Director of Public Prosecutions v Rowson (Ruling No 1)
[2018] VCC 307
•21 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00906
Indictment G10290502
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK WILLIAM ROWSON |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12-15, 19-20 February 2018 | |
DATE OF RULING: | 21 February 2018 | |
CASE MAY BE CITED AS: | DPP v Rowson (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 307 | |
REASONS FOR RULING ON EVIDENCE
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Subject:CRIMINAL LAW
Catchwords: Criminal Law – Evidence – Hearsay evidence –– ‘First-hand’ hearsay – Representor deceased – Admissibility
Legislation Cited: Evidence Act 2008 ss 55, 56, 59, 60, 62, 65, 66A, 67
Cases Cited:Conway v The Queen (2000) 98 FCR 204 – Azizi v The Queen (2012) 224 A Crim R 325 – R v Ambrosoli (2002) 55 NSWLR 603 – Sio v The Queen (2016) 259 CLR 47 – Clarke (a Pseudonym) v The Queen [2017] VSCA 115 – R v Polkinghorne (1999) 108 A Crim R 189
Other Materials Cited: Stephen Odgers, Uniform Evidence Law in Australia, 12th ed. (Sydney, Thomson Reuters: 2016) [EA.66A.60]
Ruling:Most representations ruled admissible
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Thomas | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr P Kilduff | Stary Norton Halphen |
HIS HONOUR:
1 The accused is charged with three counts of obtaining financial advantage by deception and twenty-four counts of theft, allegedly committed between 16 August 2013 and 12 January 2015.
2 The alleged victim in relation to all charges is Peter Graham Murchie, who is now deceased. The accused and Murchie had been close friends for a very long time, having gone to school together, and the accused was Murchie’s best man at his wedding. They had remained in close contact throughout the intervening years. Murchie contracted cirrhosis of the liver as a result of alcoholism, and by August 2014 he was in end-stage liver failure. He was, from that time until his death in December 2014, in and out of the Box Hill Hospital.
3 The Crown alleges that the accused stole money from Murchie’s bank account in a number of transactions between 2 February 2014 and 14 November 2014 prior to Murchie’s death, and on one occasion on 12 January 2015 after his death.
4 The three charges of obtain financial advantage by deception are:
Charge 1
5 Charge 1 relates to a mortgage in the sum of $175,000 from Macquarie Bank Ltd in the name of Peter Graham Murchie, which it is alleged was taken out falsely by the accused using Murchie’s name and identity. The allegations are that the accused falsely represented to Macquarie Bank Ltd that:
(a)He was Peter Graham Murchie.
(b)Peter Graham Murchie was employed by Global Project Management as a fire safety officer.
(c)Peter Graham Murchie earned a net annual salary of $105,000.
(d)A document containing a certified copy of a Victorian driver licence and a Medicare card both in the name of Peter Graham Murchie was a genuine document.
(e)The Victorian driver licence in the name of Peter Graham Murchie was a genuine document.
(f)The two payslips in the name of Peter Graham Murchie were genuine documents.
Charge 5
6 The second charge of obtain financial advantage by deception (Charge 5) relates to an alleged loan, secured by a mortgage, in the sum of $75,000 from Macquarie Bank Ltd in the name of Peter Graham Murchie, which it is alleged the accused falsely took out on 12 March 2014 using Murchie’s identity. It is alleged that the accused falsely represented that:
(a)He was Peter Graham Murchie.
(b)Peter Graham Murchie was employed by Global Project Management as a fire safety officer.
(c)Peter Graham Murchie had a net annual salary of $105,000.
(d)The two payslips in the name of Peter Graham Murchie were genuine documents.
Charge 24
7 The third charge of obtain financial advantage by deception (Charge 24) relates to a credit card facility with a credit limit of $23,600 obtained from the Macquarie Bank, the Crown alleges, by the accused in the name of Peter Graham Murchie. It is alleged that the false representations in relation to that deception were:
(a)That the accused was Peter Graham Murchie.
(b)Peter Graham Murchie was employed by Global Project Management as a fire safety officer.
(c)Peter Graham Murchie had a net annual salary of $105,000.
8 That offence is alleged to have been committed on 12 August 2014.
The Hearsay evidence
9 Most of the hearsay evidence is sought to be admitted by the Crown in relation to charges 1 and 5. Representations 5A and 5B relate mainly to the theft charges, but may have some peripheral relevance to charges 1 and 5. None of the representations is admissible in respect of charge 24.
10 The Crown alleges that the former wife of Peter Graham Murchie, Ms Anna Murchie, became aware of the alleged loan from Macquarie Bank and became suspicious with regard to whether it was a fraudulent loan, and, if so, whether the accused had been involved in perpetrating the fraud. She carried out some preliminary investigations, and this led to a number of conversations that allegedly occurred in which, it is alleged, Murchie made a number of representations to the effect that he did not have these loans and they were not his valid loans. It is this evidence which the Crown seeks to lead in the trial.
11 By a notice of hearsay evidence dated 21 February 2017 the Director seeks to have admitted into evidence what has been itemised as seven, but is in fact more, representations allegedly made by Peter Graham Murchie during his admissions in the Box Hill Hospital. I heard evidence from a number of witnesses on a voir dire relating to the admissibility of these representations.
12 Those witnesses included Dr Chung, a treating gastroenterologist who was the specialist in charge of the care of Mr Murchie in the final stages of his treatment at Box Hill Hospital, who was called by the defence.
13 At the hearing on Day 5 of the voir dire on 19 February 2018, I gave leave to the Crown to amend their hearsay notice by adding a seventh item relating to an oral statement allegedly made by Mr Murchie to his daughter Olivia Murchie (‘Olivia’) some short time before 11 November 2014, which appears at transcript page 113, lines 5–6, ‘I promise Olivia I haven't taken anything out’.
14 The defence accepts that Peter Graham Murchie is unavailable, he having died on 3 December 2014. Moreover, the defence concede that all of the representations sought to be introduced into evidence by the Crown fall into the category of ‘first-hand’ hearsay as defined in s 62 of the Evidence Act 2008 (‘the Act’).
15 The defence on the voir dire did not challenge the witnesses’ credibility or their reliability regarding the making of the representations by Mr Murchie. The main ground of attack was directed to whether, by reason of his medical condition, Mr Murchie’s memory of past events or his cognition at the time was such that his representations were unreliable. It was not suggested that they were fabrications. The defence did not rely on any discretionary grounds of exclusion.
16 So far as relevance is concerned, the only defence submission directed towards the inadmissibility of any representations on the ground they are not relevant under s 55 of the Act was what I have designated Representation 5B.
17 I find for the reasons advanced by Ms Thomas that the assertions contained in that representation are relevant in the sense that if the assertions are accepted by the jury they each could rationally affect the assessment of a fact in issue in the trial.
18 Turning now to the exclusionary hearsay rule in s 59 of the Act, the Crown filed a hearsay notice in which it initially sought to rely on s 65(2)(b) and s 65(2)(c) of the Act. On 20 February 2018, I granted leave to the Crown to add reliance upon s 66A. The Crown also sought to rely upon the fact that some of the statements were not being introduced by the Crown for a hearsay purpose, and therefore were not excluded pursuant to s 60(1) of the Act. The representations, asserted facts, and the bases upon which they are sought to be admitted into evidence, may be tabulated as follows.
Representation 1
19 On 11 November 2014, at the Box Hill Hospital, Peter Graham Murchie is alleged to have said:
I have not applied for a loan from the Bank of Queensland or Macquarie Bank or received any funds by way of a loan.
20 The asserted facts relied upon by the Crown are:
Asserted fact 1.1: Peter Murchie had not applied for a loan from the Bank of Queensland.
Asserted fact 1.2: Peter Murchie had not applied for a loan from Macquarie Bank.
Asserted fact 1.3: Peter Murchie had not received any funds by way of a loan.
Asserted fact 1.1
21 The basis on which the Crown relies for the admissibility of this part of Representation 1 containing asserted fact 1.1 is that the representation is not introduced for a hearsay purpose, being merely part of the context in which the overall statement is to be understood, it forming a homogeneous whole. The Crown does not allege in this case that there was any loan (fraudulent or otherwise) from the Bank of Queensland. Accordingly, the Crown does not seek to rely on asserted fact 1.1 as to its truth. Rather, it is introduced to make sense of the remainder of the conversation on which the Crown does rely for a hearsay purpose, being that part of Representation 1 containing asserted facts 1.2 and 1.3.
22 I am satisfied that the representation, so far as it applies to asserted fact 1.1, is admissible on that basis if the rest of Representation 1 is admitted. Mr Kilduff accepted this to be the case; that is, that if the other representations are held to be admissible, then the representation containing asserted fact 1.1 would go in with the rest.
Asserted facts 1. 2 & 1.3
23 The basis of admissibility that the Crown relies upon for the representation containing asserted facts 1.2 and 1.3 is s 65(2)(c) of the Act.
24 I rule that Representation 1 is admissible under that provision. I find that in the circumstances it was made it is highly probably that the representation is reliable for the reasons advanced by Ms Thomas.
25 Moreover, Mr Murchie’s representation is consistent with other representations he is alleged to have made to his former wife while he was in Box Hill Hospital in September and October 2014 (Representations 3, 4 & 5A) and representations he is alleged to have made to Olivia, shortly before and shortly after this representation (Representations 6 & 7).[1] In this regard, I am mindful of the discussion of the restricted way in which these other representations of Mr Murchie may be relied upon in this case, as was emphasised by Bongiorno JA in Azizi v The Queen,[2] in particular his Honour’s reference to what was said in R v Ambrosoli[3] by Mason P.
[1] See Conway v The Queen (2000) 98 FCR 204, 244 [145] (Miles, von Doussa and Weinberg JJ).
[2] (2012) 224 A Crim R 325, 337–338 [48]–[51] ((Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).
[3] (2002) 55 NSWLR 603, 616 [34]–[37] (Mason P, Hulme and Simpson JJ agreeing).
26 These earlier and later representations of Mr Murchie touch on ‘the reliability of the circumstances of the making of [present] representation’, rather than ‘a general assessment of whether or not it is likely that [Mr Murchie] is a reliable witness’.[4] This is significant in the present case given the nature of the defence attack on the reliability of the representation because it demonstrates that Mr Murchie was able to give a consistent account of these events to two different people on a number of separate occasions despite the fact he was in his final illness and suffering from hepatic encephalopathy.
[4] Sio v The Queen (2016) 259 CLR 47, 68–9 [71]–[72] (French CJ, Bell, Gageler, Keane and Gordon JJ); Clarke (a Pseudonym) v The Queen [2017] VSCA 115 [80] (Redlich JA, Bale AJA)
27 On the evidence I find that Mr Murchie’s medical condition on 1 November 2014 was not such as to cast doubt on the reliability of his memory regarding the purported loan, or his ability to think rationally and responsively and to articulate his position regarding the purported loan. Moreover, any motive for Mr Murchie to deliberately lie about the asserted facts contained in the representation was expressly disavowed by Mr Kilduff. In other words, the only aspect of the circumstances in which the representation was made that Mr Kilduff relied on to demonstrate its unreliability was Mr Murchie’s medical condition on the relevant day, which he submitted was sufficient for me to not find that it was highly probable this representation is reliable.
28 So far as Mr Murchie’s incompetency to sign a financial power of attorney on 12 November 2014 is concerned and how this may be relevant under s 61 of the Act applying s 13(1), I find that at the respective times he made the representations the subject of this application, he was competent to answer questions regarding matters concerning the purported loan and ancillary matters.
Representation 2
29 The representation containing asserted fact 2.1 relates to another representation allegedly made on 11 November 2014 at the Box Hill Hospital by Peter Graham Murchie, where he was shown a copy of a signed mortgage of land document for property he owned, and he is alleged to have said: ‘This is not my signature’.
30 The asserted fact is that Peter Graham Murchie’s signature does not appear on that document.
31 Once again, the Crown relies on s 65(2)(c) of Act and, for similar reasons to those I have given in respect of Representation 1, I am satisfied that the representation was made in circumstances that make it highly probable that the representation is reliable. There was simply no evidence that Mr Murchie’s medical condition was likely to adversely affect his capacity to identify whether his signature on a document and accurately articulate his conclusion regarding that matter.
Representation 3
32 Representation 3 is an oral statement allegedly made in September 2014 by Peter Graham Murchie to his former wife to the effect that ‘he did not have any loans whatsoever in his name or any business name’. The asserted facts here are:
Representation 3.1: Peter Graham Murchie did not have any loans in his personal name.
Representation 3.2: Peter Graham Murchie did not have any loans in any business name.
33 The first basis for admissibility the Crown relies upon in relation to these two asserted facts forming part of this representation is s 66A of the Act. This is on the basis that Murchie is stating something from his personal knowledge. In other words, this was a contemporaneous representation about Murchie’s knowledge. I note the provisions of s 62(3) of the Act to the effect that:
For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s ... knowledge ... at the time the representation referred to in that section was made.
34 I am not satisfied that s 66A can apply to admit this representation in evidence. As Levine J observed in R v Polkinghorne[5] if the ‘intention, knowledge or state of mind’ components of this section are interpreted too widely, it would ‘render the whole of the hearsay exclusionary rules irrelevant in the Evidence Act’.
[5] (1999) 108 A Crim R 189, 193 [25]. See further Stephen Odgers, Uniform Evidence Law in Australia, 12th ed. (Sydney, Thomson Reuters: 2016) [EA.66A.60] and the cases cited in footnote 303 (‘Odgers’).
35 In relation to Representations 3.1 and 3.2, the Crown seeks in the alternative to rely on s 65(2)(b) on the basis that Mr Murchie is making a representation regarding an ongoing debt, and therefore the requirement of contemporaneity is satisfied, because the obligation to pay the debt was in existence when the representation was made.
36 I have been unable to locate any authorities which apply this provision in the case of an ongoing state of affairs, such as a continuing loan, or an existing obligation to make payments under a loan. Its common law antecedents in the law relating to res gesta and the admissibility of complaint evidence and the requirement for spontaneity and the need for there to be little opportunity for concoction[6] suggest it is directed to an asserted fact which is a single identified event which must be reasonably contemporaneous with the representation.
[6] See Ratten, Williams, Ambrosoli and Azizi and the other cases cited in Odgers at EA.66A.60.
37 And finally, further in the alternative, the Crown relies on s 65(2)(c) of the Act. For the reasons given by Ms Thomas and in line with my earlier analysis in relation to representations 1 and 2, I am satisfied that this representation was made in circumstances that make it highly probable that the representation is reliable. There was again simply no evidence that Mr Murchie’s medical condition was likely to have adversely affected his memory or his ability to accurately articulate this. There are also other circumstances making it highly probable the representation is reliable.
Representation 4
Representation 4A
38 Representation 4A is an oral statement allegedly made in September 2014 by Mr Murchie to his former wife during a conversation in which she showed him the certificate of title to his property showing a mortgage on the title. It is alleged that Murchie said:
I did not sign this document and I don’t even know anyone called Michael Melchiorre.
39 The Crown relies upon the following asserted facts in relation to that representation:
Representation 4A.1: ‘I did not sign this document.’ The Crown relies on s 65(2)(c) of the Act. For reasons similar to my previous rulings I am satisfied that this representation was made in circumstances that make it highly probable it is reliable.
Representation 4A.2: ‘I don’t even know anyone called Michael Melchiorre’. The Crown relies on s 66A on the basis of a contemporaneous statement about Mr Murchie’s knowledge, and alternatively s 65(2)(c) of the Act.
40 I rule that this representation does fall within the parameters of s 66A. However, I am not satisfied that this representation was made in circumstances that make it highly probable it is reliable such as to invoke admissibility under s 65(2)(c). In this case there are no other like representations bearing upon the circumstances in which this representation was made which bolster my assessment of its reliability.
Representation 4B
41 Representation 4B occurred in the same conversation, when Ms Murchie allegedly told her former husband that he had a mortgage on his property and he is alleged to have replied:
That’s impossible. How can I have a loan if I haven’t been requested for any repayments. Has someone taken out a loan and used my title?
42 In relation to this representation, the Crown seeks to prove the following asserted facts:
Representation 4B.1: Peter Murchie did not know he had a loan. The Crown seeks to rely upon s 66A on the basis of a contemporaneous statement of the representor’s knowledge.
Representation 4B.2: Peter Murchie had not received any requests for payments in relation to a loan. Reliance is placed on s 65(2)(b) on the basis that this would be a continuing obligation and therefore the requirement of contemporaneity is satisfied; and, in the alternative, s 65(2)(c) of the Act.
Representation 4B.3: The asserted fact the Crown seeks to rely upon is: ‘Has someone taken out a loan?’ Once again, the Crown relies on s 65(2)(b), and in the alternative s 65(2)(c), on the same basis as in 4B.2.
Representation 4B.4: The asserted fact the Crown seeks to rely upon is ‘Has someone used my title?’ Once again the Crown relies on s 65(2)(b) and s 65(2)(c) of the Act on the same basis as in 4B.2 and 4B.3.
43 In my view these representations should be examined in the context of each other representation uttered by Mr Murchie at this time and not in a piecemeal fashion. When read together with the element of surprise expressed by the exclamation: ‘That’s impossible’ and the consistency with earlier and later representations to the same or similar effect, and for reasons similar to my previous rulings, I am satisfied that these representations were made in circumstances that make it highly probable they are reliable.
44 I don’t accept the s 66A basis for admissibility of representation 4B.1, but if the remainder of this conversation is admissible, then this part of the conversation is necessary to give context to representations 4B.2–4B.4 and therefore admissible under s 60 of the Act.
Representation 5
Representation 5A
45 Representation 5A is an oral statement allegedly made in September or October 2014 by Mr Murchie to his former wife during a number of conversations that allegedly occurred between them, in which he is alleged to have said:
I have never borrowed money from anyone. I have plenty of money in my account.
46 The Crown seeks to rely upon this representation to prove the following asserted facts:
47 Representation 5A.1: ‘I have not borrowed money from anyone.’ The Crown relies on s 65(2)(b) of the Act. In my view this representation does not comply with the requirement of contemporaneity. I do not accept this section can be relied on to prove a continuing state of affairs over a lifetime — ‘I have never [in my lifetime]’.
48 Representation 5A.2: ‘I have plenty of money in my account.’ The Crown relies on ss 66A and s 65(2)(c) of the Act. In my view this representation does not pass the threshold test for relevance in s 55 (a point taken by Mr Kilduff) in that it could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Assuming it is accepted by the jury (as I must) the representation cannot logically bear upon the issues as to whether the withdrawals from Mr Murchie’s account were authorised or unauthorised transactions.
49 Representation 5A.3: ‘I have only one account.’ Once again, the Crown relies on s 66A and s 65(2)(c) of the Act. Once again, I accept Mr Kilduff’s argument that this representation does not pass the threshold test for relevance in s 55 in that it could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Assuming it is accepted by the jury (as I must) the representation cannot logically bear upon the issues as to whether the withdrawals from Mr Murchie’s account were authorised or unauthorised transactions.
50 So far as the question whether Mr Murchie knew he had more than one account at the time this representation was made, I am not satisfied that given the context of the conversation the statement ‘I have plenty of money in my account’ logically excludes the possibility that he knew he had other accounts which did not have ‘plenty of money’ in them’.
Representation 5B
51 Representation 5B occurred in the context of the same alleged conversations when Ms Murchie asked Mr Murchie if he was a director of any companies or if he had made financial contributions to any companies, and the representation sought to be led is:
No I haven’t. I only have shares I inherited from my mother and I receive dividends.
52 The asserted facts sought to be relied upon in relation to that representation are:
Representation 5B.1: ‘No I haven’t made any financial contributions to any companies.’ The Crown relies on s 65(2)(c) of the Act.
Representation 5B.2: ‘I only have shares.’ Once again, the Crown relies on s 65(2)(c) of the Act.
Representation 5B.3: ‘I inherited my shares from my mother and I receive dividends.’ Representation 5B.3 is sought to be admitted for a non-hearsay purpose to give context to the other statements made at that time. Alternatively, it is submitted that it is admissible under s 65(2)(b) of the Act as being a contemporaneous statement about Mr Murchie’s belief as to his ownership of shares and receipt of dividends, or alternatively under s 65(2)(c) of the Act.
53 I am not satisfied these representations pass the threshold test of relevance in s 55 given my understanding of the facts in issue in this trial, and I rule them inadmissible on that basis. Alternatively, I find that the requirement of contemporaneity in s 65(2)(b) is not met for the reasons I have previously stated. I am not satisfied that the circumstances in which these representations were made make it highly probable that theses representations are reliable under s 65(2)(c). There are no other like representations showing a consistency of thought throughout Mr Murchie’s illness in relation to his memory of past shareholdings and company associations.
Representation 6
54 Representation 6 is an oral statement allegedly made by Mr Murchie a few days after 11 November 2014 to his Olivia, in which he is alleged to have said:
‘I promise Olivia, I don’t know anything about this loan’.
55 This representation is sought to be introduced pursuant to s 66A of the Act, being Mr Murchie’s knowledge of the loan. In the alternative, the Crown relies on s 65(2)(c) of the Act.
56 For the reasons previously given I am of the opinion s 66A does not apply in a case such as the present one. However, for reasons similar to my previous rulings on Mr Murchie’s representations concerning the loans and related matters, I am satisfied that this representation was made in circumstances that make it highly probable it is reliable.
Representation 7
57 Representation 7 is an oral statement allegedly made by Mr Murchie before 11 November 2014, in which he is alleged to have said to Olivia:
‘I promise Olivia, I haven’t taken anything out.’
58 Once again the Crown relies on s 66A of the Act, being his knowledge of the existence of the loan, and in the alternative s 65(2)(c) of the Act.
59 For the reasons previously given I am of the opinion s 66A does not apply in a case such as the present one. However, for reasons similar to my previous rulings on Mr Murchie’s representations concerning the loans and related matters, I am satisfied that this representation was made in circumstances that make it highly probable it is reliable
And I so rule
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