Crawford (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0095

MARIE CRAWFORD (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, these reasons for judgment have been anonymised by the adoption of pseudonyms in place of certain names.

---

JUDGES:	PRIEST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2023
DATE OF JUDGMENT:	3 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 173
JUDGMENT APPEALED FROM:	DPP v [Marie Crawford] (County Court of Victoria, Judge O’Connell, 26 April 2023)

---

CRIMINAL LAW – Interlocutory appeal – Indictment containing ten charges of theft – Application by prosecution to adduce hearsay representations – Where trial judge found representations were hearsay but admissible pursuant to Evidence Act 2008, s 66A – Whether representations are hearsay – Whether danger of unfair prejudice outweighs probative value – Evidence Act 2008, ss 59, 60, 65, 66A, 137 – Leave to appeal granted – Appeal dismissed.

---

Counsel
Applicant:		Mr A Palmer SC and Mr D Mence
Respondent:		Mr JCJ McWilliams and Mr ES Dober
Solicitors
Applicant:	Garde Wilson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KENNEDY JA:

Introduction

The applicant applies for an extension of time[2] in which to seek leave to appeal the interlocutory decision of a judge to admit three ‘hearsay’ representations (‘the three representations’).[3]
[2]The respondent accepted that the notice was filed five days out of time.
[3]DPP v [Marie Crawford] (County Court of Victoria, Judge O’Connell, 26 April 2023) (‘Hearsay Ruling’).
The applicant is charged with 10 counts of theft. Relevant to this application, it is alleged that, between July 2018 and March 2021, the applicant paid herself $118,856.55 in unauthorised commissions from her employer, XYZ (the ‘Company’).
By a Notice filed pursuant to s 67 of the Evidence Act 2008 (the ‘Act’) (‘Hearsay Notice’), the respondent gave notice that he intended to adduce hearsay evidence in the form of six representations (‘R1–R6’). These representations were allegedly made by the Company’s managing director, Mr A (who is now deceased). Only the three representations are the subject of this appeal,[4] and are set out below.
[4]The judge held that representations 4 and 6 were inadmissible: Hearsay Ruling, [68]–[69], [85]. Representation 5 was admitted by the judge but is not the subject of this appeal: Hearsay Ruling, [88].
The judge ultimately determined that the three representations were admissible pursuant to s 66A of the Act, but not ss 65(2)(b) or 65(2)(c).[5] The judge refused an application to exclude the three representations pursuant to s 137.
[5]Hearsay Ruling, [79], [101].
The applicant seeks leave to appeal on the following proposed grounds:
Ground 1. The judge erred in ruling that the hearsay evidence was admissible as a contemporaneous representation about the deceased’s knowledge under s 66A of the Act.
Ground 2. The judge erred in finding that the probative value of the evidence outweighed the danger of unfair prejudice to the applicant under s 137 of the Act.
We consider that the judge was ultimately correct to admit the three representations, although our reasons differ to those given by the judge. In such circumstances, an extension of time will be granted and we will grant leave to appeal, but the appeal must be dismissed.

Background

The Company was established by Mr A to manufacture a product for tyre inflation of heavy vehicles. It traded both locally and internationally.
The applicant was initially employed by the Company as a casual employee working one or two days a month. Her duties included paying invoices, preparing business activity statements and performing basic office and accounting tasks. Over time her hours increased such that she eventually worked daily and her tasks included office administration, invoicing, banking, paying wages and answering the office telephone. There was no written contract of employment for the applicant. As of 2018, she was paid between $54,000 and $58,000 per year, which was said to be a standard wage for a bookkeeper in her role.
In the period 2018–2021, Mr B, who was employed as the Company’s sales manager, received a commission of 3 per cent on all monthly domestic sales. The respondent’s case is that no other employee (including the applicant) was entitled to receive any sales commissions, and that no commissions were payable at all in respect of international sales.
In late February 2021, Mr A discovered that the applicant had been paying herself commissions. He and his wife, Mrs A (who also worked for the Company), confronted the applicant about this in March 2021, and the applicant was dismissed. The respondent alleges that the applicant had also paid herself unauthorised rental allowances (from 2016).
By her Defence Response on 24 February 2023, the applicant says that Mr A authorised the payments.

Hearsay Notice

The respondent now seeks to rely on alleged representations Mr A made in 2018 in the presence of the applicant. In the Hearsay Notice, the respondent set out six hearsay representations and indicated that he intended to rely on ss 65(2)(b) and 65(2)(c) of the Act as the relevant exceptions to the rule against hearsay. In the summary of amended prosecution submissions for pre-trial argument, the respondent also identified reliance on s 66A.
In circumstances where Mr A has died (and is hence ‘unavailable’),[6] the respondent relied upon a statement Mrs A gave to police on 16 June 2021, which relevantly included the following:
5.In 2018, I’m not sure of the exact date [the applicant] came into mine and [Mr A’s] office and stated that she wanted to start taking a commission from sales. [Mr A] asked her why she would be entitled to one, [‘R1’] [the applicant] replied that our salesman [Mr B] was taking a commission from sales. [Mr A] explained to her that [Mr B] took a commission because he was involved in the sales of [the Company] products and would develop contacts, take calls at all hours of the night from customers amongst a lot of other responsibilities. [‘R2’] [Mr A] asked [the applicant] to send him an email about it so he can have a look [‘R3’] but I know she never sent anything about it. …[7]
[6]For the purposes of the Act, a person is taken not to be available to give evidence about a fact if the person is dead: The Act, Dictionary pt 2 cl 4(1)(a).
[7]Emphasis added.
The three representations the subject of this application are therefore:
(a)R1: [Mr A] asked [the applicant] why she would be entitled to a commission from sales.
(b)R2: [Mr A] said that the salesman [Mr B] was entitled to commissions because he was involved in sales of [the Company] products.
(c)R3: [Mr A] told [the applicant] she could send an email proposal to him to consider.

Submissions to the trial judge concerning Hearsay Notice

Respondent’s submissions

The respondent’s written submissions contended that the three representations were admissible for a non‑hearsay purpose. The respondent submitted that they were sought to be adduced to allow the jury to rely upon what Mr A said to the applicant to draw a number of rational inferences including that:
(a)The applicant was not entitled to payment of a commission prior to that meeting with Mr and Mrs A (otherwise she would not have arranged the meeting);
(b)That Mr A knew that the applicant’s role in the business did not involve sales;
(c)That at the time of the meeting, Mr A was of the view that only Mr B was entitled to payment of a commission as he was the only person employed as a salesperson who would develop contacts, and take calls at all hours of the night and day from customers, as well as having a lot of other responsibilities; and
(d)That Mr A did not approve the applicant’s request to be paid a commission during the course of the meeting, but rather he invited her to send him an email so that he could consider her request.
In the alternative, the respondent submitted that the three representations were admissible under the statutory exceptions contained in ss 65(2)(b) and 65(2)(c). The respondent further contended that the s 66A hearsay exception applies.

Applicant’s submissions

The applicant opposed the admission of the three representations. She submitted that the representations are very significant items of evidence as they imply, if not expressly assert, that the applicant was not authorised to receive commissions.
The applicant submitted that there was no basis on which to admit the representations for a non-hearsay purpose, and opposed admission of the three representations under s 66A. The applicant contended that s 66A must be construed narrowly to avoid abrogating the hearsay rule, and submitted that the respondent had effectively invited the Court to infer from Mr A’s state of mind that the ‘asserted fact’ is true and correct (i.e. that she was not authorised). In respect of ss 65(2)(b) and 65(2)(c), the applicant contended that the respondent had not discharged his onus in identifying the relevant ‘circumstances’ in which the representations were made. She highlighted that Mrs A’s statement was made years after the making of the alleged representations. In the alternative, the applicant submitted that the evidence ought to be excluded under s 137 of the Act because the danger of unfair prejudice outweighed the probative value of the evidence.

Reasons

The judge commenced by finding that the evidence was relevant and prima facie admissible,[8] save as otherwise provided in Part 3.2 dealing with hearsay. He considered that each of the representations ‘essentially assert’ that the applicant was not authorised to receive the payments, or are explanatory of why she was not authorised to receive those payments.[9]
[8]Pursuant to the Act, ss 55 and 56.
[9]Hearsay Ruling, [33].
After carefully setting out the relevant provisions, the judge recorded that there was no dispute that the representations were caught by the hearsay rule in s 59, and that the representations were ‘first hand’ in that Mr A had personal knowledge of the facts asserted.[10] The judge emphasised that a previous representation may be implied. He considered that R1, Mr A’s question to the applicant asking why would she be entitled to one (a commission), impliedly asserts that she is not currently (i.e. at the time of the representation in 2018) authorised to receive a commission.[11] He also considered that R3, the request to email a proposal, was ‘part of the representations that imply the asserted fact that the applicant was not entitled to a commission.’[12] The judge described R2 as ‘in part, explanatory of the fact asserted in Representation 1, as well as, forming part of a related series of representations that assert the fact that [the applicant] was not authorised to receive commissions.’[13]
[10]Ibid [35]–[39].
[11]Ibid [40].
[12]Ibid [64].
[13]Ibid [98].
The judge then considered whether the representations were admissible for a non‑hearsay purpose under s 60, but did not consider that they should be admitted for any of the non-hearsay purposes suggested by the respondent.[14]
[14]Ibid [44]–[48].
The judge then turned to consider the respondent’s contentions that the statutory exceptions to the hearsay rule justify admission under ss 65(2)(b) and 65(2)(c).
Thus, s 65 of the Act relevantly 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—
…
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; …
After citing relevant authority, including the decision of the High Court in Sio v The Queen,[15] the judge turned to the circumstances surrounding the making of the representations. He cited Mrs A’s statement of 16 June 2021.[16] He also referred to two statements made by Mr A before he passed away.[17] The judge recorded that Mr A had stated the following (in his statement of 16 September 2021):
7.I remember [the applicant] asked me about taking a commission from [the Company] around 2–3 times. I remember on one of the times she asked for a 1.5% commission on sales. I told her there was no way that she was getting a commission as she wasn’t in our sales or marketing area. Our salesman [Mr B] was on a 1.5% commission but on far less hourly rate around $20 per hour, he is the only person allowed to take a commission in [the Company].
8.I don’t remember much about the conversations relating to her asking for a commission as I refused her requests straight away. It was essentially her asking me for a commission and me giving her a straight no.[18]
[15]Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32; ibid [52]–[55].
[16]Hearing Ruling, [56].
[17]Ibid [57]–[58].
[18]Emphasis added.
Counsel for the applicant had sought to contextualise the making of the representations by reference to the evidence at committal. Some of this evidence went to the credibility and reliability of Mrs A as a witness but the judge did not consider that analysis under ss 65(2)(b) and 65(2)(c) involves an assessment of Mrs A’s potential credibility or reliability as a witness.[19]
[19]Hearing Ruling, [59]–[60].
The judge did not consider that there was any difficulty with the temporal requirement under s 65(2)(b) (that the representation was made ‘when or shortly after’ the occurrence of the asserted fact).[20] He considered that the implied asserted fact that the applicant was not entitled to, or in receipt, of a commission was a ‘continuing state of affairs’ that existed at the moment the fact was asserted.[21]
[20]Ibid [62]–[64], [67].
[21]Ibid [62].
However, the judge cited Mr A’s police statement, above, wherein he said that he ‘refused’ the applicant’s requests straight away, giving her a ‘straight no’.[22] He contrasted this version with the three representations which do not assert a ‘straight no’, but that the applicant was told to email a proposal as to why she should receive commissions.[23] This left ‘open the possibility that a proposal was to be considered that may result in authorisation.’ Although the essential fact that the payments were not authorised remained consistent, there was thereby a ‘significant difference.’[24]
[22]Ibid [74].
[23]Ibid [75].
[24]Ibid [77].
The judge concluded that Mr A’s police statement cast some doubt on the accuracy of the three representations, such that they did not satisfy ss 65(2)(b) and 65(2)(c).[25]
[25]Ibid [78].
The judge next turned to s 66A of the Act, which reads:
Exception—contemporaneous statements about a person’s health etc.
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
He considered that the representations were ‘contemporaneous’ as he considered that the asserted fact related to whether the applicant was authorised at the time of the representation.[26] He also considered that the representations were concerned with Mr A’s knowledge of the applicant’s lack of entitlement to commission, and that they appeared to be contemporaneous representations of his state of knowledge about that matter.[27]
[26]Ibid [95].
[27]Ibid [96].
Ultimately, the judge held that the three representations were admissible pursuant to s 66A,[28] making the following findings:
97In respect of Representation 1 — Why would you be entitled to a commission? — [Mr A] appears to have made a contemporaneous representation implying that he knows she is not, at that time, entitled to a commission. It is a matter, by reason of his position as the owner of the company, he knows. It is not presented as a belief. It is not something that is recounted or narrated from memory. In my view it is not according the provision too much scope to conclude that this representation comes within its terms.
98Representation 2 — relating to the reasons why [Mr B] receives a commission — likewise, appears to be a representation as to [Mr A’s] state of knowledge of that matter, at that time. This representation is, in part, explanatory of the fact asserted in Representation 1, as well as, forming part of a related series of representations that assert the fact that [the applicant] was not authorised to receive commissions.
99Representation 3 — [the applicant] could send an email proposal for him to consider — is a representation that [Mr A] intends to consider [the applicant’s] request further. It is a contemporaneous representation of his intention and also forms part of the series of representations which assert and explain the fact that [the applicant] was not authorised to receive commissions at that time. In that respect it is bound up with Representations 1 and 2.[29]
[28]Ibid [101].
[29]Ibid [97]–[99] (emphasis in original).
Finally, the judge considered whether the representations should be excluded under s 137 of the Act. The judge considered that the probative value of the representations was high, as each of the representations bear heavily on what might be said to be the ultimate issue at trial, that is, whether the payments were authorised. He considered this was particularly so because there is not much, if any, other admissible evidence tending to establish that fact.[30]
[30]Ibid [106].
On the other hand, the judge cautioned that it is no light thing to admit hearsay evidence of this kind. Doing so would mean that the applicant would not have the opportunity to cross-examine.[31] The applicant would also not be able to challenge the representator as to his claim that he did not know she was authorised to receive the payments. The judge considered that this constituted ‘a very real danger of unfair prejudice given the importance of the evidence.’[32]
[31]Sio v The Queen (2016) 259 CLR 47, 65 [60] (The Court); [2016] HCA 32.
[32]Hearsay Ruling, [107].
Ultimately, the judge considered that there were two factors which ameliorated this danger:
(a)Each representation was made in the presence of the applicant. While the maker of the representations (Mr A) cannot be cross-examined, the recipient of those representations (Mrs A) can. The applicant can provide meaningful instructions for the purpose of that cross-examination. The judge contrasted the circumstances to one where hearsay representations are made in the absence of an accused, such that the danger of unfair prejudice may be more acute.[33]
(b)A specific direction to the jury can limit the danger of unfair prejudice. It will be open to the defence at the end of the trial to seek an unreliable evidence direction grounded in s 31(a) of the Jury Directions Act 2015 which includes hearsay evidence in its definition of ‘evidence of a kind that may be unreliable’. The jury could also be alerted to other weaknesses such as imperfect perception, memory or lack of sincerity.[34]
[33]Ibid [108]–[111].
[34]Ibid [108], [112]–[114].
Ultimately, the judge found that the combination of these factors sufficiently ameliorated the danger of unfair prejudice posed by the three representations, such that the three representations were admissible.[35]
[35]Ibid [115].

Proposed ground 1: Submissions in this Court

Applicant’s submissions

In written submissions, the applicant focused on s 66A. She emphasised that the precursor to s 66A was not based on a recommendation of the Australian Law Reform Commission (‘ALRC’) and cited various concerns raised by the ALRC.
The applicant further submitted that at common law, representations about a person’s knowledge or belief in an asserted fact were admissible if the person’s knowledge or belief was a fact in issue, or was relevant to a fact in issue, but they were not admissible to prove the asserted fact.[36]
[36]Citing Thomas v Connell (1838) 4 M & W 267; 150 ER 1429, 1430; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 137 (Barwick CJ), 149 (Gibbs J) and 159 (Murphy J); [1979] HCA 2; Kamleh v The Queen (2005) 79 ALJR 541, 545 [14]–[16] (Gleeson CJ and McHugh J); [1996] HCA 14; R v Matthews (1990) 58 SASR 19, 23.
The applicant submitted that in this case, Mr A’s state of mind (including his knowledge) is not in issue, nor is it relevant to a fact in issue. The fact in issue is whether the applicant was authorised to receive the payments that are the subject of the charge. The applicant submitted that whether she was authorised did not depend on Mr A’s state of mind or knowledge.
The applicant submitted that Mr A’s ‘knowledge’ of the asserted fact was only relevant to prove the asserted fact, that is, that the applicant was not authorised. She submitted that interpreting s 66A in this way risks the ‘absurdity’ (raised by the ALRC) of rendering contemporaneous statements exempt from the hearsay rule.[37]
[37]Citing Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) [8.162]–[8.163]. The risk was noted by the judge: Hearsay Ruling, [94].
In oral submissions Counsel addressed whether the three representations were hearsay. Further, whether ss 65(2)(b), 65(2)(c) and/or s 66A applied (as the judge found).
Counsel maintained that the three representations were hearsay (as referred to below).
Counsel also submitted that s 66A was inapplicable in circumstances where there was no independent evidence of the alleged knowledge.
Counsel submitted that s 65(2)(b) was focused on circumstances where there was a close temporal connection between the representation and the asserted fact such that fabrication was unlikely. There was no such close connection in this case.[38]
[38]Citing Huici v The King [2023] VSCA 5, 61 (Niall and T Forrest JJA).
Counsel further submitted that the high threshold in s 65(2)(c) (‘highly probable’) was not satisfied. First, he highlighted the inconsistency in Mr A’s evidence as relied upon by the judge. Secondly, he highlighted that the owner had subsequently ‘signed off’ on business records which disclosed the payment of commissions. Counsel submitted that such subsequent conduct was relevant to an assessment under s 65(2)(c).[39]

Respondent’s submissions

[39]Citing DPP v Asling (Ruling No 2) [2017] VSC 38, 22 (Kaye JA).

The respondent submitted that the judge correctly admitted the three representations under s 66A of the Act, each being a contemporaneous statement about Mr A’s knowledge at the time. The respondent submitted that each representation supports the proposition that Mr A (who would be expected to know about a commission), did not know that the applicant was entitled to a commission. This was properly contrasted by the judge to a representator who merely believes (rather than knows) something.
The respondent submitted that Mr A’s knowledge is relevant to whether the applicant was authorised to receive payments, as Mr A (as sole owner of the Company and the applicant’s manager) is the only person who would have given that authorisation.
The respondent submitted (as an alternative) that the three representations were not captured by the hearsay rule at all given that the rule applies only to intended assertions. The respondent contended that Mr A did not intentionally assert any fact in R1. In relation to R2 and R3, the respondent accepted that Mr A did intend to assert a fact, being ‘why’ a different employee was entitled to a commission (R2) and that the applicant could send him an email proposal to consider (R3). The respondent submitted that neither of the asserted facts are the facts that he seeks to prove by admission of the representations.
In oral submissions Counsel clarified that, consistent with the position before the judge, the Crown maintained reliance on ss 65(2)(b) and 65(2)(c) (if the three representations were in fact hearsay).
In relation to s 65(2)(b), Counsel emphasised that the representations should be assessed in a context wherein there was a continuing state of non-entitlement to a commission. In such circumstances, the representation was made ‘shortly after’ this state of non‑entitlement occurred, when there was nothing to suggest that Mr A would be lying.
In relation to s 65(2)(c), Counsel submitted that it was highly probable that the representations were reliable. He highlighted that the representation occurred in a professional meeting in the presence of the applicant employee. He contended that the later witness statement was not inconsistent with the representations made. Given no proposal was ever forthcoming Mr A had ‘essentially’ refused the applicant’s requests in circumstances where there appeared to be a number of meetings. It was also inappropriate to focus on Mr A’s subsequent conduct (in approving business records) given the focus was on the circumstances in existence at the time the representations were made.

Proposed ground 2: Submissions in this Court

Applicant’s submissions

The applicant submitted that the judge’s assessment of the probative value of the representations as ‘high’ was at odds with his earlier ruling (that the representations were not made in circumstances that made them unlikely to be a fabrication nor in circumstances that make it highly probable they were reliable).
The applicant submitted that the judge misdirected himself in relation to the first ameliorating factor, being that the applicant was present such that she could provide ‘meaningful instructions’ for cross-examining Mrs A. The applicant submitted that she is not in a position to be able to identify the occasion on which the alleged representations were made (which she says were fabricated), to know whether or not she was present on that occasion.
In oral submissions Counsel did not abandon this ground, but only faintly pressed it.

Respondent’s submissions

The respondent submitted that it was reasonably open for the judge to balance the factors under s 137 in favour of admitting the evidence. The respondent submitted that the three representations are highly probative to the central issue at trial (entitlement to a commission). Further, it would be impermissible to consider questions of reliability while assessing probative value under s 137.
The respondent acknowledged that there is prejudice in that the applicant will not be able to cross‑examine the maker of the representation, but submitted that this alone is unlikely to amount to unfair prejudice in circumstances where the representations were made in the presence of both the applicant and an available prosecution witness (Mrs A). It was submitted that the evidence is not otherwise unfairly prejudicial.

Consideration

Proposed ground 1

It is critical to determine the threshold issue as to whether the three representations constituted hearsay evidence. In doing this, it is necessary to consider what, if anything, it can ‘reasonably be supposed’ that Mr A intended to assert by each of the representations, having regard to the circumstances in which the representations were made.[40]
[40]The Act, s 59.
The circumstances in this case include:
•that the meeting (at which the representations were made) was instigated by the applicant during 2018;
•that the applicant indicated that she wanted to ‘start’ taking a commission from sales;
•that the applicant was ultimately invited to send ‘an email about [taking a commission]’ which Mr A would ‘look’ at;
•that the respondent’s case is that no email was ever sent; and
•that the respondent alleges that unauthorised commissions commenced from July 2018.
Thus, the key feature of this particular 2018 conversation was that, in response to the applicant’s request for commission, she was invited to write an email for Mr A to ‘look’ at. Given it is also alleged that she never sent an email, the meeting is relevant to whether she was in fact ever authorised (as she maintains).
Turning then to R1 (Mr A asked the applicant why she would be entitled to a commission), two matters are significant. First, the representation is not framed as an assertion at all, but as a question. Secondly, it is responsive to the applicant’s own statement that she wanted to ‘start’ taking commissions.
In oral submissions Counsel for the applicant submitted that, although R1 was framed as a question, it should be read with R2 such that, when they are considered together, there was as an implied[41] asserted fact that the applicant was not entitled to a commission. However, we do not accept that it can reasonably be supposed that, in asking the applicant why she would be entitled to a commission, Mr A intended to assert anything. He certainly did not intend to assert that the applicant was not entitled to a commission in circumstances where the entire conversation was already premised on the fact that the applicant was not (yet) entitled to a commission, but wanted to ‘start’ taking one.
[41]Note the Act defines a ‘representation’ to include an implied representation: Dictionary pt 1 (cl (a) of definition of ‘representation’).
In relation to R2, the applicant submitted that this amounted to a representation that, while the salesman was entitled to a commission, the applicant was not so authorised. However, again, the premise of the meeting was that the applicant was not already entitled to a commission. Further, it was the applicant herself who stated that the salesman was taking a commission — not Mr A. Insofar as Mr A was asserting anything, it can reasonably be supposed that he was providing the applicant with the reasons why the salesman was entitled to a commission. The respondent, however, does not rely on the truth of these reasons, but rather the fact that they were given to the applicant (which she might then address in her email).
Finally, it cannot be said that, by R3, Mr A was intending to assert that the applicant was not authorised to take commissions.[42] To the contrary, by inviting the applicant to send an email, we agree with the judge that Mr A was leaving ‘open’ the possibility that a proposal was to be considered that might result in an authorisation. In reality, R3 was relevant by reason of the fact that the invitation was proferred, rather than for proof of any asserted fact.
[42]The applicant’s counsel appeared to initially concede this (although he said R3 was irrelevant), but later sought to withdraw this concession in reply.
We are therefore of the view that the three representations did not constitute hearsay evidence.
It is unnecessary in those circumstances to consider whether the statutory exceptions apply but, having read the submissions of the parties, we would make two observations.
First, we respectfully differ with the judge about the application of s 66A. We do not consider that s 66A has any application in this case where the critical issue is authorisation (and not the owner’s subjective beliefs about that authorisation).
Secondly, notwithstanding the onerous requirement in s 65(2)(c) (that it is ‘highly probable’ that the representation is reliable), there is considerable force in the submission that the exception would apply if the three representations did constitute hearsay evidence. Thus, if there was an implied representation that the applicant was not entitled to a commission, there would not be such a ‘significant difference’ between the representations made and Mr A’s statements to police (that he refused commissions) as concerned the judge.[43] The subsequent execution of financial records incorporating commission payments is also not determinative. Although the relevant ‘circumstances’ in s 65(2)(c) may include subsequent statements or conduct, the true concern of the provision is directed to the objective circumstances in which the representations were made.[44] Those objective circumstances in this case include that the representations: were made by the owner of a small business; related to employee entitlements; and were made in the presence of the relevant employee. There was also other evidence which supported the rationale for the different treatment of the salesman (the subject of R2).
[43]Hearsay Ruling, [77].
[44]Sio v The Queen (2016) 259 CLR 47, 67–8 [69]–[71] (The Court); [2016] HCA 32; DPP v Asling (Ruling No 2) [2017] VSC 38, 22 (Kaye JA).
It is unnecessary, however, to consider the statutory exceptions further. For reasons given above, the three representations are admissible and, subject to s 137, the judge was correct to admit them.
Proposed ground 2
There is no merit in this ground. For reasons given already, the three representations are probative of whether the applicant was really authorised to take commissions. Although the applicant will not be able to cross-examine Mr A, she will be able to provide meaningful instructions to cross‑examine Mrs A in circumstances where she was present at the time the representations were made. It must also be assumed that the jury will follow judicial directions as to the permissible use of the evidence.
In such circumstances, it was both open, and appropriate, for the judge to refuse the application under s 137 of the Act.
Conclusion
Although the respondent opposed the application for an extension of time, the application was not without merit, such that we will extend time and grant leave to appeal. However, the appeal will be dismissed.

---

[2023] VSCA 173

3 August 2023