Craig Vitale v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0105

CRAIG VITALE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 September 2020
DATE OF JUDGMENT:	14 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 237
JUDGMENT APPEALED FROM:	DPP v Vitale (Unreported, Supreme Court of Victoria, Croucher J, 7 August 2017) (Conviction)

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CRIMINAL LAW — Appeal — Armed robbery and intentionally causing serious injury — Whether judge erred in admitting hearsay evidence of co-offender — Whether co-offender’s hearsay representations in police statement made in circumstances that make it likely that they were reliable.

EVIDENCE – Admissibility – Hearsay evidence – Maker of representations not available – Where maker of representations was accomplice – Whether representations made in circumstances that made it likely that representations reliable – Evidence Act 2008 s 65(2)(d) – Sio v The Queen (2016) 259 CLR 47 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr G Hughan	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Craig Vitale, the appellant, pleaded not guilty at a trial in the Supreme Court on 19 July 2017 to reckless conduct endangering serious injury to Thi Kim Luong (charge 1); armed robbery of Ms Luong (charge 2); attempted murder of Noel Kennedy (charge 3); and in the alternative, causing Mr Kennedy serious injury intentionally (charge 4) or causing him serious injury recklessly (charge 5). The prosecution alleged that he had committed these offences with his brother, Wayne Vitale.

At trial, the appellant’s ‘defence’ was that he was not involved in the offences. On 7 August 2017, however, the jury found him guilty of armed robbery and intentionally causing serious injury (acquitting him of reckless conduct endangering serious injury and attempted murder).[1]
[1]On 27 April 2018, the trial judge imposed a sentence of nine years’ imprisonment on the charge of intentionally causing serious injury, and six years’ imprisonment on the charge of armed robbery, two years of which was to be served cumulatively. The total effective sentence was thus 11 years’ imprisonment, upon which the judge fixed a non-parole period of seven years.

Of critical importance to the present application, the prosecution sought to have Wayne Vitale give evidence, but he refused to testify. As a result, he was declared to be ‘unavailable’, and the major parts of a statement he made to police — containing a number of representations supporting the prosecution case against the appellant — were admitted into evidence (over objection).

Pursuant to leave granted by a judge of this Court,[2] the appellant now appeals against his convictions for armed robbery and intentionally causing serious injury, on a single ground which asserts that the trial judge

erred in admitting into evidence parts of Wayne Vitale’s statement made to Police, which caused a substantial miscarriage of justice.

[2]Vitale v The Queen [2018] VSCA 212 (Niall JA).

In my opinion, the trial judge’s decision to admit the statement — or, more accurately, the representations contained in the statement — was correct. For the reasons that follow, the appellant has failed to establish that the admission of the statement resulted in a miscarriage of justice. The appeal must be dismissed.

The alleged offending

It is necessary to summarise the alleged offending. For that purpose, I can do no better than to adopt the trial judge’s summary in his reasons for sentence, in which he described the relevant events as follows:[3]

At about 7:45 p.m. on Saturday 1 October 2011, the evening following the AFL Grand Final, Wayne Vitale and his brother Craig Vitale drove to the Do Bottle Shop in Kingsville in their mother’s white Saab motor car. They were there to commit an armed robbery. Wayne entered the bottle shop first. He was meant to create a distraction for his older brother, who followed fifteen seconds later. Each man had his face covered, was wearing a hood of sorts, and carried a bag. Craig was also carrying a loaded sawn-off double-barrelled shotgun.
Immediately upon entry, Craig pointed the gun at the shopkeeper Thi Kim Luong. He put his bag on the counter and motioned at her aggressively to open the cash register. So scared was Ms Luong that all she could do was wave her hands in fright. Impatient with her, Craig then fired a shot at the cash register, which bent its steel frame. The shot also disintegrated other items on the counter into a confetti-like cloud. He then demanded money. Ms Luong told him there was none, while appearing to feign an attempt to open the till – although her fumbling may have been a result of terror. Craig then made a rather desultory attempt to open the till himself, but he too failed.
In the meantime, Wayne headed out of the shop with a slab or two of Jim Beam cans in his bag and another under his arm. A moment earlier, Ms Luong’s son Quoc Do entered the shop from the rear and saw both men. Mr Do armed himself with two bottles of wine and crouched down behind the shelves for cover. When Craig noticed Mr Do, he pointed the shotgun at him. As he walked backwards towards the front exit, Craig grabbed the bag from the counter, pointed the gun at mother and son again and told Mr Do not to do anything stupid.
These events were captured silently and from three angles on the shop’s internal CCTV cameras. While their ordeal was only brief – Craig was in the shop for only 41 seconds – Ms Luong and her son must have been terrified for every moment.
But worse was to come for Noel Kennedy, another innocent person just going about his own business. After the two brothers left the shop, they got into the Saab and headed off, with Wayne driving and Craig in the front passenger seat. A short time later, they noticed a Hyundai motor car behind them. It was being driven by Mr Kennedy, who had just picked up some fish and chips for his family. Wayne stopped the Saab. Craig got out carrying the shotgun. Mr Kennedy was in the course of a three-point turn, just about to drive away, when Craig walked up to the car and fired a shot through his closed driver’s side window, which smashed to smithereens. The bulk of the shot struck Mr Kennedy’s left wrist. His hand was on the steering wheel at that time. Some pellets also struck his right shoulder. Craig returned to the Saab, and Wayne drove them to their family’s home address. Craig then drove away in the Saab, alone.
[3]R v Vitale [2018] VSC 197, [1]–[5] (Croucher J).

The police investigation

Two and a half weeks after the armed robbery and shooting, on 19 October 2011, police executed search warrants at two properties. At the first of those properties, occupied by the appellant’s aunt — with whom he was staying — police located the white Saab used in the armed robbery on the front lawn of the premises. In the boot was a blue sports bag containing a sawn-off shotgun. The Saab was forensically examined, and particles highly characteristic of gunshot residue were found in various parts of the interior.

At the second property, where both the appellant and Wayne Vitale had resided at the time of the alleged offending, police found a black backpack containing an assortment of Winchester brand ammunition, including 12 gauge shotgun ammunition, air rifle pellets and other ammunition. A wooden case containing a sawn-off shotgun barrel and butt stock was also located.

The appellant was interviewed that day. He denied the offending, and said that he was at a birthday party at Endeavour Hills during the afternoon and evening of the relevant day. The appellant said that his cousin, ‘James Lua’, had attended that party claiming he had committed an armed robbery and shot a man. He said that he only occasionally drove the white Saab and denied any knowledge of the shotgun, the wooden case or the ammunition.

Police investigation subsequently revealed that there were no records of a James Lua travelling into or out of Australia prior to 2011. And although the appellant had said that his cousin James Lua had been staying at his mother’s house, the appellant’s mother denied that she had ever heard of such a person, and said that the name ‘Lua’ had no connection with the family.[4]
[4]At trial, the prosecution tendered an Admission of Fact pursuant to s 184 of the Evidence Act 2008, in which the appellant admitted that he had ‘no relative or person known to [him] by the names of James Lua’; that he had ‘no family with the name of Lua on either side of [his] family’; and that ‘James Lua is a fictitious person created by [him]’.

Almost five years later, in June 2016, police obtained warrants to place a listening device in the appellant’s vehicle and to conduct telephone intercepts. On 22 June 2016, news media played the CCTV footage of the armed robbery and an interview with Mr Kennedy. The next day, 23 June 2016, police spoke with Wayne Vitale, advising him that they were looking for his mother in relation to the white Saab and its connection to the armed robbery.

Not long after police had spoken to him, Wayne Vitale telephoned the appellant to tell him of the renewed police interest in the matter. The appellant later telephoned his brother and told him not to worry about the media coverage. They agreed to meet.

At about 1.27 pm on 23 June 2016, the listening device captured a conversation between the appellant and his brother. They discussed police having visited Wayne Vitale’s property, he expressing regret he had opened the door to them. They also discussed a segment that had been on the television news the night before. The two discussed the information police had about the robbery and what they knew about the car. There was then the following exchange:[5]
[5]Italicised portions translated from the Samoan language.

APPELLANT:        So apparently what — what have they got? So what have they said?
WAYNE VITALE: They’ve got nothing. They want to know the car. Khali, they got the numberplate.
APPELLANT:        That’s — who got the numberplate?
WAYNE VITALE:   That — the cunt who we did.
APPELLANT:        No, he didn’t. He’s a liar.
WAYNE VITALE:   He remembered it.
APPELLANT:        Brother, he’s a liar. I already looked, brother don’t lie cunt. He tried to figure it out. Brother, I already read the article. The article said about the thing. It didn’t say the numberplate.
WAYNE VITALE:   Nah, nah, but the thing is - - -
APPELLANT:        He doesn’t — but the cunt hasn’t got shit.

The two then discussed telling the police that they knew who was involved in the robbery and giving them names of persons who (so they would say) had left the country. Police would accordingly ‘travel the world’ investigating potential suspects. It seems clear that the appellant and his brother thought that someone had informed on them. The recorded conversation continued:

APPELLANT:        Brother, just be like, brother, I’m looking at 15 years, cunt. You see what it said, attempted murder. Brother, I fingered the cunt in the fuckin’ shoulder and the thing should have fuckin’ fucked his head off. I should have blew his head off when I had the chance. Fuck. I had a fuckin’ – – –
WAYNE VITALE:   That’s why I’m angry man.
APPELLANT:        Fuck, man, just leave it. It is what it is but remember, brother, he hasn’t got my numberplate. Brother, a white Saab with two – apparently — that’s the story, brother, that your brother wasn’t in the right mind frame. Are you listening to me brother, I can’t talk. I need you to be on the same page.

Shortly afterward, a second portion of conversation was recorded in the vehicle. The prosecution alleged that, during that part of their conversation, the brothers were watching a news report from the previous day in which the CCTV footage had been played. It seems clear from the recording that they were discussing the images seen in the CCTV footage. The following exchange was recorded:

WAYNE VITALE:   Oh here you come after me.
WAYNE VITALE:   Oh, fuck that’s nothin’, bro. Replay it again.
APPELLANT: ·      That’s nothing. So what have they got, Wayne? So is that all they’re [sic] got?
WAYNE VITALE:   Is that all they got. Fuck, why is she there?
APPELLANT:        Remember she followed you?
WAYNE VITALE:   Hmm. I thought you popped it earlier.
APPELLANT:        Nah, I popped it now when I was going — she was pissing me off. Fuckin’ shot in the cash register. I go, ‘Fuckin’ next one I’ll put in your head.’ This was when I — when she grabbed the cash and the son was over here and the son was, like, ‘I’m gunna call the cops,’ and you had already gone and I swore I said, ‘Nah, it’s too late.’ See by then she fucked it up. She fucked it up. They’ve got nothing, man.
WAYNE VITALE: Is that all?
APPELLANT:        So what have I got to worry about?
WAYNE VITALE:   No, you’ve got nothing to worry about. That’s not – – –
APPELLANT:        Any of your boys ask from Carrum Down from all that — question that — say, ‘Nah, I saw it.’ Say, ‘Probably the northern boys’ — yeah? ‘Brother was probably the northern boys. I heard of them doing it but’ — when they go, ‘Didn’t — did Craig ever — my brother never owned a firearm.’
WAYNE VITALE:   I didn’t know how fast you came out. I walked in and – – –
APPELLANT:        I was already gone.
WAYNE VITALE:   I walked in – – –
APPELLANT:        Yeah, ‘cause her son came out and he tried to fuckin’ throw the bottle, the faggot. I said, ‘The next one you fuckin’ pull I‘m gunna pull straight in your head.’ So what do you reckon? So at this stage they’re not looking for me.

Wayne Vitale’s statement

The day following the covert recording, 24 June 2016, police arrested both the appellant and his brother. When interviewed by police, Wayne Vitale initially denied any involvement in the armed robbery. Police then confronted him with his covertly recorded conversation with the appellant. He then asked to be re-interviewed, and provided a statement to police. A video and audio recording was made of him reading the statement aloud, initialling each page and signing it in two places, including beneath relevant ‘jurat’.[6] In circumstances I will later describe, the DVD of Wayne Vitale reading his statement, and signing and initialling it, became Exhibit 13 on the appellant’s trial and was played to the jury.[7] His statement was in the following terms:
[6]The jurat was: ‘I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury’. See Criminal Procedure Act 2009, s 112.
[7]See [18]–[20] below.

1.My full name is Wayne Felise VITALE and my contact details are known to police. I reside at [address] Hampton Park. I am currently employed in construction as a casual.
2.I make this statement voluntarily and have spoken to my Legal Representative George VASSIS before making this statement to police. I want to make this statement about the events that I was involved in on the 1st of October, 2011, in relation to the Armed Robbery at the Do Bottle Shop and Attempted Murder of Noel Kennedy. I understand that I am not obliged to say anything, but whatever I say or do will be recorded and may be used in evidence in Court. I also understand that I may become a prosecution witness in this matter.
3.On the 24th of June, 2016, I was placed under arrest by police and informed that I was under arrest for Attempted Murder and Armed Robbery for an incident that occurred on the 1st of October, 2011.
4.I was given my caution and rights, which I understood and taken to the City West Police Station and placed in an interview room. I then participated in a Record of Interview with Detective Senior Constable Warren HILL and Detective Senior Constable Kerryn MAKIN. During the Record of interview with police, I stated the matter did not involve me and I knew nothing about it
5.I now want to tell police the truth about the events that occurred on the 1st of October, 2011 and want to detail my involvement.
6.On the 24th of October, 2011, I returned from New Zealand to Melbourne with my then Partner and my Daughter who was 1 year old.
7.When we returned we went to live with my mum and dad for a few weeks in Hampton Park before moving in with my brother Craig and his house mate Pete BARRINGTON at [address] Maidstone. I did this because I was working at Link Logistics in Tullamarine and it was closer to work.
8.On the 1st of October, 2011, I was at home with my then partner and daughter. It was about after lunch when Craig came home.
9.It was on this day, in the afternoon, that Craig came to me and told me he needed money, I don’t really know why, as he had a job. He told me that he was going to a liquor shop to try and get some money. I assumed that to mean he was going to steal from the liquor shop.
10. When my brother approached me about ‘doing the liquor store’, I initially said no, I wanted to stay with my daughter. Craig said, it won’t take long, come for a drive.
11.I had not long been back in Melbourne and I was excited to be home with family and Craig is my older brother that l looked up to. I hadn’t seen him for a while and just wanted to hang out with him.
12.Craig was driving a white SAAB sedan at the time, I didn’t know who owned it at the time, but since found out it was my mums [sic].
13. On this day, Craig asked me to drive and be the ‘get away’ driver. I drove with Craig in the passenger seat, to a back street behind the bottle shop where a warehouse was. Craig told me where to park and that he was going to go in on his own.
14.When we got there, Craig changed his mind as [sic] told me to go in first and pretend to steal alcohol. He wanted me to be like a diversion for him and go in first. Craig didn’t tell me what he was going to do exactly, just that he needed money.
15. When we got there and parked at the back of a warehouse Craig told me to put a jacket on, as I was only wearing a shirt. There were also bags already in the car that Craig handed me to carry. Craig took the other bag. I did not know what was in the bags, the one I was given was light and I don’t think anything was in there. We stayed around the back for a while where some where houses [sic] are.
16. In relation to the firearm, I had been told by Craig about one week earlier that he had a gun, but I didn’t believe him. I had never seen the gun before the night of the robbery.
17. On the night of the robbery, when we were around the back preparing, this was when Craig showed me the gun, this was the first time I had seen it.
18. I would describe the gun that Craig showed me as long, it was sawn off double barrel. It was dark so I couldn’t tell what colour it was.
19. When I saw the gun, I was a bit shaky, thinking it’s real. This was the first time I had seen a gun. I realised this was a lot more serious than I thought. I didn’t feel I could turn back at that time. I was scared of the whole situation. I just wanted to drive the car, that’s all.
20.I drove Craig around to the liquor shop and he told me just to park up the road a bit further up. I parked and walked down to the shop.
21.Craig hesitated a bit, and said there were too much [sic] people walking around. We stopped just at the corner of the shop, near a house and stayed there for a bit and he said, we will just wait a bit for people to go. We waited for about 5 minutes, not long, hiding behind trees.

23.Craig told me to get ready, I was freaking out, knowing this was real. I told my brother I am scared. He said, just go steal some alcohol. He sent me in first to steal some alcohol, he made me look like the dummy, so he could come in afterwards and steal some money.
23.I didn’t know he was going to use the gun, I didn’t even know it was loaded. I was shocked when it happened. I thought it was just to scare them. I didn’t know how serious it was, I was so fucking dumb.
24.I walked in first, and I didn’t turn back, I was shit scared, I looked down and walked straight. I walked to the other side. I fucked up because I tried to put two slabs in the bag, but didn’t fit, that’s why it took me so long. It was then that I heard a big bang. I shit myself and was scared. I just picked up the slab and walked fast straight out of the store.
25. I could only hear a women [sic] scream and then hearing some other guy. I didn’t hear Craig saying anything; I just ran to the door and tried to get out as fast as I could. I put the slab of Jim Beam in the back seat. I turned the engine on and waited for Craig.
26. I was fucking shitting myself. I was waiting for Craig. When he jumped in the car, I just took off. I saw that Craig had the gun on his lap. I was about to zoom down the road and Craig goes to me hurry, drive, drive, drive. He then told me a short distance away to take the next left. He grabbed the steering wheel and pulled it to the left, so I had to take the left. He said, I think I saw someone following us. I had noticed a car behind us too. He told me to stop around the comer and I parked about 20 meters up on the left. I stayed in the car and was shaking. I said to him, what the fuck we have to get out of here.
27. When I pulled over, Craig got out of the car. Craig had the gun in his hand and walked behind the car. I stayed waiting in the car. After about 10 seconds, I heard massive bang.
28.I didn’t see anything about what was happening with Craig, as it happened so fast and was behind the car. It was also dark in the street. I just turned the car around. As I turned the car, Craig was running back to the car and jumped in. He still had the gun in his hands. I saw a car reversing out the street and just sped off down the main road. I drove out of the side street and turned right and went past the bottle shop. This was the only way I knew to get home.
29. I don’t know what road I was on as I don’t know the area.
30. When Craig got in the car, he told me to just drive off. We started to have a go at each other, saying things like, ‘what the fuck is this’ [sic]. I was fucking shaking driving the car. That’s when he told me he thought that guy was trying to follow us. We just argued while I was driving. I didn’t want to drive anymore and wanted him to drive. He was saying ‘stop being a pussy and just drive’.
31.When we were driving away, Craig told me he popped the car at the back, because he thought it was following us. Craig never mentioned anything about injuring anyone. When we got to the freeway, there was no talking between us, this was when I realised this was real. I kept driving until I got home.
32.When I got home I saw my then partner and she asked ‘what’s up’, because I was shaking. I didn’t want to tell her because I was shit scared. I went straight to bed. I know Craig took off with the car. Craig never said anything before he left. I left all the alcohol and the jacket and bag I had in the SAAB. I don’t know what happened to it, it wasn’t mine anyway.
[Paragraphs 33 to 37 excised by agreement.]
38. After police came on the 23rd June, 2016 to my house looking for my mother, I received a call from my ex-partner. She called me about our daughter, and that’s when she said, ‘oh I just saw your brother on the news’. This was the first I knew about the media article in relation to the robbery in 2011.
39. I was in contact with my brother Craig about the police investigation throughout the day. On the Thursday the 23rd of June, 2016 I met up with my brother about 1.30-2pm at the Lyndhurst pub. We discussed the robbery on the 1st of October 2011 and the police investigation and were talking about lying to police when asked, and saying it didn’t happen and that kind of thing. Craig said there was a video on face book or a news channel or something. Craig googled it on my phone and we watched the video. We were discussing, how it had been five years and how the fuck can they bring it up after all this time. ...
[Part of paragraph 39, and whole of paragraph 40, excised by agreement.]
41.On the 24th of June, 2016, I completed the Record of interview at the City West police station, and I later requested to speak to my Solicitor George VASSIS which I did. After speaking to my Solicitor, I chose to be further interviewed by police and make this statement, which I have done voluntarily.
42. What I have detailed to police in relation to the events that I know about that took place on the 1st of October, 2011 are true and correct to the best of my knowledge.

Wayne Vitale’s sentence

On 24 April 2017, Wayne Vitale pleaded guilty in the County Court to armed robbery and handling stolen goods.[8] The judge sentenced him to three years and six months’ imprisonment for the armed robbery and to two months’ imprisonment on the charge of handling stolen goods (to be served concurrently), and fixed a non-parole period of 18 months. But for the pleas of guilty, the judge said, she would have imposed a sentence of five years’ imprisonment with a non-parole period of three years.
[8]DPP v Vitale [2017] VCC 471 (Judge Gaynor).

Wayne Vitale’s statement is admitted under s 65 of the Evidence Act 2008

Wayne Vitale’s name was endorsed on the indictment as a witness. Counsel for the appellant sought to cross-examine him on a Basha[9] hearing. When he was called on a Basha hearing at the commencement of the trial, however, he refused to answer any questions.
[9]R v Basha (1989) 39 A Crim R 337. See now Criminal Procedure Act 2009, ss 198B and 198C.

In the face of Wayne Vitale’s intransigence, the prosecution foreshadowed an application under s 38 of the Evidence Act 2008 (‘the Act’) to cross-examine him as an unfavourable witness, and, if he maintained his refusal to give evidence, an application under s 65 to tender the evidence contained in his statement. In an ‘anticipatory ruling’ — set out below — the trial judge indicated that s 38 would not apply if Wayne Vitale refused to give evidence, but that representations in his statement would be admissible pursuant to s 65(2)(d). The judge noted that the parts of the statement to be tendered into evidence would be a matter for discussion between the parties.

Wayne Vitale subsequently was called on a voir dire. He once more refused to answer any questions. As a result, the prosecution applied under s 65(2)(d) of the Act to adduce evidence of certain representations, which were contained in an agreed, edited version of the interview in which he read aloud, initialled and signed his statement. The trial judge acceded to that application in a second ruling, set out below. Ultimately, the prosecution played to the jury the edited video of the interview (Exhibit 13).

The judge’s ‘anticipatory ruling’

The judge’s anticipatory ruling was as follows:[10]

In my view, if [Wayne] Vitale refused to give evidence again, I would find that he is unavailable within the meaning of s 65. Next, were that to occur, I would allow the Crown to lead evidence of parts of Wayne Vitale’s statement to police and his reading of the same parts of that statement out to police when interviewed. The precise parts of that statement would need to be the subject of discussion, but in essence I think they should be confined to matters such as Wayne Vitale’s assertion that he and his brother were involved in the armed robbery, their roles in the robbery, and that his brother was the one who held and used the gun on the two occasions that it was fired.
There may be scope for other matters, but they are the main ones that I think meet the tests in s 65(2)(d)(i) and (ii). In particular I am satisfied that Wayne Vitale’s previous representations about those matters were, one, against his interests at the time they were made and, two, were made in the circumstances that make it likely that each of those representations is reliable.
In saying that I would confine them in this way, I would entertain submissions from, for example, [the appellant’s counsel] that he would prefer other aspects of the statements to be admitted for context or the like. Again, this could be a matter of discussion.
In coming to this view about s 65 in this case, I am acutely aware of the fact that Wayne Vitale was a co-accused and is an alleged accomplice of Craig Vitale, as well as the fact that the spring-board for such a ruling, namely the unavailability of Wayne Vitale as a witness, means or would mean that he cannot be cross-examined on his assertions. Of course, I have considered the decisions such as Sio v The Queen^[[11]] in reaching my conclusion.
If this ruling comes to be necessary, and the evidence is admitted, there will of course be the safeguard that firm directions can be given on the hearsay nature of the evidence and the fact that it comes from an accomplice — who have been known to shift blame — and the usual directions that go with that sort of evidence.
I would not accede to the application under s 65(2)(c) because I am not satisfied that those representations were made in circumstances that make it highly probable that they are reliable.
So, as I said, I shall provide more detailed reasons for these rulings or anticipatory rulings at a later time^[[12]]but they are my present thoughts ...
[10]Emphasis added.
[11]Sio v The Queen (2016) 259 CLR 47 (‘Sio’).
[12]See footnote 14 below.

The trial judge’s second ruling

In the course of his ruling on the prosecution’s application to admit parts of Wayne Vitale’s statement, the judge (among other things) referred to the covert recordings of conversations between the appellant and his brother ‘where it is obvious that they are discussing the armed robbery and the shooting, or shootings’, and said:[13]
[13]Emphasis added.

There is a Crown application before me pursuant to s 65(2)(d) of the Evidence Act to lead evidence of representations made by Wayne Vitale in his statement made to the police at the time of his interview back in June of last year, as well as his reading out those same parts of that statement during his interview to police, and the signing of that statement (which is a normal sort of jurated [sic] statement). And that is what he does: when he signs it, he goes through the jurat acknowledgement.
As has just been indicated in discussion, notices have only been given formally now, but this has been a matter that has been in the offing since Wayne Vitale was called last week, at which time he made it plain that he did not wish to give evidence or would not give evidence in this case. He was at that time told by me that, were he to refuse to give evidence, he would be at risk of being in contempt of court. He was given several chances to reconsider his position. He also had been advised by [name], an experienced criminal law solicitor, prior to his being called last week. But, nevertheless, he maintained his position and refused to give evidence.
In the meantime, I heard a provisional application by [the prosecutor] on behalf of the Crown pursuant to s 65 to lead evidence pursuant to sub-s 2(d)(i) and (ii) of that provision. In particular, s 65(2)(d) provides that 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 was (i) against the interests of the person who made it at the time it was made (ii) made in circumstances that make it likely that the representation is reliable.
I heard argument from both the Crown and the defence on that provisional application last week and gave a provisional ruling that indeed I would admit pursuant to s 65(2)(d) the substance of Wayne Vitale’s representations or assertions in his statement and in the interview where he read his statement going to matters such as the involvement of him and his brother in the armed robbery and their respective roles — namely, as he put it, that his brother Craig was the one who held the gun during the armed robbery and fired it and also afterwards as they were driving away his brother Craig was the one who fired the gun at Mr Kennedy’s car, whereas Wayne was the one who entered the shop first and who took the alcohol. He (Wayne) did not have a gun.
Following that provisional ruling, the parties got together and edited the statement in a way that suited both parties. In particular, I indicated at the time that there may be things beyond those broad factors that I had indicated that the defence might wish to have in the statement in order to place things in context or in order for example to mount an argument about reliability or credibility in front of the jury. And indeed that’s what’s occurred in the interim.
It was also indicated, however, that despite that provisional ruling, Wayne Vitale, should be called again (both parties agreed with this course) in order to ascertain whether, at this moment when he would otherwise be required to give evidence, he was still maintaining his position, namely that he didn't want to give evidence and indeed was refusing to do so. The point being, that, of course, between his original refusal last week and now, he might have had a change of heart and it might have been unnecessary to go through the s 65 process. But, as it is happened, he has, this morning, taken precisely the same stance. I did not threaten him with contempt this morning because I considered it would be unfair to him to be, if you like, held in contempt a second time for doing precisely the same thing. I sought to explain that to him. I don’t know that he really understood it, but nevertheless I think in fairness that’s what I had to do and that is what I have done.
Having considered the matter previously, having considered the matter again in the interim and having looked at the materials before me now, I maintain the view that I did previously — that it is appropriate to grant the application under s 65(2)(d). As I indicated on the previous occasion, I will give reasons in more detail at a later time for that particular stance and that particular view.
And I also, in so far as is necessary to do so, extend time for the making of such an application. As has been indicated in discussions this morning, there is no issue about that from [the appellant’s counsel], nor is there any issue that the statements or representations were against the interests of Wayne Vitale. [The appellant’s counsel] maintains the position, without rearguing it, that the ‘reliability question’ should not be resolved against his client. But, for the reasons I have given previously and which I will give in the future, I accept the prosecution’s submission in that regard.
I should also add that, in the interim, the jury have heard the listening device recording which is conceded involves only two people, Wayne Vitale and Craig Vitale, where it is obvious that they are discussing the armed robbery and the shooting, or shootings, plural. It seems to me also equally obvious that the roles that are being ascribed to each person in those discussions are consistent with the way in which Wayne Vitale ascribes those roles in his statement and in his reading back of that statement to police in the interview. While, under s 65, it is not a question of looking at the reliability per se of the individual who is giving the evidence or if there is evidence in general, but rather it is the circumstances in which the representations were made, that is the question, and whether that is likely to be — more correctly, whether it is made in the circumstances that make it likely that the representation is reliable. That is the test. But it seems to me that the fact that this is the sequence of events does go to that question additionally, and it is also more powerfully made apparent to me when I have heard that tape played to a jury, and it is this. The order of things is that the conversation that is recorded occurs soon before they are arrested. The second step is that, when Wayne Vitale is arrested, he initially makes denials. The third step is that, during the course of the interview, the police disclosed to him some of this material. The fourth step is that, after the interview, Wayne Vitale consults a lawyer. The next step is that he makes the statement and the interview where he reads back the statement and signs it. The next step is that, in that statement, his assertions as to what he did and what his brother did are entirely consistent with what he and his brother have both said in an unguarded conversation recorded by the listening device in the car only a relatively short time before that and which he was alerted to in the interview. I think those circumstances add to the circumstances that make it likely that representation is reliable.
In addition, there is the fact that the representations, each of them, is against his interest. Some of them of course are more directly against the interests of his brother, but each of them is also against his interest in one way or another. That is a separate consideration, but it also adds to the reliability question, in my view.
Another point that is important, it seems to me, is that these representations are made in circumstances where they are made in part against his own interest and, yes, in part against the interest of Craig Vitale, but that Craig Vitale is his brother. That, in my view, is a significant consideration.
In saying all of that I recognise of course what is said in Sio’s case about the, if you like, presumptive unreliability — and that is my word, not theirs — of an accomplice or a co-accused, as well as the fact that, indeed, if this were a joint trial, there would be no way that the things that I am admitting now in evidence against Craig Vitale would be allowed to be admitted against him, but the law has changed and the law in the Evidence Act allows for this unusual change to occur.
The other factor that is relevant as well, is that it is not just an assertion in an interview. In fact it is a jurated [sic] statement where, as we will see when it is played to the jury shortly and shown to the jury, Wayne Vitale has made the statement understanding that, if it is false, he is subject to the penalties of perjury.
So, for those reasons and for reasons that I will explain in far more detail and hopefully far more eloquently at a later time,^[[14]] I am satisfied that the prerequisites in s 65(2)(d) have been met and that the evidence should be admitted, the extension of time should be granted and the evidence, in the confined form the parties have agreed, should be allowed to go to the jury.
[14]For reasons that it is unnecessary to explore, the judge did not deliver a more formal ruling.

The appellant was unrepresented on the appeal

I pause to note that the appellant was unrepresented on the hearing of the appeal.

At earlier stages, however, the appellant has had the benefit of legal representation. Hence, leave to appeal was granted to the appellant ‘on the papers’ based on a written case prepared by trial counsel.

Further, when his appeal initially came before the Court (Kyrou, T Forrest and Weinberg JJA) on 9 August 2019, the appellant was represented by both senior and junior counsel. The appeal was adjourned, however, when the appellant provided new information to his counsel in the course of the hearing which counsel assured the Court required investigation.

When the matter resumed on 10 October 2019, at the outset of the hearing the appellant discharged his legal representatives — senior and junior counsel, and solicitor — on the purported basis that he wished to reconsider his grounds of appeal and potentially obtain new representation. He sought an adjournment in order to do so. The Court, by a majority, decided to accede to the request for adjournment.

On 20 May 2020, the Registrar held a directions hearing. The appeal was fixed for hearing on 1 September 2020. It was indicated to the appellant that absent compelling reasons there would be no further adjournments.

Notwithstanding the firm indication that further adjournment of the appeal would not be contemplated, on 17 July 2020 the appellant wrote to the Court seeking an adjournment, suggesting that he wanted the assistance of a McKenzie friend[15] and needed the services of an interpreter. His ‘principal request’, however, was ‘based upon two debilitating medical conditions that [he had] been advised require attention’. The appellant claimed that his left eye has ‘a significant cataract which impedes [his] eyesight in a significant manner’, and that he was ‘required to undertake a CT scan in relation to a percussion head trauma condition’. These claims were not supported by any documentation from a medical practitioner or other health professional.
[15]See McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472; [1970] 3 All ER 1034.

The appellant’s letter of 17 July 2020 prompted the Court as presently constituted to entertain an oral application for an adjournment on 10 August 2020. As he had asserted in his letter, the appellant claimed that he had medical conditions that needed to be dealt with (although once more he provided no supporting material); that he wanted a McKenzie friend; and that he required an interpreter. The Court refused the appellant’s request on the basis that none of the asserted bases had substance.[16] The Court indicated that the appeal would proceed on 1 September 2020 unless exigent circumstances presented themselves.
[16]The Court refused the adjournment and refused to make a positive order that the appellant be permitted a McKenzie friend. It should be noted, however, that the Court did not prohibit the appellant from having someone assist him in the hearing room. That was an issue of prison management.

On 1 September 2020 the Court was preparing to hear the appeal by audio-visual link when we were informed that the appellant had been granted a medical certificate, purportedly excusing him from the hearing. We were also informed that the appellant had been tested for COVID-19 and was refusing to leave his cell. No supporting material was at that stage provided. Although, given the history of the matter, we harboured a deal of scepticism about what we had been told, out of an abundance of caution, and so as not be seen to be denying the appellant procedural fairness, the Court adjourned the hearing of the appeal until 10 September 2020. Later in the day, the Court was provided with a Medical Certificate on the letterhead of ‘Correct Care Australasia’, signed by a general practitioner and dated 1 September 2020. It was in the following terms:

I certify that the above name prisoner attended a Health Care appointment on 01/09/2020.
This is to certify that the above patient was seen and examined in this clinic because of cold and flu like symptoms. He was tested for CoVID19 today for PCR studies and he is currently on quarantine based on the DHHS guidelines.
He is therefore not FIT to attend on any tasks while he is on quarantine.
This letter is provided for whatever purpose this may serve.

Later still on 1 September 2020, the Registrar wrote to the appellant advising him that his appeal had been adjourned to 10 September 2020. Among other things, the letter advised the appellant as follows:

I write to inform you that in the event you seek a further adjournment of this date on medical grounds, the Court will require sworn evidence from an appropriately qualified medical practitioner who is available to answer questions and be cross-examined on any opinion to the effect that your health does not (or will not) permit you to appear and argue your appeal on 10 September.
Given the lengthy history of this matter, you should not assume that any application you make to adjourn the further hearing of your appeal will necessarily be granted. Indeed, the possibility exists that, even if you do not appear at the hearing on 10 September, the Court may decide to proceed with hearing in any event.

Upon the hearing on 10 September 2020, the appellant remained unrepresented. He appeared via audio-visual link from a room at Barwon Prison. When asked by the Court what he wanted to say in support of his appeal, the appellant asserted somewhat truculently that the Court did not ‘give a fuck about [his] circumstances’. Notwithstanding that his tone and attitude were aggressive and disrespectful, the Court asked the appellant on several occasions to stop and listen to what the Court was saying to him. It is fair to say, however, that he conducted himself in such a way as to challenge the Court’s authority, continued to interrupt and loudly talk over the Court, and proceeded to deliver a vituperative tirade, the central theme of which seemed to be that the Court was treating him unfairly. Having for a time tolerated the appellant’s invective, the Court indicated to the appellant that if he had nothing further to say in support of his case, the Court would hear from the respondent’s counsel. Regrettably, shortly after counsel commenced to address the Court, the appellant stood up from the table at which he had been seated, took down his trousers, bent over, exposed his buttocks to the camera and pulled his buttocks apart so as to expose his anus, saying: ‘You just copped a anus [sic], if you want to talk to him again, let me know’. As the respondent’s counsel remarked somewhat understatedly, this behaviour was ‘not very helpful’. Plainly, the appellant’s quite unattractive gesture was calculated to display his contempt for the proceeding. He further demonstrated that contempt shortly afterward by storming out of the room in which he had been situated. The Court then invited counsel for the respondent simply to rely on his written submissions. He did so.

Given these circumstances, the Court paid a deal of attention to the written case prepared by the appellant’s counsel, upon which leave to appeal first was granted.

The appellant’s written case

In the appellant’s written case, prepared by his trial counsel, the following arguments were advanced in support of the appeal.

Counsel submitted that in light of Wayne Vitale’s refusal to answer questions — and subsequent indication that he would maintain that position if called as a witness — it was accepted that he was ‘unavailable’ for the purposes of s 65 of the Act. Objection was taken to the admission of the relevant representations on the basis that they were not ‘made in circumstances that make it likely that the [representations are] reliable’. The trial judge, counsel submitted, was wrong to find to the contrary.

At trial, counsel had argued that there were two bases on which to conclude that the representations were not made in circumstances that made it likely that they were reliable: first, the person making the representations was an accomplice; and, secondly, the representations were made after the accomplice was played covert recordings that implicated him and the appellant in the offending.

Additionally, so counsel submitted, the question of whether the representations were ‘against the interests of the person who made [them] at the time [they were] made’ bears on the assessment of their reliability. While the overall tenor of the representations is against Wayne Vitale’s interest, they are also exculpatory. His nomination of the appellant as the co-offender, and his claim that it was the appellant who was armed with the shotgun and shot Mr Kennedy, can only be characterised as being in his interest. In this case, as in Sio, the nomination of the appellant as the gunman served to minimise Wayne Vitale’s involvement and culpability, whilst maximising the appellant’s.

Counsel submitted that the judge relied on the following in order to find that the representations were made in circumstances that made them reliable: first, the representations were corroborated by the covert recordings; secondly, the representations were to an extent supported by other evidence; thirdly, the short passage of time between the allegations being put and the representations being made (thus minimising the opportunity to fabricate); fourthly, the representations inculpated his brother; fifthly, the representations were made following legal advice; and, sixthly, the representations were contained in a sworn statement. But these matters, so counsel submitted, went to the credibility and reliability of the person making the representations, rather than the representations themselves and the objective circumstances in which they were made.

It was submitted that the reliability and credibility of Wayne Vitale was of no consequence, since he was not a witness on the trial. Accordingly, it is the circumstances of the making of the representations that must be the focus of attention, rather than evidence which supports them. The fact that the representations are supported by other evidence is a matter that solely concerns the reliability of the representation and the person making the representation, rather than the circumstances in which they were made. It is not a matter that can be considered in an assessment of the circumstances in which a representation was made.[17]
[17]Counsel cited R v Ambrosoli (2002) 55 NSWLR 603, 616 [34] (Mason P, Hulme and Simpson JJ agreeing).

As to the fraternal relationship adverted to by the judge, counsel submitted that it is apparent from his statement that Wayne Vitale did not have a close relationship with the appellant at the time the representations were made. In any event, the nature of the representations themselves suggest that it was not necessarily a relationship that would prevail over self-interest.

As to the short time between being confronted with the covert recordings and the making of the representations (which the trial judge took to contribute to their reliability), counsel contended that an analysis of the events surrounding the making of Wayne Vitale’s statement shows that he had the allegations put to him in quite some detail; was made aware that his conversation has been overheard by police; and had been told that he would be charged. There was then a break of two hours, during which Wayne Vitale informed police that he wished to make a statement. The resulting statement was signed and witnessed at 9.08 pm, almost five hours after the allegations were put to him in full. Given that he was fully aware of the allegations, and given the considerable period of time between the cessation of the interview and the finalisation of the statement, it could not be said that Wayne Vitale’s representations were spontaneous, or immediately responsive to police questioning. Since he had full knowledge of the allegations and of the extent of the information known to police, and given that he had a significant period of time to consider his position, the circumstances in which the representations were made could not be said to make it likely that they were reliable.

Further, counsel submitted, the fact that the representation was made in the form of a sworn statement is not a matter that goes to the reliability of the representation. A legal obligation on a person to tell the truth is not always effective. This is especially so where a person makes a representation (at least in part) to further the interests of the maker. The mere fact of an acknowledgment in a statement of an obligation to tell the truth does not necessarily make the person’s representation reliable.

Counsel submitted that the significance of Wayne Vitale’s admitted role as an accomplice operated to overwhelm any other factors that suggest the reliability of the representation. As the Court found in Sio, the bare fact of an accomplice making a representation inculpating an accused necessarily gives rise to a question mark as to the circumstances making the representation likely reliable. It was submitted that similar considerations apply in the appellant’s case, and that none of the objective circumstances in which the representations were made can overcome their inherent unreliability.

Moreover, counsel argued that, in the event that the prior representations of Wayne Vitale were found to satisfy the test under s 65(2)(d), the evidence should nonetheless have been excluded pursuant to s 137 of the Act, or pursuant to the trial judge’s ‘residual discretion’ to ensure a fair trial.

Counsel submitted that Wayne Vitale was not an available witness at the appellant’s committal hearing in April 2017. Hence, there was no recording of him as a witness, upon which the jury could make some assessment as to his reliability and credibility. In effect, his evidence was put before the jury without the capacity to mount any challenge. Although it was acknowledged that the trial judge gave appropriate directions to the jury concerning matters they were required to take into account in assessing the evidence of Wayne Vitale’s representations, there remained a real risk that the jury might overvalue the unchallenged evidence.

Finally, counsel submitted that the exclusion of the evidence was warranted given the inherent unreliability of the criminally concerned witness, but particularly given that the representations ‘against interest’ also served to exculpate or reduce the culpability of their maker.

The respondent’s submissions

Counsel for the respondent submitted that, upon his arrest on 24 June 2016, Wayne Vitale initially denied involvement in the offences which had occurred almost five years earlier, on 1 October 2011. After being interviewed, however, he consulted a solicitor. Having spoken to the solicitor, he then asked to once more speak to the police. He then made a statement admitting that he and the appellant were involved in the offences, and he read that statement aloud in a further recorded interview.

At the time of the appellant’s trial, Wayne Vitale was serving the sentence of imprisonment imposed on him on 24 April 2017. The prosecution initially called him on a Basha inquiry, but he refused to answer questions and so was considered to be an ‘unavailable’ witness. There then followed argument about the possible application of ss 38 and 65 of the Act, and the judge gave anticipatory rulings. As to the application of s 38, the judge ruled that, if Wayne Vitale maintained his position at trial of refusing to give evidence, s 38 would not apply. With respect to the application of s 65(2)(d), however, the judge ruled that some representations of Wayne Vitale in his statement to police on 24 June 2016 were admissible.

The representations identified by the judge, counsel submitted, included Wayne Vitale’s assertion that he and his brother were involved in the armed robbery; his description of their roles in the robbery; and his assertion that his brother was the one who held and used the gun on the two occasions that it was fired. But the judge left open the possibility of further submissions. He also left open the prospect of the parties discussing whether further parts of the statement could be admitted for context, and the possibility of the defence wishing to include other parts for a forensic purpose.

After the trial had commenced the prosecution recalled Wayne Vitale in the absence of the jury. He maintained that he would not give evidence in the trial. Following further argument, the judge gave a more detailed ruling concerning the application under s 65(2)(d). Importantly, although in his anticipatory ruling the judge had only ruled in relation to the limited sections of the statement which constituted admissions against interest (as referred to above), prior to the judge’s second ruling the parties had discussed the admission of further parts of Wayne Vitale’s statement for context or for a forensic purpose, in accordance with the judge’s suggestion in his anticipatory ruling.

Thus, counsel for the appellant conceded that Wayne Vitale was ‘unavailable’, and that the parts of the statement identified by the judge were admissions against Wayne Vitale’s interest. The only objection made — as had been argued originally — was that the circumstances were not such as to make it likely that the representations were reliable.

In ruling that the circumstances were such as to make it likely that the representations which had been identified were reliable, the judge referred to the sequence of events which led to the making of Wayne Vitale’s statement:

· On 23 June 2016, the appellant and Wayne Vitale discussed the offences and their roles in them. Their conversation was covertly recorded, via a listening device installed pursuant to a warrant.

· After his arrest the following day, 24 June 2016, while being interviewed by police, Wayne Vitale initially denied involvement.

· In the course of the interview the police revealed to him some of the covertly recorded material.

· After the interview, Wayne Vitale consulted a lawyer.

· Wayne Vitale then made a further statement to police — voluntarily and at his own instigation — admitting his and the appellant’s involvement in the offences. He read back the statement (and signed it) during a further recorded interview.

· The assertions contained in the statement were ‘entirely consistent’ with what Wayne Vitale and his brother said in the covertly recorded conversation of the previous day.

Counsel for the respondent also submitted that the judge also ruled that each of the representations made by Wayne Vitale were against his interest, albeit that some were more directly adverse to his brother’s interests. Although, by reference to s 65(2)(d)(i), this was a separate consideration, the judge was of the view this added to the issue of reliability. The trial judge also relied on the fact that the representations were made in circumstances where the appellant was his brother. Finally, the judge took into account that the assertions were made not merely in an interview with police but also in sworn statement.

The respondent’s counsel contended that the judge was well aware of the decision of the High Court in Sio and its application to circumstances in which an accomplice makes a statement against an alleged co-offender. While there would no doubt be a ‘question mark’ over the representations made by Wayne Vitale because he was an accomplice, the judge’s ruling was correct. Given the combination of the circumstances found by the judge, the conclusion that these were sufficient ‘to shift the balance in favour of a positive finding of likely reliability’ was well open.

Counsel submitted that it is now argued that the trial judge erroneously relied upon matters which supported the reliability and credibility of the person making the representations or the representations themselves, rather than the reliability of the circumstances in which the representations were made. The matters said by the appellant in the written case to be of that kind were:[18]
[18]See [38] above.

· first, the corroboration of the representations by the covert recordings;

· secondly, the fact that the representations were to an extent supported by other evidence;

· thirdly, the short time between the allegations being put and the representations being made;

· fourthly, the representations implicated his brother;

· fifthly, the representations were made following legal advice; and

· sixthly, the representations were made in a sworn statement.

As to the first and second matters, counsel submitted that these represent misconstructions of the judge’s reasons. The judge was well aware of the need to look at the circumstances in which the representations were made, rather than to look at the reliability of the person and the evidence in general. Further, the judge did not make the attributed findings. Instead, he considered the entire sequence of events. The consistency of the representations with other representations made by Wayne Vitale during the covertly recorded conversation of 23 June 2016 was merely one aspect of the sequence. It was important to have regard to what both the appellant and his brother said in order to understand the context of Wayne Vitale’s representation. The respondent’s counsel accepted that it is not proper to consider corroborating evidence for the purpose of determining admissibility under s 65(2)(d), but he contended that the judge did not do so. Counsel submitted that the judge was permitted to consider other representations made by Wayne Vitale in order to assess whether the circumstances in which the relevant representations were made met the test in s 65(2)(d).[19]
[19]Counsel for the respondent also cited R v Ambrosoli (2002) 55 NSWLR 603, 616 [34]–[36].

With respect to the third matter, the respondent’s counsel submitted that the appellant pointed to a period of almost five hours from the time the allegations were put to him to the time he finalised his statement containing the representations. But the ‘relatively short time’ to which the judge referred in the second ruling was the time between the covertly recorded conversation and the interview (during which he was alerted to the covert recording). In any event, the time from Wayne Vitale’s first interview — in which the police disclosed some of the covertly recorded evidence — to his request for legal advice and his further request to again speak to police, are all circumstances in which the representations were made. That sequence of events and the time frame — which was merely a matter of hours — readily support the notion that, having been confronted with the very strong evidence against him (and his brother), Wayne Vitale decided to ‘[get] something off his chest’. The time frame and sequence of events were therefore circumstances which made it likely that his representations were reliable.

The respondent’s counsel submitted that the fact that the appellant and Wayne Vitale were brothers was a circumstance existing at the time the representation was made which the trial judge was entitled to consider in assessing the likelihood of reliability under s 65(2)(d)(ii). Whether or not they were close, and whether the relationship was one which would necessarily prevail over Wayne Vitale’s self-interest, were not decisive. It could not be disputed that on the day before the representations were made by Wayne Vitale in his statement to police, he and the appellant had met and discussed the police’s renewed interest in the offences and how they should proceed in an endeavour to continue to evade responsibility for the crimes. They were thus acting as ‘brothers’, in an effort to deflect police attention. They also referred to each other as ‘brother’, thereby demonstrating a sufficiently close fraternal relationship to make this a matter relevant to consideration of the relevant ‘circumstances’.

Counsel submitted that the judge also was correct to rely upon the circumstance that the representations were made in a sworn statement (as opposed to mere assertion in an unsworn interview). Although the fact that a representation was made in a sworn statement will not necessarily render it reliable, the fact that the statement was sworn remains relevant to an assessment of the circumstances in which the representation was made.

With respect to the application of s 137 of the Act or the exercise of any residual discretion, counsel for the respondent submitted that three things should be noted. First, the trial judge considered the probative value of the evidence to be extremely high, describing it as being ‘through the roof’. Secondly, the appellant’s counsel at trial did not rely on any ‘residual discretion’ as a basis for exclusion (and, in any event, the admission of the evidence did not result in an unfair trial). Thirdly, any assessment for the purposes of s 137 of the Act is not made in isolation. The prosecution case against the appellant was extremely strong, so much providing the context in which an application pursuant to s 137 of the Act is to be considered.[20]
[20]Counsel cited Clarke (a Pseudonym) v The Queen [2017] VSCA 115, [21].

It was submitted finally that the covertly recorded conversation, together with the circumstantial evidence, constituted a powerful case against the appellant. The trial judge gave careful directions to the jury concerning the use of Wayne Vitale’s statement, bolstering the conclusion that there was no real risk the jury would misuse the impugned evidence.

The legislation and cases

Any consideration of the principal issue in the appellant’s case — whether a substantial miscarriage of justice resulted from admitting evidence of Wayne Vitale’s previous representations in his statement to police — must commence with the key provisions of the Act.

Part 1 of the Dictionary to the Act 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’. The hearsay rule is set out in s 59 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 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 indicated above, the prosecution relied on s 65(2)(d). So far as relevant, s 65 provides:[21]
[21]Emphasis added.

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—
…
(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.

…
(7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends—
(a) to damage the person’s reputation; or
(b) to show that the person has committed an offence for which the person has not been convicted; or
(c) to show that the person is liable in an action for damages.

It is next necessary to turn to Sio, in which the High Court gave authoritative guidance as to the proper approach to s 65(2)(d). As will be seen, there are some parallels between the facts in Sio and those of the present case.

The appellant in Sio had driven a co-offender, Richard Filihia, to a brothel. Filihia, who was armed with a knife, entered the brothel alone, intending to commit robbery. During an altercation, Filihia stabbed a brothel employee. Filihia took cash from the employee (who died from the wound), 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 his trial, the jury acquitted the appellant of murder, but convicted him of the armed robbery with wounding. One of the questions determined by the High Court concerned the admissibility of Filihia’s ERISP[22] and statements to police implicating the appellant in the armed robbery. In one of his statements to police, Filihia said that the appellant had put him up to robbing the premises, and that the appellant had given him the knife.
[22]Electronically Recorded Interview of a Suspected Person.

A principal issue in Sio was whether Filihia’s statement to police about the involvement of the appellant was made in circumstances that made it likely that it was reliable within the meaning of s 65(2)(d)(ii) of the Evidence Act 1995 (NSW). The Court (French CJ, Bell, Gageler, Keane and Gordon JJ) made it clear that:[23]

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.

[23]Sio, 65 [60].

The Court had earlier made it plain that the prosecution, in 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. Once the particular representation is identified, the circumstances in which that representation was made may then be considered to determine whether, at the time it was made, it was against the interests of the person who made it, and was made in circumstances that make it likely to be reliable. The Court said:[24]

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.

[24]Ibid [57]–[58].

Importantly, the Court deprecated a ‘compendious inquiry’ with respect to the overall reliability of the relevant hearsay statements,[25] and said:[26]

The serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge and the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.

[25]Ibid 64–5 [59].

[26]Ibid 65 [61].

Sio, as does the present case, involved representations made by an accomplice. The High Court made it clear that the evaluation of the likely reliability of each of the accomplice’s assertions must therefore be made having regard to the fact that his representations ‘were those of an accomplice in the commission of the crimes in question’,[27] and said:[28]

Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable — and the asserted fact likely to be true — notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that ‘the dangers which the rule seeks to prevent are not present or are negligible in the circumstances.[29] In such a case, ‘there is no basis for a strict application of the rule’.[30]
Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. One category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence[31] as those circumstances that ‘are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed’; in other words, circumstances that of themselves tend to negative motive and opportunity of the declarant to lie.
Evidence by an accomplice against his or her co-offender has long been recognised as less than inherently reliable precisely because of the perceived risk of falsification.[32] Statements by an accomplice afford a classic example of a case where a ‘plan of falsification’ may be expected to be formed, given the obvious interest of one co-offender to shift blame onto his or her accomplice, especially where the circumstances also include the opportunity to seek to curry favour with the authorities. That the evidence of accomplices is evidence apt to be unreliable by reason of a motive to shift blame to the co-offender is recognised by s 165(1)(d) of the Evidence Act, which expressly treats, as ‘evidence of a kind that may be unreliable’, evidence:
‘given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding’.^[[33]]

[27]Ibid 65–6 [62].

[28]Ibid 66 [63]–[65] (footnotes as in original).

[29]Walton v The Queen (1989) 166 CLR 283 at 293.

[30]Walton v The Queen (1989) 166 CLR 283 at 293.

[31]3rd ed (1940), vol 5, §1422; see also Ratten v The Queen [1972] AC 378 at 389, 391; Walton v The Queen (1989) 166 CLR 283 at 294-295, 304.

[32]Peacock v The King (1911) 13 CLR 619 at 635, 670-673; Tumahole Bereng v The King [1949] AC 253 at 265; Davies v Director of Public Prosecutions [1954] AC 378 at 391, 399; Webb v The Queen (1994) 181 CLR 41 at 93.

[33]See now ss 31 and 32 of the Jury Directions Act 2015.

This Court in Asling made it clear that the proper application of s 65(2)(d)(ii) will not inevitably lead to the exclusion of previous representations by an accomplice:[34]

The fallacy in the applicant’s submission is that all evidence given by a witness whose evidence may be unreliable is evidence given in circumstances that make it likely that it is unreliable. With respect, the applicant’s argument fails to pay proper attention to the text of s 65(2)(d)(ii) or the language of the High Court in Sio. In Sio, the High Court was at pains to emphasise that it was the circumstances in which the hearsay representation was made that were critical, rather than the mere classification of the representor into some particular category of witnesses.[35] Moreover, so far as s 31 of the Jury Directions Act is concerned, it is to be remembered that the evidence of a person who might reasonably be supposed to have been criminally concerned in the offending is defined to be evidence of a kind that may be unreliable.

[34]Asling v The Queen [2018] VSCA 132, [81] (Ferguson CJ, Beach and Ashley JJA) (citations and emphasis as in original) (‘Asling’).

[35]See Sio (2016) 259 CLR 47, 68 [70] and 69 [73].

Section 65(2)(d) of the Act, and the High Court’s decision in Sio, were both also considered in Madina, in which the Court observed:[36]

In Sio, the High Court emphasised that, when considering the admissibility of a previous representation tendered in reliance on s 65(2)(d), each material fact to be proven by a hearsay statement must be identified. It is important to focus on the precise representation upon which it is sought to rely, and to determine whether, in the circumstances in which it was made, it is likely that the particular representation was reliable. Hence, it is wrong for a trial judge to approach the issue in a ‘compendious’ manner by reference to an ‘impressionistic evaluation’ of the general reliability of the statements in issue. An approach which is focused upon the particular representation tendered to prove a particular fact in issue ‘has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials’.[37]
Historically, the exclusion of hearsay evidence appears to have been based upon a distrust of a jury’s capacity properly to evaluate it, or upon the inability to test it by cross-examination (or both). Cross-examination is the principal method by which the capacity of a witness to observe, recollect and narrate, and by which his or her honesty, credibility and reliability, can be tested.[38] Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the impugned representation was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. As the High Court observed in Sio, circumstances that have been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule include those that ‘are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed’; or in other words, circumstances that of themselves present negative motive and opportunity to lie.
[36]DPP v Madina (a Pseudonym) [2019] VSCA 73, [49]–[50] (Priest and T Forrest JJA) (‘Madina’).
[37][Footnote omitted.]
[38]J D Heydon, Cross on Evidence (11^th ed, 2017), [31020].

Discussion

In my view, the impugned evidence was properly admitted.

As I have said, the appellant’s counsel accepted that Wayne Vitale was not ‘available’ — there thus being no need to consider whether a corporeally available but obdurate witness can be said to be not ‘available’ within the meaning of the Act[39] — limiting his attack on the admissibility of the impugned evidence to the contention that the relevant representations were not made in circumstances that make it likely that they are reliable.
[39]See cl 4(1)(g) and cl 4(2) of the Act. See also Fletcher v The Queen (2015) 45 VR 634, 635–7 [3]–[14] (Priest JA).

It will be remembered that, in his ‘anticipatory ruling’, the judge expressed the view that the ‘main’ representations that ‘meet the tests in s 65(2)(d)(i) and (ii)’ included:

· Wayne Vitale’s assertion that he and his brother were involved in the armed robbery;

· the respective roles of the appellant and Wayne Vitale in the robbery; and

· the assertion that it was the appellant who held and used the gun on the two occasions that it was fired.

Significantly, apart from the representations specifically mentioned, the trial judge recognised that there ‘may be scope for other matters’ to be included, and recognised that the ‘precise parts’ of the statement of Wayne Vitale to be admitted ‘would need to be the subject of discussion’ between the parties.

In his second, more detailed ruling, the judge observed that, following the earlier ‘provisional’ ruling, ‘the parties got together and edited the statement in a way that suited both parties’. The judge said that pursuant to s 65(2)(d) he would admit ‘the substance of Wayne Vitale’s representations or assertions in his statement and in the interview … going to matters such as the involvement of him and his brother in the armed robbery and their respective roles’, including that:

· Wayne Vitale entered the shop first;

· Wayne Vitale took the alcohol;

· Wayne Vitale did not have a gun;

· the appellant was the offender who held the gun during the armed robbery and fired it; and

· the appellant was the offender who fired the gun at Mr Kennedy’s car.

As will thus be appreciated, the judge having identified generally the representations that he considered would be admissible pursuant to s 65(2)(d), prosecution and defence counsel — at the judge’s invitation — gave independent consideration to the precise material which each considered should be led. Importantly, therefore, it will also be appreciated that the representations contained in Wayne Vitale’s statement were put before the jury in the form set out above[40] as a result of agreement reached between the prosecution and defence.
[40]At [16].

In finding the identified representations to be admissible, the trial judge recognised that the ‘test’ under s 65(2)(d) meant that a given representation could only be admitted into evidence if it was ‘made in circumstances that make it likely that the representation is reliable’. The judge was also cognisant of the fact that ‘it is not a question of looking at the reliability per se of the individual who is giving the evidence’, or of the evidence in general, but rather ‘the circumstances in which the representations were made’. Moreover, the judge also appears to have had uppermost in his mind what he termed the ‘presumptive unreliability’ of an accomplice’s representations, discussed in Sio.

Looking at the judge’s remarks in context, it seems clear enough that he was alive to the necessity to avoid taking a ‘compendious’ approach to the pertinent representations. That said, it may be observed that, viewed globally, each representation identified by the judge as being admissible under s 65(2)(d) went to establish two central facts in issue: first, the fact of the appellant’s participation in the armed robbery and the shooting of Mr Kennedy; and, secondly, the form that the appellant’s participation took. Thus, the judge generally limited the admissible representations to the identity of the individual who first entered the bottle shop; the individual who had the gun; the individual who fired the gun at the cash register; and the individual who shot Mr Kennedy. Those parts of Wayne Vitale’s statement that went beyond those core representations were admitted upon the agreement of the appellant’s counsel, presumably for sound forensic reasons.

The judge recognised that, since the relevant representations were against Wayne Vitale’s interests at the time that they were made, the first limb of s 65(2)(d) was engaged. Thus, he observed that although some of them ‘are more directly against the interests of his brother’, each ‘is also against his interest in one way or another’. I consider that the judge was correct to find that the representations fell within s 65(2)(d)(i). There is nothing in the terms of s 65(2), or in any other provisions of the Act, which would dictate that a representation ceased to be ‘against the interests of the person who made it at the time it was made’ simply because it was also against the interests of a co-offender.[41] If it were otherwise, most (if not all) hearsay statements made by a party to a joint criminal enterprise which implicated both himself (or herself) and an accomplice in a jointly committed offence would ipso facto be inadmissible. In that regard, it will be remembered that in Sio, Filihia’s statements implicated both himself and Sio in the armed robbery (with wounding) of the brothel, but were not said by the High Court on that count alone to be inadmissible.
[41]See, in another context, Nguyen v The Queen (2020) 380 ALR 193; Spence v Demasi (1988) 48 SASR 536, 540.

As did the trial judge, I consider the sequence of events leading up to the making of Wayne Vitale’s statement to be important. Hence, it is apparent that, when first interviewed by police, Wayne Vitale was prepared to be firm in maintaining his earlier denials and was resolved to ‘brave it out’. But it is also apparent, in my view, that when confronted with the undeniable and objective evidence of his covertly recorded conversations with his brother — which were not open to any interpretation other than that he and his brother were discussing their joint participation in the armed robbery of the bottle-shop and shooting of Mr Kennedy — Wayne Vitale must have realised that the ‘jig was up’, and that further denials would be somewhat futile.

I also regard the fact that Wayne Vitale spoke to a lawyer before making his statement was important to any consideration of the circumstances in which he made the impugned representations. Although the details of his conversation with the lawyer were not revealed in evidence, it might be expected that, following that consultation, Wayne Vitale would have been cognisant of the fact that he would benefit materially from making full and frank disclosures to police, and from co-operating with them in their investigation. Very significantly, it is likely that, since he must have realised that the information that he imparted (or, at least, a major part of it) was objectively verifiable through CCTV footage and covert recordings, it would be pointless to try and proffer a false account. Indeed, it is very likely that he would have anticipated that a false or inaccurate account would redound to his prejudice.

Furthermore, in my view, the fact that by his statement Wayne Vitale was implicating his brother is, as the trial judge thought, also significant. Although it is not unheard of for brother to betray brother,[42] it is common human experience that brothers generally are reluctant to implicate one another in the commission of crime. That, so it seems to me, is what the trial judge had in mind when he observed that it is ‘a significant consideration’ that Wayne Vitale’s representations were made in part against the interest of his brother (albeit that the judge did not say so with the clarity that might have been desirable). Whether or not Wayne Vitale and the appellant were particularly close — the covert recordings seem to betray a cordial relationship — it remains an instinctive human impulse to be hesitant to inform on family. Resorting to an overworked apophthegm, ‘blood is thicker than water’. That Wayne Vitale would have had to have overcome an instinctive disinclination to implicate his brother is, I consider, a circumstance which bears on the likelihood of his representations being reliable.
[42]Genesis, 4: 1–18.

I also regard the fact that the relevant representations were contained in a sworn statement to be another circumstance that bears on the likelihood that they were reliable. Wayne Vitale’s understanding that he could be prosecuted for perjury should he knowingly give a false version of events no doubt would have provided a strong inducement for him to give a truthful account, particularly in circumstances in which he was well aware that the police were in possession of CCTV footage and covert recordings which had the potential to unravel any untruthful narrative. Acknowledging that there are individuals who will lie no matter the possibility of being prosecuted for perjury, it must also be acknowledged that the threat of perjury can be a strong incentive to provide a truthful account (particularly when that account is capable of being verified objectively).

As I have indicated, the judge was acutely aware that the representations that the prosecution sought to have admitted against the appellant were those of an accomplice. By his reference to ‘presumptive unreliability’ the judge acknowledged that statements by accomplices against co-offenders have long been recognised as being potentially unreliable because of the well-known risk of falsification. Experience over many years has shown that accomplices often try to shift blame — and falsify an account to do so — in order to gain an advantage. It is this motive to shift blame that is apt to render accomplices’ statements against co-offenders unreliable. That Wayne Vitale made the impugned representations in a sworn statement against his brother, after being confronted with objective evidence of his involvement in the offending, and following consultation with a lawyer, were all circumstances that rendered more likely that the representations were reliable than might ordinarily have been the case. Given the objective evidence in the hands of the police, including the CCTV footage (the contents of which largely spoke for themselves) and the covert recordings (which unequivocally demonstrated his participation in the offending), there was limited scope for Wayne Vitale to falsify an account, save in somewhat limited respects.

Finally, the appellant’s reliance on s 137 of the Act is without substance. The representations in Wayne Vitale’s statement were highly probative of facts in issue — the fact of the appellant’s participation in the offending, and his role in it — the probative value of that evidence not being outweighed by the risk of unfair prejudice. So far as s 137 is concerned, it is noteworthy that, although other sections of the Act assign a quality to the probative value contemplated by the particular provision,[43] s 137 merely requires the probative value of the evidence to be weighed against the danger of unfair prejudice to an accused. When weighing probative value against the danger of unfair prejudice, however, s 137 requires that the evidence be taken at its highest so far as the effect it could have on the assessment of the probability of the existence of the facts in issue.[44] No element of discretion accompanies the judicial exercise for which s 137 provides.[45] Section 137 ‘is expressed in terms of an evaluative judgment mandating exclusion’.[46] A trial judge therefore must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused. Evidence will be unfairly prejudicial if there exists a real risk that it will be misused by the jury.
[43]For example, ss 97 and 98, which require tendency and coincidence evidence to have ‘significant’ probative value.
[44]IMM v The Queen (2016) 257 CLR 300, 314 [47] (‘IMM’).
[45]DPP vWise (a Pseudonym) [2016] VSCA 173, [50].
[46]IMM, 306 [16].

In my view, as I have said, the probative value of the evidence was high. On the other hand, the risk of unfair prejudice — through the jury’s misuse of the evidence — was low. The judge gave detailed directions — none of which were criticised — designed to ameliorate any risk that the jury would misuse the evidence. Section 137 could not have led to the exclusion of Wayne Vitale’s representations.

It is noteworthy that, when invoking s 137, counsel for the appellant did not seek to rely on the inability to cross-examine Wayne Vitale as a factor supporting exclusion of the representations. As was observed in Sio,[47] it is ‘no light thing to admit a hearsay statement inculpating an accused, since, 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’. Acknowledging that there may be cases in which the inability to cross-examine will be determinative of an application to exclude evidence under s 137, this is not such a case. The appellant’s counsel eschewed reliance upon it. One can imagine sound forensic reasons why he did so.
[47]Sio, 65 [60].

If there remains at common law a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial,[48] there was nothing in the present case which properly could have animated the exercise of that discretion. Nothing in the circumstances in which the evidence was obtained, or in the manner in which it was sought to be used by the prosecution, could have rendered its admission unfair to the fair trial of the appellant. Indeed, the manner in which the investigators obtained the impugned evidence was entirely legitimate, and its use in the trial was orthodox.
[48]The continued existence of such a discretion was acknowledged in Haddara v The Queen (2014) 43 VR 53 (Redlich and Weinberg JJA, Priest JA dissenting).

Conclusion

In light of the foregoing, the appeal must be dismissed.

BEACH JA:

I agree.

T FORREST JA:

I also agree.

----

[2020] VSCA 237

14 September 2020