Director of Public Prosecutions v Tan (Ruling No 1)
[2023] VSC 296
•2 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0366
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JOON SEONG TAN | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 & 28 April 2023 |
DATE OF RULING: | 2 May 2023 |
CASE MAY BE CITED AS: | DPP v Tan (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 296 |
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CRIMINAL LAW — Evidence — Murder — Relevance — Hearsay — Application by prosecution to lead hearsay evidence — Sections 65(2)(b) and (c) relied upon — Application opposed — First representation not relevant — Second representation admissible pursuant to s 65(2)(c) — Evidence Act 2008 ss 55, 56, 59, 65(2)(b) & 65(2)(c).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J McWilliams | The Office Of Public Prosecutions |
| For the Accused | Mr G Hughan | Stary Norton Halphen |
HER HONOUR:
Mr Tan is charged with the murder of Ju Zhang at Epping on 1 February 2021. The prosecution seek to lead hearsay evidence consisting of a number of statements made by the deceased prior to her death. A notice of hearsay evidence (‘Notice’) was filed pursuant to s 67 of the Evidence Act 2008 (‘the Act’). Mr Hughan on behalf of the accused objects to the admissibility of two of those statements.
The prosecution case
The deceased, Ju Zhang, was 33 years old at the time of her death. She was also known as Kelly. In 2021, she was living at 1 Winchester Avenue, Epping with her son Jack, aged eight. She remained on friendly terms with her ex-husband, Jack’s father, who supported the deceased and visited Jack once or twice a fortnight. The deceased was described by those who knew her as a caring mother and a good friend.
The accused was 35 years old at the time of the alleged murder. He had arrived in Australia in March 2017 on a bridging visa and had been employed as a plasterer and in other manual jobs. In February 2021 he was living at 8 Woodland Street, Doncaster together with flatmates.
On 1 January 2021, the deceased and accused met online and began dating. They quickly became boyfriend and girlfriend, and the accused would occasionally refer to the deceased as his ‘wife’. The deceased’s good friend, Ms Chi, was aware of the relationship and had met the accused on a few occasions.
Sometime in January 2021, the accused told a friend that he believed the deceased was cheating on him. He said he was going to use tracking and listening devices to see if she was being unfaithful. There is no evidence or suggestion that the accused ever did this.
On 28 January, Tzu-Hao ‘Eric’ Hung saw an online advertisement posted by the deceased seeking to meet new friends. He responded and they started chatting online. On 30 January, the accused, Ms Chi, Ms Chi’s daughter and the deceased were all at the deceased’s home. At around 8pm the deceased asked the accused to leave and then invited Mr Hung to the house to play cards. Mr Hung arrived at 10:50pm in his red Mercedes Benz. He stayed for about three hours before leaving for work at around 2am on Sunday 31 January. Ms Chi and her daughter stayed the night. On 31 January, the accused spent the day in the company of the deceased and Jack. In the evening, the deceased asked the accused to leave her house earlier than usual, claiming it was because Jack had school the following day and she needed to get him ready. At approximately 7pm, the accused left and drove to Doncaster. The deceased then arranged for Mr Hung to visit.
Mr Hung arrived at the deceased’s home at around 10pm and parked his red Mercedes in the deceased’s carport. At 10:17pm the accused left his Doncaster address and drove to Epping, arriving at around 10:48pm. At this time, Mr Hung’s red Mercedes was parked in the carport of the deceased’s home address. The accused remained in the area for a short time before driving back to Doncaster at around 11pm, arriving home at around 11:30pm. Mr Hung stayed the night at the deceased’s home.
On Monday 1 February, Mr Hung left the house early as the deceased did not want her son to see him. At 8:55am the deceased called her friend Ms Chi and told her she preferred Mr Hung to the accused. At around 9:30am, the accused arrived at the deceased’s home where, according to the prosecution, they appeared to argue. After about 10 minutes the accused left and returned to work.
Throughout the day of 1 February, the deceased and Mr Hung were communicating via WeChat. She arranged for him to visit later that night. At around 5pm, the accused arrived at the deceased’s home where she was preparing dinner. Shortly after, the accused, the deceased and Jack sat down together and ate dinner. During this time, the deceased sent several messages to Mr Hung, including telling him that she was cooking dinner and would save him some, and he should come around that night. The last message was sent at 5:57pm and this was the last telephone communication anyone received from the deceased. At 7:12pm Ms Chi called the deceased’s mobile but the call went unanswered.
It is the prosecution case that the accused became aware that the deceased was communicating with another man, or seeing another man, and, perhaps, intending to leave him. This resulted in an argument between the accused and the deceased, during which the accused killed the deceased, intending to either kill her or cause her really serious injury. The killing occurred sometime around 6pm. The accused then set about cleaning up his crime.[1]
[1]The accused’s post offence conduct is set out in more detail in my subsequent ruling concerning incriminating conduct, DPP v Tan (Ruling No 2) [2023] VSC
At around 9:20pm he enlisted a friend, Mr Chan, to help him dispose of the deceased’s body. Mr Chan arrived at approximately 10:25pm. The accused said to Mr Chan, ‘I had an argument with my girlfriend. I saw her bringing back other guys three or four times. I am so pissed. We had an argument then had a fight. I killed her by accident.’ The accused also asked Mr Chan whether he had seen a red Mercedes outside when he arrived, and that the Mercedes belongs to the guy his girlfriend is seeing. The accused told Mr Chan to hurry up and find a rubbish bin, wait until the kid (Jack) has gone to sleep, and drive to somewhere for rubbish collection so it won’t be found. Mr Chan was scared. He told the accused he would look for a bin, left the house and did not return.
The accused then disposed of the deceased’s body in a wheelie bin. The bin was collected on the morning of 2 February and the contents emptied into landfill.
On the morning of 2 February, the accused contacted Ms Chi and told her the deceased had disappeared. At around 5pm, the accused met with Ms Chi and Mr Zhu, the deceased’s ex-husband, at the deceased’s home address. All three then attended at the Epping Police Station to report the deceased missing. Ms Chi assisted the accused with translating as the accused has very limited English. The accused provided an account stating that, at approximately 5:30pm, the deceased left the address via the front door wearing only a pink dressing gown and silky pyjamas with her mobile phone. She did not take any other personal effects, keys or a wallet and she did not return that night.
The accused made a statement to police on 4 February and gave a similar, but not identical, account of how the deceased left the home. On 7 February, he was arrested and interviewed over the alleged murder of the deceased, and again stated the deceased had left the house and not returned. He denied any wrongdoing. He was released without charge on 8 February, and his passport was retained by police. He was subsequently arrested on 10 February and further interviewed, wherein he continued to deny the offending. He was charged with murder and remanded into custody.
Following extensive investigations, police correctly identified the Wollert Landfill site as the potential location of the deceased’s body. On 18 June 2021, the body of the deceased was found. Dr Parsons performed an autopsy examination on 19 June. The body had sustained multiple crush and sharp force injuries, and the cause of death was ‘unascertained’. Of significance were multiple sharp force injuries to the chest area which had the appearance of stab and incised wounds. There was a sharp force injury to the pericardium (the sac that encloses the heart) with altered blood in keeping with the injury having occurred during life. A number of ‘through and through’ stab wounds consistent with defensive type injuries were identified on both arms of the deceased.
The defence case
The accused denies the charge of murder. The defence position is that the accused was not involved in Ms Zhang’s disappearance or death. The accused maintains that the deceased left the home at around 5 or 6pm on 1 February 2021, and that is the last he ever saw of her.
The hearsay evidence of Ms Chi
Ms Chi made a statement to police on 6 February 2021 with the assistance of a Mandarin interpreter. At this point, the deceased was still missing and the accused had not been interviewed or charged with murder.
Ms Chi said she had been friends with the deceased for five or six years. They normally see each other once a week and have contact every day. She described the accused, who she knew as ‘Sam’, as Kelly’s current boyfriend. They had been together for about one month and she met Sam for the first time in mid‑January. She had met him a further three or four times since, prior to the deceased going missing. Ms Chi said the deceased did not have any other boyfriends but she did chat with other men online. One of the men she chatted to was Mr Hung. Ms Chi detailed the events of the night of 30 January, when she was at the deceased’s house with her daughter. She said the accused was also at the house but the deceased asked him to go home so she and Ms Chi could talk. The deceased said ‘That’s okay’ and left around 7 or 8pm. Later that night, the deceased invited Mr Hung to come over and play poker. She could not recall what time he arrived but that was the first time Mr Hung met the deceased. Mr Hung went home in the middle of the night and Ms Chi stayed the night.
Ms Chi said that, on 1 February 2021, the deceased told her that she wanted to date Mr Hung and not the accused. The deceased told her that she and Mr Hung had been messaging each other and flirting. Ms Chi said the deceased was very happy last they spoke, and had told her that Mr Hung was going to have dinner with her at her house that night. Ms Chi asked, ‘What are you going to do with Eric?’ and the deceased said, ‘It depends how Eric treats me’. They spoke about whether Eric would be good at sex and the deceased said she wanted to find out tonight, meaning the night of Monday 1 February. This was the last time Ms Chi spoke with the deceased.
Much of the evidence of Ms Chi, including what the deceased told her, is not objected to. The disputed evidence consists of two representations.
The first representation as expressed in the Notice is: ‘That the accused deliberately ejaculated in her vagina without her permission, and that she was angry as a result’. The parties agree the words ‘deliberately’ and ‘without her permission’ should be deleted. In her statement, Ms Chi states that she is not sure exactly when, but the deceased and accused had sex. She said when they had sex, Sam came inside her vagina and the deceased was very angry about this. The deceased asked Ms Chi to get the pills for her the next morning to stop her from getting pregnant. Ms Chi said that after this time, the deceased treated Sam quite badly.
The second representation as expressed in the Notice is: ‘The accused had been accessing her mobile phone and reading her messages’. In her statement, Ms Chi said that the deceased told her that Sam had been going through her phone. The deceased did not know how the accused unlocked her phone. She believed he had read her messages. She said the accused knows she is flirting with other boys, and he asked her not to flirt with other boys and just to stay with him.
At the s 198B examination, Ms Chi said the deceased told her about both these events — that is, that the accused ejaculated in her vagina and she was angry, and the accused had accessed her mobile phone and read her messages — at the same time. She was asked whether the deceased had told her when the events occurred, and Ms Chi answered ‘Recently, but I don’t know which day. But recently’. Ms Chi stated she was told about both events in a telephone conversation, which occurred around 27 or 28 January 2021.
The prosecution submit the hearsay representations form part of the evidence detailing the relationship between the accused and the deceased. They submit the evidence is relevant and admissible as an exception to the hearsay rule pursuant to s 65(2)(b) and/or s 65(2)(c) of the Act.[2]
[2]All references to section numbers are a reference to the Evidence Act 2008 unless otherwise stated.
The defence object to the first representation on three bases: one, it is not relevant. Two, it does not come within a recognised exception to the hearsay rule. Three, if the first two hurdles are cleared, the evidence should be excluded pursuant to s 137 of the Act. The defence object to the second representation on the basis that it does not come within a recognised hearsay exception.
Prosecution contentions
The first representation
Dealing with the first representation, the prosecution argue that what the deceased said to Ms Chi is relevant. It was a relatively significant occurrence in the context of her relationship with the accused, and marks the beginning of when the relationship began to decline. Thereafter, Ms Chi observed that the deceased was demonstratively angry with the accused and less affectionate to him. It is the Crown case that the deceased was intending to leave the accused to be with Mr Hung, but the accused was very invested in the relationship. The prosecution argue this is an important piece of evidence which assists the jury to understand the trajectory of the relationship, and which ultimately led to different views between the accused and the deceased as to the future of the relationship. This ultimately resulted in a confrontation on 1 February, during which the accused murdered the deceased.
The prosecution submit the deceased is clearly unavailable. Mr McWilliams argued that the relationship was only one month old, so axiomatically the facts intended to be communicated by the relevant representation must have occurred ‘no more than one month away from the representation being made’, and ‘that alone ought to be enough to dispose of the first limb of s 65(2)(b)’. He argued ‘shortly after’ must have some work to do, and that based on the evidence given by Ms Chi at the s 198B examination, the event had occurred ‘recently’, meaning within a matter of days or perhaps a week prior to the deceased telling Ms Chi about it.
The prosecution submit the circumstances make it unlikely the representation was a fabrication. Mr McWilliams relied on the nature of the relationship between the deceased and Ms Chi, and the frequency with which they communicated. He argued they are close friends who could reasonably be expected to confide openly, honestly and truthfully with one another. There is no evidence the deceased ever recanted the statement or gave another version of the events. There could be no advantage to the deceased to fabricate these matters. The deceased was sober and of sound mind at the time she made the statements.
Turning to s 65(2)(c), the prosecution submit the same circumstances that make it unlikely that the representation is a fabrication, also make it ‘highly probable’ that the representation is reliable.
As to s 137, the prosecution submit the nature of the relationship between the deceased and the accused is of real importance. The evidence must be seen in context, and the event explains the nature and dynamics of the relationship. The sexual act was consensual and it will not be suggested otherwise. It forms a small part of the evidence, and to the extent there is a risk of prejudice to the accused, it can be cured by judicial direction if the defence request such a direction, or the Court considers it should be given.
The second representation
The prosecution submit this evidence is relevant as it shows the accused was aware, or at least suspicious, that the deceased was flirting with or seeing other men. Mr McWilliams relied ‘faintly’ on s 65(2)(b), but more strongly on s 65(2)(c). He relied on the same arguments as to why the evidence should be admitted as an exception to the hearsay rule as he did when dealing with the first representation.
The defence contentions
The first representation
The defence argue the evidence is not relevant. The jury are being asked to decide whether the accused caused the death of Ms Zhang, and if he did so with murderous intent. Whether or not the accused ejaculated inside her vagina, and whether that was done with or without her permission at some time anterior to 1 February, could not affect the jury’s rational assessment of whether the accused murdered Ms Zhang. The defence accept that the event marks a turning point in the relationship, but what if anything caused the change is not relevant.
Mr Hughan argues if the evidence is relevant, it does not come within s 65(2)(b) as the temporal requirement is not satisfied. Mr Hughan relies on a number of authorities, including Williams[3] and Huici v The King.[4] He argues the statement was not made in circumstances of spontaneity or under the proximate pressure of the event, but rather it is a narrative of a detached prior event. The Court could not conclude the statement was made ‘shortly after the asserted fact occurred’.
[3](2000) 119 A Crim R 490); [2000] FCA 1868.
[4][2023] VSCA 5.
Mr Hughan submits s 65(2)(c) is not satisfied, as the circumstances relied on by the prosecution do not make it ‘highly probable’ that the representation is reliable. Mr Hughan submits this is a stringent test, and it is not enough for the circumstances to make it ‘likely’ that the representation is reliable. The deceased was not making the statement in circumstances where she understood it could be important in the future, or under any legal requirement to tell the truth. She was just talking to a close friend, and people in such circumstances may be truthful or untruthful, or put a ‘varnish’ on their account that they think will find favour with their friend.
The second representation
Mr Hughan concedes this representation is relevant. However, he argues it does not come within either of the exceptions relied on by the prosecution. Mr Hughan relies on the same arguments he made concerning the first representation.
Legislation and legal principles
Relevance
The principal facts in issue in this trial are whether the prosecution can prove the accused was the person who killed the deceased, and if so proved, whether he did so intending to either kill or cause really serious injury to the deceased.
Pursuant to s 55(1) of the Act:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 55 sets a low threshold for the admission of evidence. The evidence may be of weak probative value but relevant. The words, ‘if it were accepted’, require relevance to be determined on the assumption that the tribunal of fact will accept the evidence. This excludes considerations of reliability or weight. The test is one of logical relevance, and the challenged evidence must be looked at in the context of the acts alleged and matters in dispute. Common sense must be used when deciding questions of relevance.[5]
[5]DPP v Paulino (2017) 54 VR 109, 114 [19]; [2017] VSCA 38, [19] (Weinberg JA).
Section 137
Section 137 states:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The onus is on the accused to persuade the trial judge that the danger of unfair prejudice of the evidence outweighs its probative value.[6] ‘Probative value of evidence’ is defined in the Act’s dictionary to mean, ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.
[6]R v Polkinghorne (1999) 108 A Crim R 189, 197-198 [51].
Hearsay
The admissibility of hearsay evidence is governed by Part 3.2 of the Act. In summary:
·The rule against hearsay is contained in s 59 and states:
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2)Such a fact is in this Part referred to as an asserted fact.
·Both ‘representation’ and ‘previous representation’ are defined in the Act’s dictionary.
·The definition of ‘representation’ is very broad. It includes written and oral representations, and representations to be inferred from conduct.
·In determining whether ‘it can reasonably be supposed’ that the maker of the representation intended to assert the fact(s), the court may have regard to the circumstances in which the representation was made.[7]
·The test of whether evidence is hearsay is purposive, and only prohibits intended assertions. If the purpose of adducing the evidence is to prove the existence of the fact(s) asserted by the representation, then it is hearsay and inadmissible unless it comes within one of the exceptions contained in Division 2 or Division 3 of Part 3.2.
[7] The Act, s 59(2A).
Section 62 operates as a gateway provision. It restricts the exceptions contained in ss 63‑66A, of Division 2 of Part 3.2, to first-hand hearsay. The maker of the previous representation must have personal knowledge of the asserted fact. Pursuant to s 62(2):
A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the asserted fact.[8]
[8]‘Personal knowledge’ for the purpose of s 66A is further defined in s 62(3).
Section 65 relevantly states:
(1)This section applies in a criminal proceeding if a person who made a 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)…
(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probable that the representation is reliable;
…
The s 65(2)(b) exception is based on the common law res gestae exception. The word ‘when’ in s 65(2)(b) requires strict contemporaneity between act and representation.[9] Section 65(2)(b) creates a ‘lower bar’ to admissibility than s 65(2)(c), but unlike s 65(2)(c), the exception has a temporal requirement. The representation must be made ‘when or shortly after the asserted fact occurred’. The temporal requirement ‘shortly after’ permits of some delay between the occurrence of the asserted fact and the representation, but ‘shortly after’ must still have work to do.
[9]R v Bond (Ruling No. 4) [2011] VSC 536, [7] (T Forrest J).
The phrase ‘shortly after’ has been considered in a number of authorities.[10] In Williams v The Queen,[11] the Full Court of the Federal Court considered the temporal requirement of s 65(2)(b) and stated:
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.[12]
[10]See, for eg, R v Mankotia [1998] NSWSC 295; Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204.
[11](2000) 119 A Crim R 490; [2000] FCA 1868.
[12]Ibid 502, [48].
Section 65(2)(c) imposes a higher threshold — or more stringent test — for the admission of hearsay evidence than s 65(2)(b).[13] Both exceptions require the Court to have regard to the ‘circumstances’ in which the relevant representation was made. The meaning of ‘circumstances’ as used in both sub‑sections was considered by the Court of Appeal in Thomas (a pseudonym) v DPP.[14] Having reviewed various authorities, the Court stated:
Thus the ‘circumstances’ to be considered in the application of s 65(2)(b) can include previous, or subsequent, statements or conduct of the person who made the representation, to the extent to which they reflect on the reliability of the circumstances of the making of the particular hearsay representation, but not if they do no more than tend to address the asserted fact.[15] [citations omitted]
[13]Thomas (a pseudonym) v DPP [2021] VSCA 269, [13].
[14]Ibid [26] ff.
[15]Ibid [32].
While the Court was dealing with s 65(2)(b), the comments apply equally to s 65(2)(c). The time period between the event and the representation is a relevant circumstance, not only for the purpose of ascertaining whether the representation was made ‘when or shortly after the asserted fact occurred’ (as required by s 65(2)(b)), but also when considering the reliability of the circumstances in which the representation was made.[16]
[16]Ibid [43], [49], [54], [58].
Analysis
As the High Court in Sio v The Queen[17] (‘Sio’) made clear, it is not appropriate to view all the statements made by the representor (here, the deceased) and form an overall impression of general reliability. That compendious approach is not permitted under the legislation.[18] The Act directs attention to each particular representation that asserts a relevant fact sought to be proved. It is therefore necessary to consider each representation in turn.
The first representation
[17](2016) 259 CLR 47.
[18]Ibid 63,[51]. The High Court was considering the exception created by s 65(2)(d), however their comments make clear that the ‘compendious approach’ is not permitted when considering any of the exceptions created by s 65 of the Act.
The relationship evidence supports the Crown case that there was a catalyst for a conflict between the deceased and the accused. The deceased was messaging and flirting with other men, and Mr Hung had spent the night of 31 January 2021 at her house. Having been asked to leave earlier in the evening, the accused had driven from Doncaster to Epping and waited in the area, before returning to Doncaster. Thus, the prosecution will argue, it may be inferred he had seen Mr Hung’s red Mercedes parked in the driveway. The accused had also accessed the deceased’s phone messages, and learned she had been messaging other men. These matters led to the argument on 1 February, during which the accused killed the deceased.
The accused’s admission to Mr Chan provides strong support for this proposition. When asked by Mr Chan why it happened, the accused said he regretted it and it was an accident. He said, ‘we argued and I killed her’. The prosecution will invite the jury to reject the suggestion that this was an ‘accident’, but otherwise rely on this admission by the accused that he killed the deceased. Additionally, the evidence of Mr Cheang, one of the accused’s flatmates, is that the accused started seeing the deceased in January 2021. After a week or two, the accused told him he suspected the deceased was cheating on him.
I accept that this evidence concerning the nature of the relationship between the accused and the deceased is relevant. It provides a motive, or reason, as to why the accused may have been jealous and angry with the deceased on the night in question. It explains the act charged, and places the alleged murder in its proper context. It rebuts any suggestion that the relationship was one of close affection, and the accused would have no reason to kill the deceased.
However, it does not follow that every incident in the history of the relationship is relevant. There is no suggestion that as at 1 February, the accused and deceased were arguing over what occurred when he ejaculated into her vagina. It is not alleged that the accused was angry with the deceased for yelling at him about this matter, or bore her any animosity as a result. According to Ms Chi, the deceased told her of this incident, and that the accused had been through the deceased’s phone, in the same conversation. It was after this that Ms Chi observed the deceased to treat the accused quite badly, including yelling at him and bossing him around. Thus the change in attitude by the deceased to the accused can be adequately explained without reference to this incident.
In my view, the evidence that the deceased told Ms Chi that the accused ‘came inside my vagina’, and she was very angry and yelled at him about it, could not rationally affect (directly or indirectly) the assessment of the probability of whether the accused killed the deceased, and if so, whether he killed her with murderous intent. The evidence does not provide a motive or reason for the killing. It does not assist a jury to determine whether the accused in fact killed the deceased. It does not provide necessary context or background. It is not relevant and therefore not admissible.
The second representation
The intended purpose is a hearsay one. The asserted fact that the prosecution seek to prove is that the accused had accessed the deceased’s phone and read her messages.
Dealing first with s 65(2)(b). It is convenient to refer to what Bongiorno JA said in Azizi v The Queen[19] (‘Azizi’). In that case, the applicant was convicted of murdering his wife. The prosecution case was he had struck her more than once on the day she died, and thereafter strangled her with a scarf. The defence was a combination of self‑defence and accident. At trial, the prosecution proposed to lead evidence from four witnesses to prove the applicant had a tendency to inflict physical violence on, or act in an abusive manner towards, the deceased during their marital relationship. The proposed evidence was both hearsay and tendency, and notices were filed. The defence objected, but in argument appeared to conflate questions of hearsay, relevance and admissibility.[20] The trial judge ruled that all the material was admissible. The applicant appealed on the basis the evidence was wrongly admitted.
[19](2012) 224 A Crim R 325; [2012] VSCA 205.
[20]Ibid 330 [22].
On appeal, the Crown conceded that at least some of the hearsay and tendency evidence should have been excluded. The Court considered a number of representations. ‘Representation 3’ was made by the deceased in a telephone call to her sister about a month before her death. Ms Abid, the sister, said the deceased told her that her life was not very good, it was very bad, it is all happening again, she was thrown out of the house two times, the applicant is beating her and she will not give him another chance. The Crown relied on s 65(2)(b). Bongiorno JA stated it was difficult to see how s 65(2)(b) could apply. His Honour stated:
In order to enliven s 65(2)(b), there must be evidence before the Court to enable a judgment to be made as to the temporal connection between the occurrence of the asserted fact and the making of the representation. With respect to Representation 3, there is no evidence as to when the asserted facts occurred relative to the representation being made so that the question of whether there were circumstances that made it unlikely that the representation was a fabrication does not need to be considered. Section 65(2)(b) cannot be applied to this representation so as to render the hearsay rule inapplicable to it without some evidence as to whether the representation was made at the time of or shortly after the events described occurred. Absent that evidence, s 65(2)(b) cannot be applied.[21]
[21]Ibid 336 [47].
His Honour observed that the witness appeared to be describing ‘a situation rather than an event’, and ‘there does not appear to be any spontaneity in the statements attributed to her and there is no indication as to when the events she is said to have described occurred.’[22]
[22]Ibid 336 [46].
Here, Ms Chi was told the information in a conversation on 27 or 28 January 2021, and her evidence was that the event itself had happened ‘recently’. That may mean that days, a week or even longer had elapsed between the event itself and the deceased making the representation to Ms Chi. The evidence does not permit me to conclude that the representation was made ‘when or shortly after’ the asserted fact occurred.
Turning to s 65(2)(c). The phrase, ‘made in circumstances that make it highly probable that the representation is reliable’ creates a stringent test. It may be contrasted with the language employed in s 65(d)(ii), which provides that the representation must be ‘made in circumstances that make it likely that the representation is reliable’. Clearly, s 65(d)(ii) sets a lower bar than s 65(2)(c).
There are a number of relevant circumstances which bear upon the question of whether it is ‘highly probable’ that the representation is reliable. The deceased and Ms Chi were close friends, and the evidence shows the deceased shared intimate and personal information with Ms Chi. The deceased told Ms Chi a number of things about her relationship with the accused, and not only things that portrayed the deceased positively and the accused negatively. For example, the deceased told Ms Chi that she was not in love with the accused, but liked his money and that he cleaned her house. She said she didn’t really want to have sex with him, but did it so he would keep paying for things. These disclosures suggest Ms Chi and the deceased had an honest and frank relationship.
The deceased had no reason to lie or embellish, or mislead her friend Ms Chi. She was not drug or alcohol affected. She did not suffer from any physical or mental illness or other issues that would have impacted her reliability. The event about which she spoke had occurred recently, in circumstances where she was still seeing the accused. This was a simple, uncomplicated narrative, made to a close friend who she communicated with multiple times a day.
As to the suggestion that the deceased was not under any obligation to tell the truth, such as when a person is making a statement to a police officer, it is apposite to refer to what was noted by Refshauge ACJ and Penfold J in Munro v R:[23]
[T]here 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 a risk of prosecution if he or she does not do so, is sufficient to satisfy the test in s 65(2)(c) … [as] it is clear that imposing a legal obligation on a person to tell the truth does not always work.[24]
[23][2014] ACTCA 11.
[24]Ibid, [5]-[6].
Of course, s 65(2)(c) is concerned with reliability, not truthfulness, however the point remains that making a statement in circumstances where the maker is under a legal obligation to be truthful does not necessarily make that statement more reliable. That matter is just one circumstance to be taken into account.
In my view, the overall circumstances in which the representation was made make it highly probable that the representation is reliable.
Conclusion
The first representation is not relevant pursuant to s 55 and therefore not admissible pursuant to s 56(2).
The second representation is hearsay and admissible pursuant to s 65(2)(c).
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