Director of Public Prosecutions v Stetco (Ruling No. 1)
[2021] VCC 2201
•2 December 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01997
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCIAN STETCO |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March, 9 July 2021 | |
DATE OF RULING: | 2 December 2021 | |
CASE MAY BE CITED AS: | DPP v STETCO (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2201 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Application to adduce hearsay evidence; Complainant deceased; Whether complainant’s statements, VARE and evidence in committal proceedings admissible; Whether complainant cognitively impaired; Application to exclude photo identification evidence; Whether photoboard comprises photos which suggest persons in custody.
Legislation Cited: Evidence Act 2008 (Vic); Criminal Procedure Act 2009 (Vic); Jury Directions Act 2015 (Vic)
Cases Cited:Harrison v the Queen (2005) 158 A Crim R 454; Williams v The Queen [2000] FCA 1868; Ratten v The Queen [1972] AC 378; Sio v The Queen (2016) 259 CLR 47; R v Ambrosoli (2002) 55 NSWLR 603; Snyder v The Queen [2021] VSCA 96; R v Knigge [2003] VSCA 94; Luna v The Queen [2016] VSCA 10; Bray v The Queen [2014] VSCA 276; Pace & Another v The Queen [2014] VSCA 317; DPP v Asling (Ruling No 2) [2017] VSC 38; Bufton v The Queen [2019] VSCA 96; Haddara v The Queen (2014) 43 VR 53.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr F. Cameron | Office of Public Prosecutions |
| For the Accused | Mr M. Thomas | Stephen Andrianakis & Associates |
HIS HONOUR:
Introduction
1In this matter the prosecution seek to adduce hearsay representations of the complainant, who is now deceased.
2Brett Damien Gilbert alleged that the accused, Lucien Stetco, came to his home in Gisborne on 15 October 2017 in relation to an unpaid debt, assaulted him with a baseball bat, threatened to kill him and damaged his property.
3As a consequence, Mr Stetco is charged on Indictment No J10630391 with:
· one charge of aggravated burglary;
· one charge of intentionally causing injury;
· three charges of criminal damage; and
· one charge of making a threat to kill.
4About half an hour after the incident, Mr Gilbert drove himself to the Gisborne police station where he reported the assault to Leading Senior Constable Tracy Taylor. Ms Taylor called an ambulance and Mr Gilbert was taken to Footscray Hospital, where he was treated and discharged later that day.
5On 16 October 2017, Mr Gilbert participated in a VARE[1] with police, in the presence of an independent third person. In that interview he described the assault in considerable detail.
[1] Video and Audio Recorded Evidence.
6On 29 January 2018, Mr Gilbert made a further statement in which he confirmed that he had been shown a photoboard containing 12 photographs and had identified the image marked as number five by pointing to that image and stating, “That’s him, 100% that’s him”. Image number five is a photograph of the accused.
7On 7 June 2018, Mr Gilbert made a further statement in which he confirmed the accuracy of his VARE.
8On 1 October 2018, Mr Gilbert attended at the Melbourne Magistrates’ Court where he gave evidence at the accused’s committal. The statements of 7 June 2018 and 29 January 2018 became exhibits, as did the VARE. Mr Gilbert was cross-examined at some length by counsel then acting for Mr Stetco.
9After the committal proceedings, Mr Gilbert passed away.
The application
10The prosecution have given notice pursuant to s 67 of the Evidence Act 2008 (‘the Act’) of their intention to adduce the following evidence at Mr Stetco’s trial:
(a) The four representations made to Leading Senior Constable Taylor on 15 October 2017;
(b) The identified representations in the VARE of 16 October 2017;
(c) Mr Gilbert’s identification of the accused from the photoboard on 29 January 2018; and
(d) Mr Gilbert’s evidence at committal, including his statements of 29 January 2018 and 7 June 2018.[2]
[2] The statement of 7 June 2018, annexed the VARE recording and transcript
11The statutory exceptions to the hearsay rule upon which the prosecution rely are ss 65(2)(b) and 65(3).
12Mr Stetco opposes each application.
Background
13In early 2016, Brett Gilbert met Elizabeth Marks through a business known as High Class Escorts. He became a client of Ms Marks, who used the working name Paris. He saw her approximately once a month, usually for two hours. He paid her at a rate of $375 per hour.
14During 2016 and early 2017, it is alleged that Lucien Stetco worked as a driver for Ms Marks. He would drive her to and from the complainant’s home address in Gisborne and would generally wait for her until she was ready to leave. During this period, the complainant met the accused on several occasions. Mr Gilbert came to believe that the accused’s name was Michael. He saw him driving a “mid-size silver four-wheel-drive… possibly a Honda”.
15In late 2016, Ms Marks attended Mr Gilbert’s house for a booking but was told that he was short of money and could only afford one hour. When the accused was informed of this, he told the complainant that he could loan him some money to cover the cost of the usual booking. They agreed that the accused would pay the cost of the booking to Ms Marks’s agency and the complainant would repay the accused with interest.
16It is alleged that this arrangement continued for some time, to a point where the complainant owed a debt of approximately $5,000 to the accused. Because he was having trouble repaying the debt, the complainant said that he provided the accused with some personal items as security. Those items included two paintings, a Tiffany bracelet and a Longines sports watch.
17In February 2017, Mr Gilbert told Ms Marks that he needed to pay off his debt with the accused before he could see her again. It is then alleged that in March or April of that year, the accused attended at the complainant’s home and demanded repayment of the debt. He told Mr Gilbert that the debt was accruing interest in the amount of $1,000 per week. He stated, “I want my fuckin’ money and I’m gonna come and get it”.
18Thereafter, Mr Gilbert attempted to pay down his debt and recover his personal items but could not contact the accused. On 14 October 2017, Mr Gilbert arranged for Ms Marks to attend at his home at about 12.30am on 15 October 2017. This was the first time Ms Marks had dealt with the complainant since February 2017. By this stage, Ms Marks was no longer using the accused as a driver. She left the complainant’s home, having been paid in cash, at about 2.30am on 15 October 2017. Shortly afterwards, she spoke with the accused, stating, “You’ll never guess who I saw”, and went on to inform him that she had just had a booking with the complainant.
19Around midday on 15 October 2017, the complainant decided to go to the supermarket. As he was leaving the house, he alleged that the accused drove into the driveway in a silver four-wheel-drive at a fast speed. The accused approached the complainant wearing black gloves and carrying a baseball bat covered by a towel. It is then alleged that the accused grabbed the complainant by his clothes, directed him to unlock the front door, and pushed him inside.
20Once in the kitchen, the accused is alleged to have said, “I hear you’re calling girls again… your money should be going to me, not them”. It is then alleged that he struck the complainant repeatedly with a baseball bat, causing injuries in the nature of extensive bruising to his left arm, left wrist, left thigh and left lower leg. The bat was also used to damage the kitchen bench, a pantry door and a chair.
21Mr Gilbert gave the accused $2,000 in cash but this apparently did not placate him and he struck the complainant again. As he left, he told the complainant, “I’ll be back in seven days, and if I don’t have the balance, I’ll kill you”.
22The complainant’s mobile phone had had been broken during the assault such that he was unable to call the police. It is for that reason that he drove himself to the Gisborne police station.
Representations to LSC Taylor
23The prosecution seek to adduce four representations that Mr Gilbert made to LSC Taylor at approximately 12.55pm on Sunday 15 October 2017, namely that:
(a) He had been assaulted with a baseball bat in his home by a male by the name of “Michael”;
(b) “Michael” worked for High Class Escorts and had attended Mr Gilbert's home address in relation to an outstanding debt of approximately $15,000 for the outstanding services of an escort by the name of “Paris”, whose actual name was Elizabeth;
(c) “Michael” drove a midsize grey SUV, registration unknown;
(d) “Michael” told him the he would return in a week if the money hadn't been paid and kill Mr Gilbert, and “Michael” did not elaborate on how he would kill him.
24Section 65(2)(b) of the Act is relied upon as the relevant exception given that Mr Gilbert is “unavailable”. In so far as is pertinent that section provides:
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication;
Prosecution submissions
25Mr Cameron, who appeared on behalf of the prosecution, submitted that each of these representations was made about 30 to 60 minutes after the asserted facts occurred. Mr Gilbert had told police that after the assault he went inside and tried to calm down before he got into his car to drive to the police station. These representations were therefore made “shortly after” the occurrence of the asserted facts.
26The decision of Harris v the Queen[3] was relied upon in support that submission. In that case, the deceased was assaulted at 6.30pm on 30 September 2002. He made a formal statement to police concerning the assault 24 hours later. He died on 7 October 2002. The trial judge permitted the evidence to be led by the prosecution because the statement was provided “shortly after” the asserted facts and was unlikely to be a fabrication. That ruling was upheld on appeal.
[3] (2005) 158 A Crim R 454.
27In respect of the second limb of the provision, Mr Cameron argued that there were a number of circumstances that made it unlikely the representations were fabrications. They included the following:
· The representations were made to a police officer at a police station. Mr Gilbert would have appreciated that they would be investigated and he would have understood the importance of being truthful;
· The complainant appeared visibly distressed when making the representations. According to the police officer he “appeared stressed,” and “was shaking and clammy”;
· The police officer saw injuries including a swollen left hand with bruising, an indented left forearm and bruising and welts to Mr Gilbert’s left leg;
· The content of the representations included information which placed Mr Gilbert in an unfavourable light, namely that he had run up a sizeable debt in the context of using the services of a prostitute; and
· His subsequent accounts in his VARE and evidence at committal were consistent with these representations.
Defence submissions
28Mr Thomas, who appeared on behalf of Mr Stetco, argued that the provision was directed to excepting representations that were spontaneous, unvarnished and made under the proximate pressure of the event such that the possibility fabrication could safely be excluded. That was not so here.
29To make his point, counsel referred to two passages from the decision of the Full Federal Court in Williams v The Queen.[4] The first extracted the following part of Lord Wilberforce’s speech in Ratten v The Queen[5] dealing with the res gestae exception on which the provision was based.
“...As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.”[6]
[4] [2000] FCA 1868 (‘Williams’).
[5] [1972] AC 378, 389.
[6]Williams, 501 [44].
30The second assists on the meaning of “shortly after” which expands the common law rule:
“For these reasons, it would be a mistake, in determining whether a statement has been made "shortly after", to over-emphasise such matters as whether the events in question were "fresh" in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during ("when") or under the proximate pressure of ("shortly after") the occurrence of the asserted fact.”[7]
[7] Ibid 502 [48].
31Mr Thomas further submitted that the “circumstances” relevant to the application of the provision include previous or subsequent representations made by the complainant to the extent that they reflect on the reliability of the circumstances of the making of the particular hearsay representation in issue.[8]
[8] DPP v Asling (Ruling No 2) [2017] VSC 38, [22].
32He argued that there were a number of matters which called into question the circumstances in which the complainant made the representations in question, including:
· This was not a spontaneous narrative. The complainant made the deliberate decision to go to the police in order to make these representations – they are anything but spontaneous;[9]
· The suggestion that the asserted facts were proximate and occurred only 30 to 60 minutes before the complainant’s attendance at the police station is entirely reliant on the complainant’s representations – the contemporaneity of the asserted facts relies on bootstraps reasoning; and
· There are circumstances which undermine the prosecution position that the circumstances in which the representations were made render it unlikely that the representations were fabricated, including:
§Mr Gilbert denied that he’d been drinking before the alleged assault. His blood alcohol content upon arrival at hospital was in the order of 0.15%–0.16%;
§He told medical staff at the hospital that he had a long-standing diagnosis of bipolar disorder but had not complied with his medication regime over the last month; and
§The forensic medical officer’s assessment of the complainant’s injuries suggested that the object used to inflict one or some of those injuries was “relatively rectangular/square and possibly with a hollowed centre piece. It does not have the usual features of a baseball bat (in that there are rounded edges)”.[10] That conclusion is inconsistent with the complainant’s account of assault with a baseball bat.
[9] Bufton v The Queen [2019] VSCA 96 was cited as a contrasting example. In that case there was contemporaneity (000 call) and near-contemporaneity (police statement made shortly after the event).
[10] Report of Dr Angela Williams, 26 November 2021 (Depositions pp 243–248).
33It was submitted that those circumstances suggest both a preparedness on the part of the complainant to be less than honest and an unreliability associated with his mental health condition. Those circumstances undermine satisfaction as to the unlikelihood of fabrication.
Analysis
34As was observed in Sio v The Queen:[11]
“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.”[12]
[11] (2016) 259 CLR 47 (‘Sio’).
[12] Sio, [60] (French CJ, Bell, Gageler, Keane and Gordon JJ).
35Mr Thomas, it seems to me, is right to insist on strict compliance with the provision.
36In that vein, I must consider each representation individually and examine the circumstances in which that particular representation was made, although in this instance, each of the representations were made to the same person, at the same time, in the same circumstances. It follows that most of the identified circumstances will apply to each of the representations.
37The asserted facts within the representations can be described in shorthand.
· The first relates to the fact of having been assaulted and the name of the person responsible.
· The second is as to motive.
· The third is as to the description as to the assailant’s car.
· The fourth is as to the threat to kill.
38With respect to the first, third and fourth representations, the first limb of s 65(2)(b) provides little difficulty.
39Clearly, those three representations were not made “when” the asserted facts occurred. The complainant asserted that he had been assaulted shortly before he attended the police station. True it is that the near-contemporaneity of the alleged assault cannot be independently corroborated – nonetheless, the overall circumstances are such as to suggest that the representations were being made shortly after the alleged assault had occurred.
40The assertion that the incident had occurred shortly before is also supported by Ms Taylor’s observations of Mr Gilbert’s injuries and that he appeared to be “stressed… was shaking and clammy”. Her response was to prioritise calling an ambulance so as to have the injuries treated. The further inference to be drawn, supportive of the representations being made “shortly after” the asserted facts occurred, was that no time was taken to treat the injuries before the making of the representations to the police officer.
41I am therefore satisfied that the first, third and fourth representations were made “shortly after” the occurrence of the asserted facts.
42The second representation seems to me to create some difficulty. The asserted fact relates to how the alleged debt of $15,000 arose. The events that gave rise to that debt provide background and supply motive, but they did not occur shortly before the making of the representation to Ms Taylor. The second representation provides helpful background, but it is not a necessary component of the other representations.
43In my view, the second representation was not made “shortly after” the fact/s asserted in that representation occurred and therefore fails to satisfy the statutory exemption. Although it has had some relevance on this application in determining the circumstances as to the making of the other representations, the second representation will not be admissible at trial.
44As to the second limb of s 65(2)(b), I readily accept that the representations are not spontaneous or in the character of statements that might, at common law, be caught by the res gestae rule. Nonetheless, they are proximate to the asserted facts and, having regard to the observations of Ms Taylor, were made when the complainant was still feeling the effects of the alleged assault. It might be suggested therefore that there wasn’t much opportunity for fabrication, or at least any elaborate fabrication. Those facts tend in favour of engaging the exception but I think more rigorous assessment is required.
45The provision requires me to direct my attention to an assessment of the circumstances in which the representations were made that render it unlikely that they were fabrications.
46Those “circumstances” are not to be unduly confined. In Sio, the High Court approved the following statement from Mason P in R v Ambrosoli:[13]
"evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby."[14]
[13] (2002) 55 NSWLR 603, 615 [28]–[29].
[14] Sio, 68 [69].
47It follows that the matters Mr Thomas raised as to subsequent statements of the complainant may bear on the on the unlikelihood or otherwise that the representations were fabricated.
48It seems to me that the matters raised relating to alcohol, mental health and the mechanism of injury raise issues that primarily bear upon reliability. If, for example, the prosecution had sought to rely upon s 65(2)(c) of the Act and argue that the representations were made in circumstances that make it highly probable that they were reliable, then those matters would tell against engaging that provision. Section 65(2)(c) is perhaps a higher threshold.
49That said, I accept that matters such as the complainant’s subsequent evidence in denying alcohol consumption also bear upon his honesty and credibility more generally. They perhaps leave open the possibility that there may be fabrication, however, on the material before me, that possibility can be no more than speculative.
50The fact remains, as Mr Cameron submitted, that the complainant made these representations to a police officer at a police station and must be taken to have understood that those representations would likely be thoroughly investigated. A further matter which has some force is the fact that the content of the second representation, which I have excluded, but which remains a relevant circumstance, placed Mr Gilbert in an unfavourable light and thus is unlikely to have been fabricated.
51It is also the case that Ms Taylor’s observations as to the complainant’s injuries and his demeanour at the time, tend to independently confirm that he had been subject to some form of traumatic event consistent with the asserted facts a short time before the making of the representations. Those circumstances also suggest that it is unlikely that the representations are fabrications.
52It is for the prosecution to satisfy me that the circumstances in which the representations were made make them unlikely to be fabrications, and as to the first, third and fourth representations, I am so satisfied. The Crown will be permitted to adduce those three representations through Ms Taylor.
The application to exclude the identified representations in the VARE
53As indicated, the complainant participated in a VARE on 16 October 2017. The video recording runs for 1 hour and 10 minutes and consists of 589 questions. By a short formal statement of 7 June 2018, Mr Gilbert confirmed the accuracy of the transcript of the recording.
54At the committal proceedings held at Melbourne Magistrates’ Court on 1 October 2018, he was provided with that statement together with a copy of the transcript of the VARE and confirmed on oath that it was true and correct in apparent conformity with s 130(3) of the Criminal Procedure Act 2009. Accordingly, the VARE forms part of the complainant’s evidence at committal and the prosecution seek its admission through s 65(3) of the Act. A notice pursuant to s 67 of the Act has been filed and served on defence..
55A transcript of the VARE recording was marked for the purposes of isolating each individual representation sought to be admitted. I will refer to them collectively as the VARE representations.
56The complainant was cross-examined by experienced counsel at committal. The audio of that questioning is available, as is a transcript.
57Mr Thomas raised four objections to the admissibility of the identified representations contained in the VARE. They were:
· Section 368(1)(c) of the Criminal Procedure Act renders the VARE inadmissible.
· The complainant was not “cognitively impaired” as required by s 366 of the Criminal Procedure Act.
· Section 366 of the Criminal Procedure Act does not apply to committal proceedings and any representation in the VARE therefore cannot constitute “a previous representation made in the course of giving evidence in and Australian or overseas proceeding” for the purposes of s 65(3) of the Act.
· Alternatively, the use of the VARE would result in an unfair trial and should be excluded through the Haddara[15] discretion.
[15] Haddara v The Queen (2014) 43 VR 53 (‘Haddara’).
58Mr Cameron submitted that the VARE representations were admissible and that neither s 368(1)(c) nor s 366 rendered the evidence inadmissible, nor would the use of this evidence be unfair to the accused.
59Before determining the Crown’s application to adduce the evidence under s 65(3), I will deal with the objections pertaining the use of the VARE. That issue must start at the statutory scheme authorising the use of VAREs.
60The use of pre-recorded evidence as evidence-in-chief is authorised under Part 8.2 Division 5 of the Criminal Procedure Act. That division is titled “Use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence, assault and family violence matters”:
366 Application of this Division(1) This Division applies to a criminal proceeding (other than a committal proceeding) that relates (wholly or partly) to a charge for—
(a) a sexual offence; or
(ab) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or
(b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person; or
(d) any offences against section 23 or 24 of the Summary Offences Act 1966 if those offences are related offences to an offence specified in paragraph (a), (ab) or (b), despite whether any such related offences are withdrawn or dismissed before an offence against section 23 or 24 of the Summary Offences Act 1966 is heard and determined. Note For committal proceedings see Chapter 4.
(2) This Division applies to a witness in a criminal proceeding referred to in subsection (1) if the witness is—
(a) a person under the age of 18 years; or
(b) a person with a cognitive impairment.
(3) In this Division, witness means a witness referred to in subsection (2).
367 Use of recorded evidence-in-chief
A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section.
368 Admissibility of recorded evidence-in-chief
(1) Subject to subsection (3), a recording referred to in section 367 is admissible as evidence in a summary hearing, special hearing or trial in the proceeding as if its contents were the direct testimony of the witness if—
(a) a transcript of it was served personally on the accused in accordance with section 391, or on the legal practitioner representing the accused in accordance with section 394—
(i) in the case of a summary proceeding, at least 14 days before the contest mention hearing or, if a contest mention hearing is not held, the summary hearing;
(ii) in the case of a trial, at least 14 days before the day on which the trial is listed to commence or, if a special hearing is to be held, at least 14 days before that hearing; and
(b) the court is satisfied that the accused and the legal practitioner of the accused were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of an audiovisual recording, view the recording; and
(c) at the summary hearing, special hearing or trial, the witness—
(i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and
(ii) is available for cross-examination and re-examination.
(2) The admissibility of a recording of the evidence of a person under the age of 18 years is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding.
(3) The court may rule as inadmissible the whole or any part of the contents of a recording and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible.
(4) Subject to this section, a recording referred to in section 367 is admissible in evidence as if its contents were the direct testimony of the witness—
(a) in the proceeding; and
(b) unless the relevant court otherwise orders, in—
(i) any new trial of, or appeal from, the proceeding; or
(ii) another proceeding in the same court for the charge for an offence specified in section 366(1) or a charge for a related offence; or
(iii) a civil proceeding arising from the same facts as those on which the charge for an offence specified in section 366(1) is founded.
(5) The court, by order, may abridge any time fixed—
(a) by or under subsection (1)(a); or
(b) by any order abridging time made under this subsection— if the court considers that it is in the interests of justice to do so.
61Dealing with the first objection, I accept Mr Thomas’ argument that the pre-requisites laid down in s 368(1)(c) of the Criminal Procedure Act cannot now be met at trial because Mr Gilbert has passed away. I disagree with him however, that s 65(3) of the Act does not provide a separate pathway to admissibility. My reasons are as follows.
62Section 366(1) states that Division 5 of Part 8.2 of the Criminal Procedure Act applies to a criminal proceeding other than a committal proceeding. A note at the end of s 366(1) states: “For Committal Proceedings see Chapter 4”.
63Chapter 4 provides a code regulating committal proceedings. Relevantly, where a committal is to be held an informant must serve a hand-up brief on the accused.[16] A hand-up brief must contain “if the committal proceeding relates (wholly or partly) to a charge for … (b) an offence which involves an assault on, or injury or threat of injury to, a person– a transcript of any audio or audiovisual recording of the kind referred to in section 367, if the informant intends to tender the transcript at the committal hearing”.[17] The witness may be cross-examined at committal if the court grants leave to do so.[18]
[16] Criminal Procedure Act 2009 (Vic) s 107(1).
[17] Criminal Procedure Act 2009 (Vic) s 110(a)(vi).
[18] Criminal Procedure Act 2009 (Vic) s 124.
64Section 130 of the Criminal Procedure Act sets out the procedure for witnesses giving evidence in committal proceedings. Section 130(1) defines “recording” as “an audio or audiovisual recording of– (a) the evidence-in-chief of the witness or (b) the compulsory examination of the person under section 106– a transcript of which was served in the hand up brief”.
65Section 130(3) states:
130 Giving of evidence by witnesses
(3) If the Magistrates' Court grants leave under section 124 to cross-examine a witness, the evidence-in-chief of the witness must be confined to the witness identifying himself or herself (in a manner consistent with section 131) and attesting to the truthfulness of the statement or the contents of the recording, unless the Magistrates' Court gives leave under subsection (4) or (5).
66There is no issue that the procedure I have described above was followed in Mr Stetco’s committal proceeding. Mr Gilbert gave evidence in conformity with s 130(3) and was cross-examined. That procedure operates independently of Division 5 of Part 8.2 of the Criminal Procedure Act. There was nothing irregular about the use of that procedure. I reject the contention that the “statutory pre-conditions to the admissibility of the VARE set out in s 368(1)(c) continue to have effect” so as to exclude the VARE at trial. It seems to me that submission does not account for s 65(3) of the Act.
67Section 65(3) and (6) are in the following terms:
(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied—
(a) cross-examined the person who made the representation about it; or
(b) had a reasonable opportunity to cross-examine the person who made the representation about it.
…
(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by—
(a) the person to whom, or the court or other body to which, the representation was made; or
(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c) the person or body responsible for producing the transcript or recording.
68There is no issue that Mr Gilbert was thoroughly and competently cross-examined at committal. The pre-requisites for engaging s 65(3) were therefore satisfied. Indeed, as I remarked to Mr Thomas, in stark contrast to what occurred in Snyder v The Queen,[19] here the complainant was cross-examined in a manner that might be thought to have been appropriate at trial, more so than at committal. For example, there is a fair amount of puttage in the cross-examination. Unlike in Snyder, no question arises as to the competency of the committal cross-examination.
[19] [2021] VSCA 96 (‘Snyder’).
69It seems to me that there can be little question that s 65(3) is engaged and would, subject to the objections considered below, render the identified representations in the VARE together with the committal cross-examination admissible.
Cognitive impairment
70A separate objection raised by Mr Thomas asserted that Mr Gilbert was not cognitively impaired as required by s 366(2) of the Criminal Procedure Act. As I have indicated, it seems to me that s 65(3) of the Act provides a separate pathway to admissibility irrespective of Division 5 of Part 8.2 of the Criminal Procedure Act. Even so, if I was wrong as to that conclusion I will deal with the arguments advanced as to whether the VARE procedure ought to have been used at all in the circumstances of this complainant.
71Mr Thomas accepted that there was some evidence to the effect that the complainant had suffered from a bipolar disorder and that disorder could fairly be characterised as a mental illness. However, he submitted that the mere fact that a person might suffer from a mental illness does not in itself amount to cognitive impairment. So much can be seen in that the definition of cognitive impairment in s 3 of the Criminal Procedure Act refers to impairment “… because of mental illness…”.
72It was submitted that there was no, or insufficient, basis to conclude that Mr Gilbert was cognitively impaired on 16 October 2017.
73In response to this argument, Mr Cameron relied upon some additional evidence from Leading Senior Constable Wade Andrews who made a statement on 7 April 2021 and gave evidence on a voir dire.
74Mr Andrews started working on this case on the morning of 16 October 2017. As part of his briefing, he learned that a blister pack of medication used to treat a bipolar illness had been located in Mr Gilbert’s home. Mr Andrews checked Mr Gilbert’s LEAP (Law Enforcement Assistance Program) history and noted that he had been taken to hospital by police after he had threatened suicide in December 2015. The note indicated, “Gilbert has a long history of mental illness”.
75Police contacted the complainant asking him to attend Kyneton police station. He refused to do so and seemed erratic over the phone. Mr Andrews thought that Mr Gilbert was likely a “fragile witness and require(d) a more personalised service from police”.
76Police went to the complainant’s home at about 11am that morning and spoke with him in person. He said he suffered from depression and bipolar. Mr Andrews noted that the house was a mess and there was a large number of alcohol bottles, both empty and full, about the house. He thought that Mr Gilbert was dependent on alcohol although he claimed that he had not had anything to drink.
77Mr Andrews said that Mr Gilbert’s behaviour, his demeanour and appearance were consistent with someone who had a mental illness. Mr Andrews had trouble understanding Mr Gilbert, who did not appear to listen or understand what was being asked of him. He gave confusing answers, did not seem to be able to concentrate and struggled to tell a story in a coherent fashion. Mr Andrews had been trained in sexual offence investigation and part of that training involved making assessments as to whether it was appropriate to use the VARE procedure. He thought it was appropriate in the case of this witness.
78Mr Andrews did not have any contemporaneous substantive notes of his observations of Mr Gilbert on the morning of 16 October 2017. The observations set out in his statement of 7 April 2021 were based on memory and he had used a document titled “Responding To A Person Who May Have A Cognitive Impairment” to prompt his memory as to what he had noticed about Mr Gilbert.
79He noted that Mr Gilbert was displaying the following indicators of cognitive impairment:[20]
· He was having difficulty expressing himself;
· He was distracted and unable to concentrate;
· He was failing to make eye contact;
· He appeared confused and disoriented;
· He appeared out of touch with reality; and
· He was having difficulty remembering facts and details.
[20] See Exhibit B on the Voir Dire.
80During cross-examination of Mr Andrews on the voir dire, large sections of the audio-visual recording of the statement were played in court. Counsel put to Mr Andrews that it was plain watching the recording that Mr Gilbert had no difficulty understanding the questions being asked of him, that he was able to articulate his answers well and that he appeared in no way confused or disoriented. Moreover, he answered responsively and was able to provide a clear and coherent narrative. He did not come across as at all manic; indeed, he spoke calmly in measured tones.
81In short, there was nothing about the witness’s presentation which in any way suggested the indications of mental illness that Mr Andrews said he had noticed when he dealt with the complainant at his home that morning.
82In response, Mr Andrews suggested that the VARE procedure had “worked”, and this was a good example of how effective recording evidence can be as distinct from the clunky process involved in taking a typewritten statement.
83On the application, Mr Cameron also relied on a statement from a psychologist, Ms Daniella Boxall, who had treated Mr Gilbert during the period 6 December 2018 to 12 September 2019 and had seen him on 19 occasions. Ms Boxall stated that Mr Gilbert provided a history in which he said he’d been diagnosed with bipolar disorder when he was 32 years of age and that he also suffered from anxiety in addition to some serious chronic physical illnesses.
84After the incident the subject of these charges, she states that Mr Gilbert experienced symptoms of post-traumatic stress disorder as well as higher-than-usual levels of anxiety, stress and depression and panic attacks. It is not clear, however, that he suffered from those difficulties before the incident. At the end of her statement, Ms Boxall stated:
“…it is not possible for me to answer if Mr Gilbert had a cognitive impairment as a result of his mental health conditions or physical illnesses, or both”.
Consideration
85Stripped to its essentials, Mr Thomas’s argument is that Mr Gilbert was not cognitively impaired and therefore his recorded statement could not be used as his evidence-in-chief at trial as authorised by s 367 of the Criminal Procedure Act.
86Section 366(2) stipulates that the Division applies to a witness in this type of criminal proceeding “if the witness is … (b) a person with a cognitive impairment.”
87The onus to establish that the evidence comes within the provision falls on the party seeking to adduce the evidence – in this case, the prosecution.
88Section 3 of the Criminal Procedure Act defines “cognitive impairment” in the following terms:
cognitive impairment includes impairment because of mental illness, intellectual disability, dementia or brain injury.
89The points to be made about that definition for the purposes of this application are: first, that it is inclusive, and second, that it does not import a standard as to the level of impairment required.
90By reference to dictionary meanings,[21] a person with a cognitive impairment refers to a person whose cognition, that is, their capacity to acquire or possess empirical factual knowledge, is less effective or weaker in some respect. I do not think that a diagnosis from a neuropsychologist is required before the provision is engaged. It seems to me that it encompasses a wide spectrum of impairment from quite severe to very mild.
[21] New Shorter Oxford English Dictionary (4th ed, 1993).
91It is to be remembered also that the context in which this provision appears is clearly directed to providing witnesses who may be at a disadvantage a better prospect of providing their account in a manner which does them justice. That context justifies according the provision a wide meaning.
92There is nothing to stop investigators utilising the recording procedure for the purposes of taking a witness statement. I readily accept that Mr Gilbert was likely a fragile witness and someone who needed to be treated with care and understanding. It makes sense for his statement to have been taken as a recording in a less intimidating environment. The question raised here, however, is whether the recording can be used as his evidence-in-chief; this in turn is dependent on determining if he was a person with a cognitive impairment.
93There is, I accept, a marked disconnect between the observations Mr Andrews says he made at around about 11am on 16 October 2017 as to Mr Gilbert’s mental state and what can be seen on the audio-visual recording which commenced at 1.27pm. As Mr Thomas was able to demonstrate during cross-examination, none of the indicators of cognitive impairment of which Mr Andrews spoke are apparent on the recording of the interview. Mr Gilbert does not appear to be labouring under any degree of impairment; indeed, his presentation is coherent, articulate and ordered.
94That contrast between Mr Andrews’s description of the complainant at 11am and his presentation on the recording is so great that I find it difficult to accept that the change is simply due to the VARE procedure “working”. There may be other explanations, such as the effect of medication or fluctuations in the symptoms of his condition. There is, however, no evidence of such possible explanations and they can be no more than speculative.
95Despite the differences highlighted by Mr Thomas, I am nevertheless satisfied that Mr Gilbert was a person with a cognitive impairment when he participated in the VARE. The fact that he was apparently able to provide a coherent and reasonably articulate account is not inconsistent with having a cognitive impairment.
96There is no requirement that the impairment be operative at the time of the VARE. The impairment may be subtle, its symptoms may be very mild or fluctuate. Indeed the impairment may not be apparent at all. The statute simply provides that the witness be “a person with a cognitive impairment”. In my view it is a relatively low threshold to overcome.
97The fact is Mr Gilbert suffered serious chronic physical illnesses, he had a history mental illness, he was the subject of an incident the previous day in which he had sustained some significant injuries and, even allowing for a level of exaggeration, he appeared mentally unwell to police when they visited his house that morning. According the provision the wide ambit I think it should be given, I find that Mr Gilbert’s overall condition and presentation rendered him a person with less effective or weakened cognition – i.e. he could fairly be characterised as a person with a cognitive impairment. It follows that the use of the VARE procedure as evidence-in-chief would be authorised by s 367 of the Criminal Procedure Act.
Discretionary exclusion
98Mr Thomas contended that I should exercise the Haddara discretion to exclude the committal evidence. Alternatively, if it was not excluded, then the Crown should not be permitted to use of the video-recorded statement as the complainant’s evidence-in-chief but rather read the evidence in, or play the audio recording.
99As to the cross-examination at committal, Mr Thomas argued that whilst the complainant was asked in brief terms about his mental health diagnosis, the issue of how that illness affected him was not explored. That lost opportunity constituted a significant unfairness. Some parallels could be drawn with the decision of the Court of Appeal in Luna v The Queen[22] where some prejudice flowed to the defence because it was not aware of the psychiatric condition of the complainant at the time of committal cross-examination.
[22] [2016] VSCA 10.
100With respect to the alternative submission, a video recording is likely to have much greater impact than might be expected from the reading of the statement or an audio recording. The effect is likely to be immediate and powerful. It was submitted that if the committal evidence were to be admitted, considering that the accused was already at a significant disadvantage in that he cannot cross-examine the complainant at trial, it would compound that unfairness, to the point of compromising the fairness of the trial as a whole, to permit the prosecution to use the video-recorded statement as evidence-in-chief.
101Mr Thomas relied on the following statement from Winneke P in R v Knigge:[23]
“…courts should be astute to the fact that such technology, and the legislation which facilitates its use in criminal trials, has a capacity to distort the adversarial aspects of the criminal justice system which the common law rules of criminal procedure regarded as indispensable to a fair trial.”[24]
[23][2003] VSCA 94.
[24] Ibid [30] (Phillips and Chernov JJA agreeing).
102Mr Cameron submitted that the accused had ample opportunity to cross-examine the complainant at committal. Indeed, an extensive cross-examination was conducted which included puttage and allegations that the complainant had lied. Mr Cameron also submitted that Mr Gilbert’s evidence “can still be challenged at trial by the accused calling his own evidence if he elects to do so.” There was therefore no basis for discretionary exclusion.
Consideration
103The admission of an important witness’s evidence where the witness is not available for cross-examination at trial is not a particularly exceptional event. Santamaria JA’s judgment in Bray v The Queen[25] demonstrates that is so. What is required is an assessment as to whether the admission of the evidence in the particular circumstances of the case would render the trial unfair, taking into account the capacity of the trial judge to give appropriate and strong directions to ameliorate unfairness and alert the jury to the dangers of giving too much weight to untested statements.[26]
[25] [2014] VSCA 276, [81]–[100] (Maxwell P and Weinberg JA agreeing).
[26] See also Snyder.
104Provided clear and strong directions are given to alert the jury to the potential unfairness to the accused of not having the complainant cross-examined before them, I am not satisfied that the trial would be unfair such as to justify the exercise of the Haddara discretion. I am more confident in that conclusion than I might otherwise be, having regard to the calibre of the cross-examination at committal. To the extent that there may be deficiencies, this can be made clear to the jury as part of the warning they are given pursuant to ss 31(a) and 32 of the Jury Directions Act 2015.
105I am, however, more receptive to Mr Thomas’s argument relating to the playing of the video-recorded evidence. Having watched the recording, I accept that as a whole it conveys a powerful narrative. As I perceive it, there would likely be an imbalance in playing to the jury the audio recording of cross-examination at committal after showing them the complainant’s VARE, bearing in mind that there can be no trial cross-examination.
106It seems to me that a fairer presentation of the evidence to the jury would be achieved by playing the audio recording of the complainant’s VARE and then the audio recording of the committal cross-examination. The jury, subject to the parties’ views and the view of the trial judge, might also be given the respective transcripts of each part of the evidence to follow along as they listen. That solution seems to me to address the forensic disadvantage of which Mr Thomas complains whilst at the same time juxtaposing the evidence on what I would regard as more equal terms, serving to ameliorate some of the disadvantage flowing from the fact that Mr Gilbert is unavailable at trial.
107Accordingly, whilst I have found the VARE admissible together with the committal cross-examination, I would direct that both components of the evidence be adduced by playing the audio recording to the jury.
Photoboard identification
108On 7 November 2017, as part of his investigation, the informant, Senior Constable Adam Gornowicz, compiled a photoboard containing the photograph of a then-suspect, Michael Fernandez. He included 11 other photographs of males who looked similar to Mr Fernandez, placing his image at number five on the photoboard. Later that day, Mr Gilbert was shown that photoboard but was unable to identify anyone, stating, “None of them ring a bell”.
109On 29 January 2018, Mr Gornowicz showed Mr Gilbert a different photoboard containing 12 images. The accused’s image was placed at number five. Mr Gilbert identified the image marked as number five and stated, “That’s him, 100% that’s him”.
110The second photoboard the subject of this application appears at page 363 of the Depositions.
111As indicated, Mr Gilbert’s statement of 29 January 2018 was tendered at committal and would be prima facie admissible given my ruling with respect to the admissibility of the committal evidence. However, Mr Thomas challenged the admissibility of the photoboard on an additional basis. He submitted that some of the photographs, particularly images 10, 11 and 12, suggest that they are pictures of persons in police custody. He relies on s 115 of the Act, the relevant terms of which are as follows:
115 Exclusion of evidence of identification by pictures
(1) In this section, picture identification evidencemeans identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
(2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.
...
(10) In this section —
(a) a reference to a picture includes a reference to a photograph; and
(b) a reference to making a picture includes a reference to taking a photograph.
112Mr Cameron opposed the application, arguing there was nothing irregular about the compiling of the photoboard or the procedure adopted in showing it to the complainant. He particularly relied on the decision of the Victorian Court of Appeal in Pace & Another v The Queen.[27]
[27] [2014] VSCA 317 (‘Pace’).
113The informant made an additional statement dated 30 April 2021 about this issue and gave evidence on the voir dire.
114He stated that he created the photoboard using what was called the Victoria Police “iFace” program. He took a still image of the accused from the video recording of the record of interview conducted on 25 January 2018. That still image became image number five on the photoboard and it was uploaded to iFace, which automatically generated 11 other images from Victoria Police databases. Those databases included images from what was called “eJustice” (police custody and station attendance photographs), licensing and firearms, as well as divisional intelligence units.
115Mr Gornowicz explained that several of the images automatically generated by the program showed people holding up police attendance sheets. He remove those images and selected additional photographs to fill those spots.
116In cross-examination, the witness was asked whether he had turned his mind to the possibility that images 10 and 12 were wearing prison greens. He responded that he had not specifically done so. As to image eight, it was suggested that the person depicted looked nothing like the accused. The witness disagreed and suggested that the person was sufficiently similar to the accused given the shape of the eyebrows and the bridge of that person’s nose. He said he wasn’t totally reliant on the program and that he would make the final selection for inclusion in the board.
117Finally, the informant indicated that it was essentially a coincidence that each of the suspects from the first and second photoboards shown to the complainant were placed at position number five.
118In argument, Mr Thomas accepted that the reasoning of the Victorian Court of Appeal in Pace provided a high hurdle for him to overcome. In that case, the picture identification evidence concerned photographs contained in a photobook kept for police use. It was argued that the numbers appearing at the foot of the photographs indicated that the people concerned were in police custody. One photograph showed a height scale and another was accompanied with the words “Footscray – confidential”. It was also suggested that the “uniformity” of the photographs suggested that they were of people in police custody.
119The Court of Appeal took the view that the photographs the subject of that application did not suggest objectively that the males depicted in the photos were in fact in police custody. Even if viewed with a cynical eye, there was nothing individually or in combination that suggested that the pictures were of persons in police custody.
120Despite Mr Thomas’s able arguments, I take a similar view of these photographs. There is nothing inherent in the images which suggests the persons photographed are in police custody. To an experienced criminal lawyer examining the images carefully, image number 10 and image number 12 could raise the possibility that the subjects are in custody because they are wearing clothing resembling prison greens, but one only sees a very small amount of the top of the clothing and the relatively poor quality of the photograph prevents one coming to any sort of conclusion, or even making an educated guess. To suggest otherwise is to engage in speculation.
121Section 115 is really directed to preventing the “rogues’ gallery effect”, and I do not see this photoboard as suffering from that vice. As best as I can determine, a layperson looking at this board would not conclude that the images show or even suggest that the persons depicted are in police custody.
122I am not persuaded that all or any of the photographs in the photoboard suggest that they are pictures of persons in police custody.
123It follows that the photoboard is not caught by s 115(2) of the Act and it is therefore admissible.
124The use of the photo identification evidence can, at the request of counsel, be the subject of a warning to the jury alerting them to the potential dangers associated with this type of evidence. In my view a carefully fashioned direction to address the concerns raised by Mr Thomas would deal with any possible unfairness or unfair prejudice that might otherwise raise the possibility of discretionary exclusion.
Conclusion
125For the above reasons I rule that:
(a) Representations 1, 3 and 4 made to Leading Senior Constable Taylor may be adduced at trial. Representation 2 is inadmissible.
(b) The complainant’s evidence at committal comprising his two statements including his VARE and cross-examination may be adduced at trial. However, only the audio recording of the VARE and not the video recording may be adduced. The VARE audio recording and the committal cross-examination audio recording may be adduced, together with, if appropriate, the transcripts of those recordings.
(c) The photoboard shown to the complainant on 29 January 2018 is admissible.
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