Director of Public Prosecutions v Kerry (a pseudonym) (No 6)
[2023] ACTSC 60
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Kerry (a pseudonym) (No 6) |
Citation: | [2023] ACTSC 60 |
Hearing Date: | 28 – 29 November 2022 |
DecisionDate: | 29 November 2022 |
Reasons Date: | 24 March 2023 |
Before: | Loukas-Karlsson ACJ |
Decision: | See [32] |
Catchwords: | EVIDENCE – hearsay – where maker not available – application for leave to appeal pre-trial ruling – leave granted under s 76 Court Procedures Act – s 65 Evidence Act – admissibility of evidence in chief interview – access to documents during interview – whether representations made in circumstances that made it highly probable that the representation is reliable – onerous standard not met – evidence in chief interview not admissible |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 76 |
Cases Cited: | Conway v The Queen [2000] FCA 461; 98 FCR 204 |
Parties: | ACT Director of Public Prosecutions Zeph Gerrard Kerry (a pseudonym) ( Accused) |
Representation: | Counsel A Williamson SC ( DPP) T Jackson ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Accused) | |
File Number: | SCC 39 of 2022 |
LOUKAS-KARLSSON ACJ
Introduction
On 29 November 2022, I made orders concerning evidence in this case. I indicated then that the reasons were reserved. The reasons now follow.
I note that the complainant Ms A was referred to as AA in Elkaim J’s judgments (R v Kerry (a pseudonym) (No 3) [2022] ACTSC 171 (R v Kerry (a pseudonym) (No 3)); R v Kerry (a pseudonym) (No 4) [2022] ACTSC 174).
On 14 July 2022, Elkaim J ruled on a pre-trial application made by the prosecution that the unsigned NSW police statement of Ms A made in October 2019 and the evidence in chief interview (EICI) of Ms A conducted at the Winchester Police Centre on 15 July 2020 be adduced as evidence: R v Kerry (a pseudonym) (No 3). His Honour concluded that the statement and the EICI were admissible pursuant to section s 65(2)(c) of the Evidence Act 2011 (ACT) (Evidence Act).
Section 76(3) of the Court Procedures Act 2004 (ACT) (Court Procedures Act) provides that his Honour’s ruling is binding at the trial of the accused unless the court is of the view that it is “in the interests of justice” to revisit the ruling.
Applications
The accused made three applications:
(a)An application under s 76(3) of the Court Procedures Act to re-agitate the admissibility of the EICI and the admission of the statement made to NSW police in October 2019.
(b)That the EICI and the NSW police statement be excluded.
(c)In the alternative, that the EICI and the NSW police statement be excluded pursuant to s 135 and/or s 137 of the Evidence Act.
Section 76 of the Court Procedures Act
Relevantly, the Court Procedures Act provides as follows:
76 Supreme Court jurisdiction to make orders for conduct of indictable trials
(3) An order, ruling or direction of the Supreme Court under subsection (2) is binding on the trial judge at the hearing of the trial unless in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding.
(emphasis added)
In my view, no cause has been established to revisit Elkaim J’s ruling concerning the NSW police statement. The circumstances concerning that document are no different in substance to the circumstances before Elkaim J. I note it emerged at the hearing on 28 November 2022 that the NSW police had lost the signed statement of Ms A. Fortunately, Ms A had kept a copy of this signed statement. Subsequent to that hearing on 28 November 2022, the statement was located by Ms A’s husband. Ms A’s husband, with great diligence, kept all of his wife’s papers after her passing. The prosecution tendered that document to form part of Exhibit 13 which contained the unsigned statement of Ms A. That statement will now form part of the evidence in this case.
The situation concerning the EICI however is in a different category.
What has been established is as follows:
(a)The complainant had in her possession, during the interview, copies of her NSW police statement and a timeline document. I note that copies of these documents were not taken by police.
(b)During the police interview, it is clear from the footage that on a significant number of occasions the complainant was looking down at the documents when answering the questions put to her.
(c)It is clear from the video that the documents were moved around between being in front of the complainant on her lap, and at one point ended up on a low table in front of the complainant. I infer from viewing the video that the documents were used to revive or refresh the memory of the complainant.
(d)Further, that there were breaks; approximately 45 minutes in total during the interview where the complainant had the opportunity to refresh her memory from these documents.
(e)Finally, according to the evidence of the interviewing officer, the complainant had in her possession: “copies of statements that she had previously provided to NSW Police. She had some photographs. She had some copies of Facebook Messenger message conversations, and I believe she had some notes that she had made in reference to a timeline of events.”
10. There is a real question as to whether the complainant was giving a free narrative of events. In my view, a question is raised as to whether the representations made are reliable.
11. I am satisfied, in light of the above, that it is in the interests of justice to revisit the ruling in relation to the admissibility of the EICI and consider the application afresh. It is “not in the interests of justice” for the order to remain binding. It is therefore for the prosecution to establish that the necessary preconditions are met concerning s 65(2)(c) of the Evidence Act.
Relevant Legislation
Section 65 of the Evidence Act
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—
(a) was made under a duty to make that representation or to make representations of that kind; or
(b) was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; or
(d) was—
(i) against the interests of the person who made it at the time it was made; and
(ii) made in circumstances that make it likely that the representation is reliable.
(emphasis added)
Section 32 of the Evidence Act
32 Attempts to revive memory in court
(1)A witness must not, in the course of giving evidence, use a document to try to revive the witness’s memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it must take into account—
(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether the part of the document that the witness proposes to use is, or is a copy of, a document that—
(i) was written or made by the witness when the events recorded in it were fresh
in the witness’s memory; or(ii) was, at that time, found by the witness to be accurate.
(3)If a witness has, while giving evidence, used a document to try to revive the witness’s memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of the witness’s evidence, the part of the document that relates to the fact or opinion.
(4) The court must, on the request of a party, give the directions the court thinks fit to ensure that the part of the document that relates to the proceeding is produced to the party.
(emphasis added)
Section 52 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)
52 Police interview audiovisual recording may be admitted as evidence
(1)An audiovisual recording may—
(a) be played at the hearing of a relevant proceeding for the offence the subject
of the proceeding; and(b)if the recording is played at the hearing—be admitted as the witness’s evidence in chief in the proceeding as if the witness gave the evidence at the hearing in person.
(2)However, the court may refuse to admit all or any part of the audiovisual recording.
(3)The witness must not be in the courtroom, or visible to anyone in the courtroom by audiovisual link, while the audiovisual recording is played at the hearing.
(4)This section is subject to section 56.
(5)In this section:
hearing includes a pre-trial hearing.
(emphasis added)
The EICI and the evidence of the interviewing officer
12. The evidence of the interviewing officer in summary is as follows:
(a)that there were documents in the possession of the complainant;
(b)during the breaks, the officer did not remain in the room;
(c)that the officer could not say there was no refreshing of memory during the breaks;
(d)that the interview was conducted on what was described as a “victim-based” model rather than a model consistent with giving evidence in court; and
(e)that the use of documents in such a way is contrary to the officer’s own experience in giving evidence in court.
13. It is clear that the following was not done:
(a)there was no attempt by the police officer to properly identify or copy documents that were in possession of the complainant; and
(b)there was no attempt by the police officer to determine if, during the breaks, the complainant had undertaken any refreshing of her memory.
14. I note that, if the evidence were given in court, leave of the court would be required in accordance with s 32 of the Evidence Act, as set out earlier, to revive a witness’ memory through the use of a document.
15. As stated at [9], in my view what can be seen in the interview is the clear use of documents to revive or refresh memory on a number of occasions during the interview.
Consideration
16. The first issue to be considered is the meaning of ‘circumstances’. ‘Circumstances’ is referred to in s 65(2)(b), (c) and (d) of the Evidence Act. While circumstances mean “the circumstances in which the representation was made” (R v Mankotia [1998] NSWSC 295), it is established that “evidence of events other than those of the making of the previous representation [may] throw light upon the circumstances of the making of that representation”: see Sio v The Queen [2016] HCA 32; 259 CLR 47 (Sio v The Queen) at [69]; R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 at [29]; Prasad v R [2020] NSWCCA 349.
17. Ultimately, the language of 65(2)(c) directs attention to the objective circumstances in which the representation or representations were made and not the truthfulness of the person making the representation or representations (see Sio v The Queen at [70]).
18. The second issue to be considered is the interpretation more broadly of s 65(2)(c). In my view, it is clear that s 65(2)(c) must be interpreted strictly for the reasons discussed in Conway v The Queen [2000] FCA 461; 98 FCR 204 at [146]. The Full Federal Court there concluded that a strict interpretation of s 65(2)(c) was necessary because the test of high probability of reliability is an onerous test. The necessity for an onerous test arises from the potential for such evidence to operate unfairly against an accused person:
The requirement in s 65(2)(c) of the Act that it be “highly probable” that a representation be “reliable” in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating “reliability” alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule: Williams v The Queen (2000) 119 A Crim R 490 at [55]. See also R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 286.
(emphasis added)
19. I have come to the conclusion that the EICI does not meet the standard required by s 65(2)(c). It is one thing to say that a representation is probably reliable. It is quite another to find as a matter of law that it meets the more onerous test under s 65(2)(c) that it was “made in circumstances that make it highly probable that the representation is reliable”.
20. The onerous standard of high probability of reliability is not met in circumstances where, during the EICI, memory was prompted, refreshed or revived from a variety of documents. I further note that one of the documents has still yet to be produced to the prosecution, the accused or the court, being “notes… in reference to a timeline of events” referred to by the interviewing officer in evidence. These features of the EICI undermine the establishment of high probability of reliability in this case.
21. I am fortified in the conclusion that the EICI is not admissible by the following matters set out below.
22. First, as underlined by Refshauge ACJ and Penfold J in Munro v The Queen [2014] ACTCA 11 (Munro v The Queen) at [5]: ‘there is a real question whether the making of a statement to a police officer, even in circumstances in which the maker of the statement acknowledges an obligation to tell the truth to the best of his or her knowledge and belief, and risk of prosecution if he or she does not do so, is sufficient to satisfy the test in s 65(2)(c)’. Section 65(2)(c) does not apply to a statement simply because it was made to a police officer or because a false statement would expose the maker to prosecution (see Munro v The Queen at [14]).
23. Second, while EICIs do not occur in court, the rules of evidence nevertheless apply. It was accepted by the prosecution that the Evidence (Miscellaneous Provisions) Act 1991 (ACT) does not detract from this fundamental proposition. The rules of evidence must apply.
24. Third, the introduction of hearsay in a criminal trial is a matter that should not be undertaken blithely without due consideration and without regard to the potentially serious consequences for a fair criminal trial. As stated by the High Court in Sio v The Queen per French CJ, Bell, Gageler, Keane and Gordon JJ at [60]:
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.
(emphasis added)
25. Fourth, the High Court underlined in Sio v The Queen the Court’s earlier statements in IMM v The Queen [2016] HCA 14; 257 CLR 300 that s 65(2)(c) and (d) and s 85 of the Evidence Act provide the only occasion for a trial judge to consider the reliability of evidence in connection with the admissibility of evidence. Relevantly to s 65(2)(c) (as the language is similar to s 65(2)(d)(ii)), the High Court went on to draw the following distinction at [72]:
It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.
(emphasis added)
26. The prosecution has not established that the EICI evidence is “made in circumstances that make it highly probable that the representation is reliable”. This is because it is not established that the complainant’s evidence is the result of free recall.
27. Before concluding, I note the following three matters.
28. First, the High Court discussed in Sio v The Queen from [52] to [61] the erroneous compendious approach adopted by the NSW Court of Criminal Appeal with respect to representations. An approach which focuses on a particular representation is obviously “conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials” (Sio v The Queen at [61]). Nevertheless, both the prosecution and the accused in the case before me adopted a compendious approach concerning the representations. Perhaps in a real sense, that compendious approach was unavoidable in the context of the nature of the allegations and the broad time period alleged. A similar position was reached in Prasad v R [2020] NSWCCA 349 at [89]:
I do not however understand Sio to have stipulated that in every case the court must exhaustively list material facts and representations, irrespective of whether it is possible and sensible in the circumstances of the case to deal with certain facts and representations on a group basis. There was, as I have indicated in [85], a particular reason in Sio why the critical representation with which the case was concerned needed to be identified and addressed separately. Undoubtedly, courts applying s 65(2) need to be alert to the existence of such particular considerations.
29. Second, I make it clear that blame for the conduct of the interview should not be attributed to the individual officer conducting the EICI. I do not name the officer. On the evidence before me, it appears the failure is a failure of police training in this crucially important area concerning the taking of evidence from sexual assault complainants.
30. Third, unquestionably the distinction between events that throw light on the circumstances in which a representation is made and events that go only to the reliability of the alleged fact is not necessarily a bright-line distinction. Further, the authorities have not necessarily spoken with one voice on this question. Nevertheless, in coming to my conclusion I make it clear I have not had regard to the passage of many decades since the alleged events. Nor have I had any regard to the mental health history of the complainant. Nor have I had regard to allegations concerning other family members. These matters are not germane to my decision.
31. My decision is based on the objective circumstances of the EICI. A genuine issue has arisen as to whether the complainant gave a free narrative of events, as opposed to recalling the contents of previously prepared documents. As stated earlier, what can be seen throughout the interview is the clear use of documents to refresh memory on a significant number of occasions. The court cannot determine in these circumstances whether the representations made during the EICI were the result of free recall, or were the result of referring to documents during the interview, or were the result of a coalescence of reviving of memory from documents alongside some free recall. Evidence given in this way tends to be impervious to proper legal analysis.
Orders
32. For those reasons, the following orders were made on 29 November 2022:
(a)Leave is not granted under s 76(3) of the Court Procedures Act to revisit the pretrial decision of Elkaim J: R v Kerry (a pseudonym) (No 3) [2022] ACTSC 171 in relation to the NSW police statement dated October 2019.
(b)Leave is granted under s 76(3) of the Court Procedures Act to revisit the pretrial decision of Elkaim J: R v Kerry (a pseudonym) (No 3) [2022] ACTSC 171 in relation to the Evidence in Chief Interview dated 15 July 2020 between the interviewing officer and Ms A.
(c)The evidence in chief interview dated 15 July 2020 is not admissible under s 65(2)(c) of the Evidence Act.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Chief Justice Loukas-Karlsson. Associate: Lara Parmenter Date: 24 March 2023 |
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