointed to by [the applicant’s counsel] is the fact that if the hearsay evidence was admitted, the [applicant] would be denied the opportunity of cross-examining the witness, and confronting him with other evidence which may point to the apparent inaccuracy of some of the representations.
In my view, such unfairness can be addressed perfectly well by directions of law.
I note, also, that the fact of the hearsay evidence being permitted to be led in no way limits the ability of the defence to challenge the accuracy of the representations by contrasting them with other available evidence about the facts.
[6]Reasons [108]–[112].
Submission in this Court
In this Court, counsel for the applicant relied on the submissions made to the trial judge together with the following additional submissions.
Counsel submitted that, ‘If ever there was a case where the assertions of Benjamin Weston needed to be tested this is certainly the case here’. It was submitted that the representation that Mr Weston made in his statement that he was 150 metres from the accident, can be contrasted with where he places the accident in the re-enactment. The actual position that can be seen in the re-enactment is a considerable distance away. Further, when one takes into account that Mr Weston’s voice is heard on the 000 call within seconds after the accident, the reliability of his observations is further undermined. The uncertainty of where Mr Weston actually was at the time of the collision, so counsel submitted, calls into question his other relevant representations, including that he saw no brake lights and that he saw a look of horror on Mr Snooks’ face. In this case, counsel submitted, the representations are at odds with evidence of other events which bear directly on the reliability of Mr Weston’s representations. As we followed it, counsel asserted that the evidence was ‘incredible, fanciful, or preposterous’. Once more, however, counsel made no complaint about the manner in which it was intended to tender the representations.
Moreover, counsel did not submit that there was anything about the circumstances in which Mr Weston made his police statement, or about the circumstances in which the walk-through was conducted, that made it probable that the representations by Mr Weston, relied on by the prosecution, were a fabrication, or that made it less probable that they were reliable.
Unsurprisingly, the respondent’s counsel largely recapitulated the submissions made to the trial judge. In addition, he submitted that interlocutory appeals concerning evidentiary issues should be strictly confined, and that the Court will not lightly overturn the decision of a judge refusing certification.[7]
[7]See Peterson (a Pseudonym) v The Queen [2019] VSCA 12, [6], [10].
Analysis
Turning first to the relevant provisions of the Act, Part 1 of the Dictionary defines representation as follows:
representation includes—
(a) an express or implied representation (whether oral or in writing); or
(b) a representation to be inferred from conduct; or
(c) a representation not intended by its maker to be communicated to or seen by another person; or
(d) a representation that for any reason is not communicated;
…
Part 3.2 of the Act is concerned with ‘Hearsay’. Section 59 sets out the hearsay rule as follows:
59 The hearsay rule—exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Note
Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales in R v Hannes (2000) 158 FLR 359.
Section 62 provides (so far as is presently relevant):
62 Restriction to “first-hand” hearsay
(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
…
As we have said, the prosecution’s notice under s 67 invoked ss 65(2)(b) and (c). So far as is relevant, s 65 provides:
65 Exception—criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(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;
…
Sio[8] concerned s 65(2) of the Evidence Act 1995 (NSW). In a passage relied upon by the applicant’s counsel, the Court (French CJ, Bell, Gageler, Keane and Gordon JJ) made it clear that:[9]
It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion.
[8]Sio v The Queen (2016) 259 CLR 47 (‘Sio’).
[9]Sio, 65 [60].
The facts of Sio involved the appellant driving a co-offender, Richard Filihia, to a brothel. Filihia entered the brothel alone, intending to commit robbery. He was armed with a knife. Filihia fatally stabbed a brothel employee, took cash from the employee, left the premises and was driven away by the appellant. The appellant was charged with the murder of the employee and with armed robbery with wounding. At trial, he was acquitted of murder, but convicted by the jury of the armed robbery with wounding. A principal question determined by the High Court concerned the admissibility of Filihia’s ERISP (electronically recorded interview of a suspected person) and statements to police implicating the appellant in the armed robbery; and in particular, whether Filihia’s statement to police about the involvement of the appellant was made in circumstances that made it likely that it was reliable.
The Court made it clear that the party seeking to prove a relevant fact in issue in the case must first identify the particular representation to be adduced in proof of that fact. That having been done, the circumstances in which that representation was made may then be considered to determine whether, at the time it was made, it was made in circumstances that make it likely to be reliable. Thus, the Court said:[10]
It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.
It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.
[10]Ibid [57]–[58].
In Asling — in a ruling later upheld by this Court[11] — Kaye JA discussed the operation of ss 65(2)(b) and (c). He said:[12]
Section 65(2)(b) and s 65(2)(c) have been discussed in a number of decisions of appellate courts, including by the Full Court of the Federal Court in Conway v The Queen[13] and in Williams v The Queen,[14] by the New South Wales Court of Criminal Appeal in R v Ambrosoli[15] and Harris v The Queen,[16] and by this Court in Azizi v The Queen.[17]
In Conway, the Full Court expressed the view that s 65(2)(b) appears to have had its origins in an aspect of the common law doctrine of res gestae. In particular, the court construed the word ‘when’ to require strict contemporaneity between the making of the representation and the occurrence of the fact asserted in the representation.[18] On the other hand, the addition of the expression ‘shortly after’, in subparagraph (b), is a ‘significant departure’ from that traditional doctrine.[19] In particular, the court considered that the phrase ‘shortly after’ is intended to exclude evidence of a recollection that might have ‘faded in its accuracy’ so as not to have remained clear in the mind of the representor.[20]
In a subsequent decision of the Full Court in Williams,[21] and in the decisions of the New South Wales Court of Criminal Appeal in Ambrosoli[22] and Harris,[23] it was considered that the requirement, that the statement be made ‘shortly after’ the events in question, was designed to ensure that the evidence, that was admitted, was unlikely to be a fabrication. In Harris,[24] Studdert J (with whom Grove and Whealy JJ agreed) adopted the following passage from the joint judgment of Whitlam, Madgwick and Weinberg JJ in Williams:[25]
… it would be a mistake, in determining whether a statement has been made ‘shortly after’, to over-emphasise such matters as whether the events in question were ‘fresh’ in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (‘when’) or under the proximate pressure of (‘shortly after’) the occurrence of the asserted fact … .
An issue has arisen in the authorities as to the precise ambit of the ‘circumstances’ which are relevant for the purposes of s 65(2)(b) and (c). Each provision, expressly, focuses on the circumstances in which the particular representation was made.[26] Nevertheless, it has been accepted that the ‘circumstances’ include previous, or subsequent, statements or conduct of the person, who made the representation, to the extent to which they reflect on the reliability of the circumstances of the making of the particular hearsay representation.[27]
Section 65(2)(c) does not, on its face, require any temporal connection between the making of the representation and the occurrence of the asserted fact. However, as noted in Conway,[28] the requirement in s 65(2)(c), that it be ‘highly probable’ that the representation be ‘reliable’, is an ‘onerous one’.
[11]See Asling v The Queen [2018] VSCA 132.
[12]Asling, [19]–[23] (citations as in original).
[13](2000) 172 ALR 185 (‘Conway’).
[14](2000) 119 A Crim R 490 (‘Williams’).
[15](2002) 55 NSWLR 603 (‘Ambrosoli’).
[16](2005) 158 A Crim R 454 (‘Harris’).
[17](2012) 224 A Crim R 325 (‘Azizi’).
[18]Conway (2000) 172 ALR 185, 217–18 [120] [123].
[19]Ibid 218 [123].
[20]Ibid 219 [134]–[135].
[21](2000) 119 A Crim R 490, 502-503 [47]–[49].
[22](2002) 55 NSWLR 603, 612 [23].
[23](2005) 158 A Crim R 454, 461–2.
[24]Ibid 461 [36].
[25](2000) 119 A Crim R 490, 502 [48].
[26]R v Mankotia [1998] NSWSC 295; Williams (2000) 119 A Crim R 490, 503–505 [50]–[55]; R v Ambrosoli (2002) 55 NSWLR 603, 616 [34].
[27]Ambrosoli (2002) 55 NSWLR 603, 616 [36]–[37]; Azizi (2012) 224 A Crim R 325, 337 [50] (Bongiorno JA); [Sio v The Queen (2016) 259 CLR 47, 68 [71]-[72]].
[28](2000) 172 ALR 185, 222 [145]–[146].
In the instant case, there can be no doubt that the hearsay evidence of Mr Weston is highly probative of a fact, or facts, in issue. He was an eye-witness to Mr Snooks’ running down. In particular, his evidence is directly relevant to the drawing of an inference as to whether the collision was deliberate or was an accident.
We consider that the circumstances in which the police statement was taken are significant, and make it unlikely that the representations contained in it were a fabrication; and, in addition, make it highly probable that those representations are reliable.
At the time that he was struck by the vehicle and killed, shortly before 12.50 pm, Mr Snooks was speaking to a 000 operator. The brief exchange at 12.50 pm between Mr Weston and the applicant, which can be heard on the 000 recording, was spontaneous. There is no reason to believe that Mr Weston knew it could be heard by anyone else, although it was recorded. In that exchange, Mr Weston unequivocally refuted the applicant’s claim that Mr Snooks ran in front of the vehicle, and made it plain that he considered that, from what he saw, the applicant had deliberately run Mr Snooks over (describing her actions as ‘murder’). Shortly afterward, at 1.13 pm, police arrived. And within a few hours of the fatal incident, at 4.10 pm, Mr Weston’s statement was taken.
Plainly, Mr Weston must have known that he was being questioned, and was making a statement, about a very serious incident. The statement was signed, and contained the usual jurat. In our view, the time sequence within which the statement was taken — in the context of the exchange that had already passed between the applicant and Mr Weston — make it unlikely that Mr Weston had, during the time intervening between the incident and the taking of the statement, concocted or fabricated his account. Accordingly, the circumstances in which Mr Weston, in representations 3 to 12 in the statement, described the incident in which Mr Snooks was run over by the applicant’s vehicle, make it unlikely that those representations were fabrications.
For the same reasons, it can be concluded that the representations were each made in circumstances that made it also highly probable that those representations were reliable (even were it accepted that his estimate of 150 metres between where he was standing and the point of impact may be mistaken). Mr Weston was an eyewitness to the critical events, which occurred in broad daylight, close to where he was standing. His statement was taken shortly after the events, in circumstances in which they would undoubtedly have been fresh in his memory. As we have noted, the statement containing the representations was taken from him in circumstances which would have impressed upon him the importance of the need to be accurate in describing the events contained in the statement.
The same conclusions may be drawn about the representations made during the walk-through. It was conducted fewer than 24 hours after the incident witnessed by Mr Weston. It is plain, from a viewing of the walk-through, that it was conducted with a degree of solemnity, in circumstances in which Mr Weston must have understood the importance of being truthful and accurate in what he described to Detective Sergeant Solomon. Obviously, the events of the previous day were still fresh in his memory. Detective Sergeant Solomon took care not to ask any leading questions. The walk-through was not rushed. Mr Weston had the advantage of being on the scene, at the very place at which the incidents occurred, when he described them in the course of the walk-through interview. Having already made a statement to the police, in circumstances making it unlikely that it was a fabrication, in our view it is equally unlikely that the contents of the walk-through interview would be a fabrication.
As we have said, the principal attack on the representations made by the applicant’s counsel is that they are fabricated. That submission does not, however, withstand scrutiny. As part of that suggestion of fabrication, counsel for the applicant relied upon the comment made by Mr Weston, in the ninth representation, that when he heard the applicant get into the vehicle and start it, Mr Snooks was 150 metres further from where he himself was standing. That estimate, by Mr Weston, was plainly inconsistent with the contents of the walk-through interview. In our view, however, that consideration does not detract from the improbability that the contents of either the representations contained in the police statement, or in the walk-through, were fabricated or otherwise unreliable. The estimate of that distance given by Mr Weston was no more than that, namely, an estimate. Such estimates, particularly by lay persons, are notoriously inaccurate. Furthermore, it is not apparent to us how the inaccuracy of Mr Weston’s estimate of distance might rationally bear on the question whether any representation (in his police statement and in the walk-through) was made by him ‘in circumstances that make it unlikely that the representation is a fabrication’.
Having viewed for ourselves the video of the walk-through, it seems to us that, although it may be arguable that there are slight differences in detail, the accounts in both are generally consistent one with the other. We reject the contention advanced on behalf of the applicant that in part the representations made are ‘incredible, fanciful, or preposterous’.
Since the matter was raised by the applicant’s counsel, we would add that, although Mr Weston may have been Mr Snooks’ friend, we see no reason to think that Mr Weston had a motive falsely to implicate the applicant for Mr Snooks’ deliberate killing. And as far as we can see, there is nothing to suggest that Mr Weston had previously harboured any ill-will towards the applicant. Quite plainly, Mr Weston was not criminally concerned with the relevant events in any way, and he has no criminal history. Further, it is not suggested that he was affected by alcohol or drugs.
For those reasons the representations contained in the witness statement, and in the walk-through interview, were admissible pursuant to s 65(2)(b) and (c) of the Act.
Finally, we can see no basis for excluding the evidence under ss 135 or 137 of the Act.
In our view, the probative value of the evidence — in particular representation 3 to 12 — is high. Indeed, we consider that the probative value of the evidence substantially outweighs the danger of unfair prejudice in the case. Plainly, he having been an eyewitness, Mr Weston’s evidence is of considerable probative value. It must be accepted that the inability of counsel for the applicant to test Mr Weston’s evidence through cross-examination is a significant forensic disadvantage, and constitutes a substantial degree of prejudice to the applicant in the conduct of the trial. On the other hand, such prejudice is capable of being substantially alleviated by an appropriate and detailed direction by the trial judge to the jury. Without being overly prescriptive, such directions will necessarily include instructions on the role of cross-examination and its capacity to test credibility and reliability; and the forensic disadvantages flowing to the applicant from the inability to test Mr Weston’s evidence by cross-examination (including the inability to confront the witness with inconsistencies or new material). It will also be necessary for the judge to caution the jury against relying upon Mr Weston’s demeanour in the video re-enactment when assessing the credibility and reliability of his account, since the jury will not have the opportunity to observe and assess the demeanour of Mr Weston when his evidence is tested, or challenged, in cross-examination.
In these circumstances, it cannot be concluded that the probative value of the evidence is outweighed by the danger of unfair prejudice to the applicant arising out of the admission of it to evidence.
Conclusion
We are not persuaded that the judge’s ruling is attended by error. Indeed, with respect, we consider it to be correct.
The application to review the refusal to certify, and the application for leave to appeal the interlocutory decision, must be refused.
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