DPP v Lo (Ruling No 2)
[2018] VSC 148
•29 March 2018
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | NOT RESTRICTED |
S CR 2017 0114
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YU TUNG LO |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12, 14-16, 19, 22, 26, 28 February, 1, 8, 15 March 2018 |
DATE OF RULING: | 29 March 2018 |
CASE MAY BE CITED AS: | DPP v Lo (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 148 |
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CRIMINAL LAW – Ruling – Hearsay objection- representations made by deceased - Whether relevant – Whether admissible for non hearsay purpose or hearsay purpose – Whether admissible under s 65(2) Evidence Act – Whether liable to exclusion under s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg Ms M Sylianou | Office of Public Prosecutions |
| For the Accused | Mr M Cahill SC Ms K Rolfe | Paul Vale Criminal Law |
HER HONOUR:
The factual background to this ruling has been canvassed in my earlier ruling. As mentioned in my earlier ruling the central issue in the trial is Lo’s complicity with the shooter AB and whether she intentionally encouraged, assisted or directed the shooting of Hogan which occurred on 24 May 2016 at around 8.12 am.
I am now asked by the parties to rule on three items in the Crown’s Hearsay Notice dated 24 November 2017. Those items are items 2, 3 and 4.
Item 2: Paul said, ‘Tracy had picked up a knife and told me she was going to stab him with it’. This comment was reportedly made by the deceased Paul Hogan to his former girlfriend Danielle Phelan on the late afternoon or evening of 18 May 2016 over the telephone.
Item 3: Paul said to me, ‘Tracy picked up a knife and told me “shut the fuck up or I’ll stab you”. Paul pointed to a knife that was sitting on the kitchen bench‘. This comment was reportedly made to the former co-tenant of the deceased, Peter Hughes, on the morning of 19 May 2016 in the unit where they both lived.
Item 4: Paul said, ‘Sorry about all that noise last night, she was telling me she wants to leave so I got her some boxes to chuck her stuff in, then she changed her mind and didn’t want to leave’. This comment was reportedly made by the deceased to Peter Hughes on the morning of 22 May 2016 at the unit where they both lived.
In addition to the Hearsay Notice, Ms Borg in her oral argument submitted that the three hearsay representations were admissible for a non-hearsay purpose. Whether admitted for a non hearsay purpose or as an exception to the hearsay rule pursuant to ss 65(2)(b) or (c) Ms Borg argued that the three items of evidence were relevant relationship or context evidence.
The Crown Notice specifies the following:
Notice is hereby given pursuant to s 67 of the Evidence Act 2008 that the prosecution intends to adduce Hearsay Evidence, that is evidence of a previous representation by a person to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
The name of the person who made the previous representation is Paul Kristian Hogan.
The factual basis on which the prosecution contends that the Representor is unavailable to testify is as follows: the person is the victim in this matter and is now deceased.
The provisions of the Act setting out the relevant exceptions to the rule against Hearsay on which the prosecution intends to rely are:
S 65(2)(b)
S 65(2)(c).
The Crown argued that the evidence encompassed by the three disputed items was relevant evidence of relationship, or context bearing on the issues in the trial which turn on whether the accused Lo intended that Paul Hogan be killed by AB. It transpired that the Crown relied on the relationship evidence as being relevant in two ways. Firstly, as showing the fractious and contrary nature of the relationship between Hogan and Lo in the lead-up to the murder, including Lo’s expressive behaviour within that relationship and secondly, as showing Lo’s hostile state of mind towards Hogan and her motive to want him killed in the lead up to and at the time of the murder.
The Crown referred to other evidence in the trial showing the extent of Lo’s frustration with Hogan, her complaints about him to co-workers, friends and to AB including Lo saying in some of those communications that she wanted him dead.
The Crown submitted that the representations by Hogan to the witnesses, Phelan and Hughes, conveying that Lo had uttered a threat to Hogan with a knife, should be considered in combination with other similar evidence of a troubled relationship and of Lo's hostile state of mind and motive for wanting Hogan killed. The evidence of a threat to stab Hogan was said to strengthen the suggestion that Lo did in fact intentionally procure AB to kill the deceased. This submission was more squarely a submission about Lo’s state of mind and motive for complicity in the murder than the narrower submission that the evidence was relevant to show a troubled or fractious relationship between the couple and Lo’s expressive behaviour within that relationship.
The Crown also argued that the representation by Hogan to Hughes on 22 May 2016, that he got out boxes on the previous night because Lo told him that she wanted to leave but then changed her mind, was relevant to proof of the nature of the relationship between Lo and Hogan and relevant to their intentions in the days leading up to the murder. It fitted with the things Hughes heard the night before and what he saw of the boxes the next morning when Hogan made the representation. This submission was therefore more narrowly cast and was not aimed at establishing a motive for the murder. It went to the complex and seemingly contradictory nature of the parties behaviour at a time very proximate to the murder.
The Crown submitted that each of the three items constitute first-hand hearsay.
The Defence objected to each of the three items of evidence on the basis that firstly they are not relevant, and secondly that they are not first-hand hearsay and so do not fall within the first-hand hearsay exceptions provided for by ss 65 (2)(b) and (c) of the Evidence Act 2008 referred to in the Hearsay Notice.
Alternatively, the Defence submitted, if the representations of Hogan are found to be first-hand hearsay, the requirements of ss 65(2)(b)and (c) have not been met.
Finally, the Defence submits that if the evidence is admissible under s 65(2)(b) or (c) or any other hearsay exception, it should be excluded under s 137 of the Act because of the unfair prejudice to the accused that would flow from the evidence being before the jury in her trial outweighing the probative value of the evidence.
The Defence accepted that relationship evidence may be relevant in a criminal trial where the issues include whether the accused intended that the deceased be harmed. But the Defence submitted that regarding the stabbing threat there was a paucity of other evidence prior to the point of time of that alleged representation of the accused saying she wanted the deceased to be harmed or making threats to him.
The Defence also submitted that the disclosures by Hogan to Hughes and Phelan of the stabbing threat were not sufficiently proximate to the murder, being almost a week earlier, rendering the threat of little relevance as relationship evidence even if led to show to the fractious and complex nature of the relationship. It was also submitted that there is no shortage of other evidence confirming the fractious nature of the couple’s relationship. The evidence was not relevant to proof of Lo’s hostile state of mind or motive for the murder nearly a week later.
Mr Cahill also drew attention to the inconsistency in the alleged timing of Hogan conveying the information about Lo’s threat in that Phelan referred to Hogan telling her of the threat on Wednesday 18 May 2016 saying it happened the previous night, 17 May 2016, whereas Hughes spoke of being informed by Hogan on the morning of Thursday 19 May saying that the incident occurred the night before being the night of 18 May 2016.
As to Hogan’s comments to Hughes about the boxes, Mr Cahill submitted that what Hogan said that Lo said, about wanting to move out but changing her mind, had insufficient relevance to the proceeding and was not relevant relationship evidence.
The Defence submitted in respect of all three items of evidence that even if Hogan's representations about Lo’s words and conduct were relevant relationship evidence, the Crown were implicitly seeking to rely on the three items of evidence for a hearsay purpose to prove the truth of what Lo actually said and did, (represented) and that the present case is not one where the representations are admissible for a non-hearsay purpose under s 60.
It was further submitted that since the evidence was not first-hand hearsay, ss 65 (2)(b) and (c) could not be relied on by the Crown to render the hearsay items admissible.
The Defence pointed out that the Evidence Act 2008 gives a broad definition to representations in the part of the act which deals with hearsay, defining ‘representation ‘ in the dictionary to the act as follows:
Representation includes—
(a) an express or implied representation (whether oral or in writing); or
(b) a representation to be inferred from conduct; or
(c)a representation not intended by its maker to be communicated to or seen by another person; or
(d) a representation that for any reason is not communicated.
The Act’s Dictionary definition of 'previous representations' includes representations that are made otherwise than in the course of giving evidence in the subject proceedings, encompassing within the definition previous out of court statements or representations made by a person to be adduced from another person (the witness).
The Defence argued that it is Lo’s representations to Hogan that are at the core of the Hogan representations encompassed in items 2, 3 and 4. Despite the Crown now advancing the suggestion that the evidence is also able to be adduced for a non-hearsay purpose relevant to proof of relationship or context, it was submitted that the Crown was really seeking to adduce the hearsay representations to prove the truth of what Lo represented to Hogan. Mr Cahill submitted that the Crown’s Hearsay Notice made it plain that they relied on Hogan’s utterances for their truth; for items 2 and 3 that at the time of making the threat, Lo was in fact prepared to or wanting to stab the deceased and for item 4, that she was saying to Hogan that she wanted to leave but then changed her mind and did not want to leave.
Turning to s 65(2) there was no dispute from the Defence that Hogan’s representations to Phelan and Hughes were made by a person who is not available to give evidence since he is now deceased.[1] But it was submitted that the gateway for admission of the hearsay evidence of the unavailable witness if led in a criminal proceeding to establish the truth of the fact asserted in the representation, is that it be classifiable as first-hand hearsay.
[1]The Dictionary to the Evidence Act in Part 2 section 4 dealing with unavailability of persons lists a person who is dead as a person who is taken to be unavailable to give evidence about a fact. Hogan therefore falls within a category of unavailable witness covered by s 65 (2) of the Act.
Mr Cahill referring to the wording of s 62(2) submitted that a hearsay representation sought to be adduced from a witness must be a ‘firsthand’ observation of the representor, based on something the representor had personal knowledge of, or saw, heard or otherwise perceived but not based on a representation made by another person about the fact.
Therefore, it was submitted that the Crown could not lead Lo’s representations by words or conduct to Hogan, 'second-hand' through Phelan or Hughes.
The Defence allowed that an aspect of item 4 might be able to be led by the Crown, that Hogan apologised to Hughes for the noise the night before and said he had been getting some boxes out, to the exclusion of what Hogan told Hughes that Lo said (she was going to pack up and leave that night but then changed her mind).
In DPP v Asling (Ruling No 2) Kaye JA ('Asling') set out the order for approaching certain disputed items of hearsay evidence in that case:
(1) Is the evidence relevant to a fact in issue?
(2) Is the hearsay evidence, sought to be adduced, first hand hearsay?
(3)Does the evidence come within any of the exceptions to the hearsay rule relied on by the prosecution?
(4)For the purpose of s 137 of the Act, is the probative value of the evidence outweighed by the danger of unfair prejudice to the accused if the evidence were admitted?
As to relevance, evidence is relevant pursuant to s 55 of the Act if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Section 56 of the Act renders relevant evidence admissible except as otherwise provided by the Act.
In this case before me the Defence argued that the disputed items of evidence have a low probative value or are simply not relevant. The Crown contended otherwise.
Dealing with the first way the Crown relied on items 2 and 3 (the stabbing threat made on 17 or 18 May 2016) as relevant evidence of the fractious and complex nature of the relationship between Lo and Hogan in the lead-up to the murder in circumstances where Lo and Hogan co-habited for little more than three weeks. During that short period they are said by the Crown to have shared a highly volatile relationship. Depending in part on further exclusionary rulings that may be sought, the evidence reveals that Lo had at some stage shared a sexual relationship with Hogan, that she shared his home and his bed in the Maddingley premises, that Hogan found her an agricultural job to help her with her work visa, drove her to work most mornings, that he went on social outings with her such as to the circus with his children, that he took her to Sovereign Hill for an outing on the weekend prior to the murder, letting her drive his van on the way back. Hogan arranged for the marriage celebrant to attend the house and the couple signed a document evincing an intention to marry the night before Hogan was shot. On the other hand, witnesses observed the couple yelling at one another, or heard verbal abuse uttered by both Hogan and Lo towards one another or about one another over the short period that Lo lived with Hogan at the Maddingley address. Hughes overheard frequent verbal arguments and witnessed a struggle between Hogan and Lo over custody of her mobile phone after the marriage celebrant had left the house on the night before the murder. The mobile phone is said to have contained messages in which Lo gave AB necessary identification information that he would need in order to fulfil Lo’s wish that Hogan be killed. The jury needed a more complete picture of the volatile and fractious nature of the relationship including Lo’s active participation in that volatility to meet the Defence case that Lo was the victim of abuse by Hogan in the lead up to the murder.
Going to the second way that the Crown argued that the stabbing threat was relevant, Ms Borg argued that Lo’s threat to stab the deceased was consistent with other threats of harm or hostile statements uttered by Lo to Hogan or about Hogan in the lead-up to the murder. She cited cases such as Wilson, Anderson and Gojanovic, where verbal representations of the deceased complaining about abuse to witnesses were permitted to be led as a form of state of mind or motive evidence.
I have reached the conclusion that items 2 and 3 (the alleged stabbing threat) have probative value relevant to a fact in issue in the proceeding, being the fractious and volatile nature of the relationship between Lo and Hogan in the days leading up to the murder of Hogan by AB. Whether the evidence is also admissible as going to Lo’s state of mind or motive touching on the issue of complicity in the murder is not so easily resolved. For reasons which will become apparent later, I have determined that the stabbing threat is not evidence of motive relevant to the acts relied on by the Crown as showing complicity in the murder of Hogan.
Regarding Hogan’s representations about what Lo said and did about moving out of his home on 21 May, I consider this evidence is relevant to the fractious and complex nature of the relationship and to giving explanatory context to the observations made by Hughes at the time Hogan made the representations.
I will now consider whether the 3 items of evidence are admissible for a non-hearsay purpose or as an exception to the hearsay rule under s 65(2)(b) or (c).
The Evidence Act 2008 provides the primary exclusionary rule for hearsay evidence:
Section 59. The hearsay rule—exclusion of hearsay evidence
(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.
(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
The notes to s 59 provide a list of exceptions to the basic exclusionary rule[2] including evidence relevant for a non-hearsay purpose (s 60) and first-hand hearsay in criminal proceedings if the maker of the representation is unavailable (s 65). Other first-hand hearsay exceptions include inter alia contemporaneous statements about a person’s health etc (section 66A) admissions (section 81) character of and expert opinion about an accused’s evidence (sections 110 and 111).
[2]See Note 2 to s 59.
It has been observed by the authors of the textbook Uniform Evidence in Australia[3] that the concept of proof of the existence of a fact asserted indicates the purposive nature of s 59 bringing focus to what the maker of the representation intended to assert. It is only if the evidence is led to prove that which the maker intended to assert, that the rule against hearsay is invoked. Therefore, ‘the inquiry is about what the person who made the representation intended to assert by it’.[4]
[3] Williams, Anderson, Marychurch and Roy (1st edition) 222.
[4] Citing Lee v R (1998) 195 CLR 594.
In considering the s 59 exclusionary rule and applying it to the case at hand, the rule would prevent a witness from giving evidence of Hogan's representation about Lo's threats to stab him, to prove that which it can reasonably be supposed that Hogan intended to assert by the representation, namely that Lo did in fact threaten to stab him, unless the evidence could be adduced under one of the first-hand hearsay exceptions. Similarly, it would prevent Hogan’s representation that Lo wanted to leave then changed her mind if led to prove the truth of that statement unless admissible as a first-hand hearsay exception.
However, the evidence of Hogan’s representations might otherwise be admissible for a non-hearsay purpose under section 60 of the Act.
The full text of s 60 relating to evidence relevant for a non–hearsay purpose is as follows:
S 60 Exception—evidence relevant for a non-hearsay purpose
(1)The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2)This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).
Note
Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.
(3)However, this section does not apply in a criminal proceeding to evidence of an admission.
Note
The admission might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay—see section 82.
In deciding whether particular evidence is admissible for a non-hearsay purpose or a hearsay purpose or both, consideration must be given to what use the Crown seeks to make of the evidence.
Examples of evidence led for a non-hearsay purpose may include admissions, prior consistent or inconsistent statements adduced for credibility purposes, evidence of words spoken or representations made where the evidence is led to prove the fact of what was said within a particular context or to show something about the event, or to explain a sequence of events, (sometimes referred to as a testimonial fact) regardless of the truth of the representation. Evidence which sheds light on the nature or evolution of a personal relationship at a particular point may fall within this category especially if significant aspects of the relationship would otherwise be obscure.
In Subramanian v Public Prosecutor,[5] the accused was held by the Privy Council to be entitled to lead evidence of threats made by terrorists to the accused forcing him to join in with them, because the evidence of what was said to him was relevant to his Defence of duress, and not adduced to prove that the threats made by the terrorists were in fact true. The threats were relevant because they operated on the mind of the accused and explained his subsequent conduct.
[5][1956] 1 WLR 965.
In cases where evidence is led for a non-hearsay purpose, it may be incidental whether or not the evidence also establishes the truth of the representations. The effect of s 60 is that evidence led for a non-hearsay purpose becomes admissible as to the truth of the fact asserted. However, s 136 of the Act may be invoked to apply a limitation on the use of the evidence if necessary to avoid unfair prejudice to the accused.
I must consider whether Hogan's representations to Phelan and Hughes as to Lo’s threat to stab him are admissible for a non-hearsay purpose to show the fractious volatile and complex nature of Hogan’s relationship with Lo less than a week before the murder, which was such as to cause Hogan to tell Phelan and Hughes that Lo had threatened to stab him, regardless of whether Lo did in fact make the threat. It should perhaps be borne in mind that in telling Phelan of Lo’s threat, Hogan said he laughed at Lo in response to the threat.
There is merit in the submission that in the circumstances of a very short, but highly volatile relationship in which Hogan and Lo each behaved in seemingly contradictory ways, it is relevant for the jury to have before it evidence of Hogan confiding about the volatility of the relationship to people he trusted, regardless of the truth or otherwise of the threat. In this sense the evidence about the threat is admissible for a non-hearsay purpose.
I must also consider whether the items 2 and 3 are also admissible for a hearsay purpose under s 65(2). I will deal with this below.
As to item 4, the comments made by Hogan to Hughes about having got out the boxes on the night before the morning of 22 May because Lo wanted to move out, but that she then changed her mind, provides relevant context as to the contrary nature of the couple’s relationship at a time very proximate to the occurrence of the murder. It shows the seemingly contradictory features of the conduct of each of Hogan and Lo towards each other over the course of this short but volatile relationship. It is also helps explain and give context to Hughes observations as to what was going on in the household on the night before when he heard certain noises and the following morning when spoke to Hogan and saw the removal boxes. The evidence about Hogan’s explanation for the noise and the boxes is therefore admissible for a non hearsay purpose.
Are the three items of evidence admissible for a hearsay purpose as outlined in the Notice, to prove in respect of items 2 and 3 that Lo did in fact threaten to stab Hogan, and item 4 to prove that Lo did in fact say she was leaving and then changed her mind?
The Crown supported the relevance of the stabbing threat for a hearsay purpose on the same grounds as it was sought to be led for a non-hearsay purpose firstly to shed light on the volatile nature of the relationship between Hogan and Lo in the lead up to the murder, and secondly in proof of Lo’s hostile state of mind and motive to want AB to kill Hogan on 24 May.
The threat to stab Hogan on the night of 17 or 18 May 2016 was said to show just how volatile the relationship had become despite the subsequent outing to Sovereign Hill on 22 May and despite their meeting with a marriage celebrant on 23 May the night before the murder. The Crown case is that Lo expressed building frustration and anger towards and about Hogan in the days leading up to the shooting, which reached a crescendo of urgency on the morning of the murder when she exhorted AB to kill Hogan alleging she had been raped and beaten up the night before. In circumstances where the Defence will suggest that Hogan was controlling and abusive, evidence that Lo had threatened to stab Hogan is relevant to provide a more complete picture of the relationship between Hogan and Lo and to rebut a suggestion that Lo was a passive victim of abuse by Hogan.
The Crown also argued that proof that Lo threatened to stab Hogan on 17 or 18 May showed Lo’s animosity towards Hogan several days before the murder and was evidence of motive.
Having considered the purposes for which the Crown seek to adduce the evidence I am not prepared to allow the Crown to rely on items 2 and 3 as evidence of Lo’s hostile animus or motive for complicity in the murder. This is not a case where such evidence is necessary to rebut accident or self-defence or to rebut the suggestion of an amicable and peaceful relationship. The evidence is however admissible to show the extent of the fractious and volatile relationship in the week prior to the murder and Lo’s active contribution to that volatility, allowing a more complete picture of that relationship in light of the Defence response that Lo was a victim of abuse by Hogan. If admitted for this purpose a warning may be required to be given to the jury under s 136 as to the limitations on the use of the evidence, that it could not be used for tendency purposes or in proof of motive.
The representation in Item 4 about Lo changing her mind about leaving, if led for a non-hearsay purpose, to make sense of Hughes direct observations of the behaviour of each of Hogan and Lo and to show the complex and contradictory nature of their relationship is relevant to show that Lo was not being prevented from leaving by Hogan on the night of the 21 May 2016. This ties in with other evidence from AB and from phone communications that AB had offered to collect Lo the night before the shooting, while Hogan was at work but Lo declined that option, and that Lo had other alternatives available to her other than remaining in the household with Hogan on the night before the murder. The evidence is therefore relevant whether led for a hearsay or non hearsay purpose.
I now turn to consider whether the three items of evidence are first-hand hearsay and whether they are admissible as first-hand hearsay exceptions.
Division 2 – ‘First-hand’ hearsay:
62. Restriction to ‘first-hand’ hearsay
(1)A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(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 fact.
(3)For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
In the case before the Court, if the two representations made by Hogan to Phelan and Hughes about the stabbing and the further representation about the boxes are proffered for a hearsay purpose, is what is sought to be adduced from them as to Hogan’s representation ‘a previous representation made by another person about the fact,’ that other person being Lo? If so, each of the three representations would not meet the requirements for admission under Division 2 of Part 3.2 of the Evidence Act.
In Asling Kaye JA determined that an item of evidence relied on by the Crown was unable to be classified as first-hand hearsay.
In that case the Crown notice included as item one:
The prosecution has given notice, pursuant to s 67 of the Evidence Act 2008 (‘the Act’), that it intends to adduce hearsay evidence of a number of representations made by Blewitt to witness P.
Blewitt was deceased and was an ‘unavailable’ witness. The evidence was that sometime after the murder of Jason Moran, in the course of a conversation at the Clare Castle Hotel, Blewitt told witness P that Williams wanted the deceased Kinniburgh dead. Blewitt allegedly made that remark sometime after Kinniburgh and Lewis Moran walked into the hotel. The Defence contended and his Honour agreed that the statement was inadmissible and clearly not first-hand hearsay.
His Honour said the following (at paragraph 35):
Senior counsel for Asling submitted that the bare knowledge by Blewett of Williams’ wish to kill Kinniburgh is not relevant. He submitted that, in reality, the prosecution was seeking to adduce the evidence in order to prove that Williams himself did wish to have Kinniburgh killed. However, as pointed out, the evidence, to that effect, is second hand hearsay, and therefore not admissible pursuant to s 66A or s 65(2)(c)... The submissions made on behalf of the accused are correct.... Insofar as the prosecution seeks to adduce the evidence to prove Williams’ intentions or state of mind towards Kinniburgh, it is plainly not first-hand hearsay.
However Hogan’s representation about a threat by Lo to stab him is qualitatively different to Blewitt passing on William’s representation that he wanted Kinniburgh dead. In the case of Hogan’s representation about the threat, he was asserting something of which he had personal knowledge, that he saw, heard or perceived, namely that Lo had threatened him with a knife. He was not merely recounting a fact that Lo had told him.
I therefore have reached the conclusion that the threat to stab Hogan is first-hand hearsay and that I must consider whether it is rendered admissible under s 65(2)(b) or (c).
As to the representation by Hogan concerning Lo’s statements when he got the boxes out, whilst I am satisfied that this representation is admissible for a non-hearsay purpose, I am not satisfied that it is first-hand hearsay, in circumstances where Hogan merely reported what Lo said. In those circumstances I will not undertake a complete s 65 (2)(b) and (c) analysis of this item of evidence, although I note that if item 4 were able to be characterised as first-hand hearsay it would, in my view, be likely to meet the criteria in s 65(2)(b) given the circumstances in which it was made.
The relevant first–hand hearsay exceptions relied on by the Crown are set out in s 65:
65 Exception—criminal proceedings if maker not available
…
(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; or
(c)was made in circumstances that make it highly probable that the representation is reliable; or
(d)was —
(i)against the interests of the person who made it at the time at which it was made; and
(ii)made in circumstances that make it likely the representation is reliable.
Focusing on the stabbing threat, as conveyed to Phelan and Hughes, the Crown bears the onus of bringing the evidence within the hearsay exceptions provided for by the Act. In Sio v The Queen[6] the High Court stated that s 65:
requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.
[6][2016] HCA 32 at [57].
The Court also said:
Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable – and the asserted fact likely to be true – notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that “the dangers which the rule seeks to prevent are not present or are negligible in the circumstances.”[7]
[7]Ibid [63].
In discussing the kinds of circumstances that might bear on reliability, the High Court approved the interpretation given to s 65(2)(c) of the Act by the New South Wales Court of Criminal Appeal in R v Ambrosoli (‘Ambrosoli’). It was there decided that the provision requires attention to be given to the circumstances of the making of the representation in order to determine the likelihood of its reliability, but that: “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”. The Court in Ambrosoli said attention must be focused on the circumstances affecting the unlikelihood of fabrication in respect of (b) and the high probability of reliability in respect of (c), rather than the reliability of the asserted fact.
In his ruling in Asling Kaye JA referred to and reviewed the cases of Conway v The Queen,[8] Williams v The Queen,[9] Ambrosoli,[10] Harris v The Queen,[11] and Azizi v The Queen[12] and previous judicial interpretation of 65(2)(b) and s 65(2)(c). The parties before me also made reference to and relied on Azizi, which in turn refers to a number of these earlier cases.
[8](2000) 172 ALR 185 (‘Conway’).
[9](2000) 119 A Crim R 490 (‘Williams’).
[10](2002) 55 NSWLR 603 (‘Ambrosoli’).
[11](2005) 158 A Crim R 454 (‘Harris’).
[12](2012) 224 A Crim R 325 (‘Azizi’).
I have considered the abovementioned cases, along with various trial rulings in which the application of the hearsay exceptions under s 65(2) has been considered[13] and I conclude that I am entitled to consider circumstances before and after the making of each representation by Hogan in my assessment of each of the disputed items of evidence. This would allow consideration of the fact that Hogan told not only Phelan but also Hughes about the stabbing threat.
[13]Kaye JA in DPP v Asling, (Ruling No 2) 2017 VSC 38 ; Bell J in DPP v Paulino (Ruling No 1) [2017] VSC 343, Schmidt J in R v Walker [2017] NSWSC 997.
Applying the criteria in s 65(2)(b) as to whether the representation of Hogan made to Phelan and Hughes of the stabbing threat was made ‘when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication,’ all of the circumstances attending the making of the representations to Phelan and Hughes must be considered.
The exception under s 65(2)(b) is aimed at capturing representations made soon after the event and under the pressure of the event in circumstances making it unlikely for the representation to be concocted. In Williams the court cautioned against focusing too much attention on temporal proximity and the question whether the asserted fact was likely to be readily recalled, at the expense of giving due consideration to whether it was unlikely to be a fabrication in the circumstances in which it was made.[14] Nevertheless, temporal proximity between the asserted fact and the representation is still integral to the assessment of the likelihood of fabrication.[15]
[14](2000) 119 A Crim R 490 at [48].
[15]Five days was considered too long in the circumstances canvassed in Williams.
Even accepting that a degree of flexibility has been applied to the temporal component of s 65(2)(b), the link between the happening of the event and the representations to each of Phelan and Hughes must be examined to see whether they bespeak an utterance made soon after the asserted stabbing threat whilst still under the pressure of the asserted event in circumstances where fabrication was unlikely.
In my view, the relationship between Phelan, Hogan and Lo as disclosed by Phelan’s statement did not provide Hogan with any obvious motive to invent the threat by Lo. Hogan is said to have told Phelan he wanted her to get along with Lo, and consistent with this the two women went with Hogan and his son to the circus. Hogan was not seeking to have Phelan do anything in respect of the confidence he passed on to her about Lo. In fact he told Phelan that he laughed at her in response to the threat. Although there is an inconsistency between Phelan and Hughes as to whether Hogan experienced the threat on the night of 17 or 18 May, both describe Hogan confiding the threat by reference to it having occurred the night before. In my view, although the representation to Phelan was not made when the asserted fact occurred, it does meet the criteria in s 65(2)(b) of being ‘shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication’.
Similarly, when considering the disclosure to Hughes of the knife threat, there appears to be little apparent motive for Hogan to have invented the threat in circumstances where Hughes showed no signs of wanting to become involved in Hogan’s domestic disputes with Lo. There is no evidence that Hogan was seeking to achieve any particular outcome in telling Hughes about the threat, other than explaining the noise and yelling in the household. The nature of the disclosure is that of confiding an unusual event to a housemate. The disclosure to Hughes was made in circumstances making it unlikely to be a fabrication and was made shortly after the event occurred. The knife threat evidence (items 2 and 3) are admissible under s 65(2)(b).
The requirement in s 65(2)(c) of a high probability of reliability was noted in Conway to be an onerous one,[16] and since it is more difficult to be positively satisfied under s 65(2)(c) that the circumstances in which Hogan spoke about Lo to Phelan or Hughes were such as to make it highly probable that the representation about was reliable I decline to admit the evidence of the knife threat evidence under s 65(2)(c).
[16]Although the requirement for temporal proximity is absent from (c).
In the course of oral submissions the Crown added another possible ground for inclusion of the evidence, being the hearsay exception captured by s 66A but no detailed argument was propounded to support this submission. Under s 66A the health or feelings, sensations, intention, knowledge or state of mind of the maker of the representation must be directly relevant to a fact in issue in the proceeding.
The Defence argued that s 66A does not render the three representations admissible because Hogan’s representations were not a contemporaneous statement by Hogan about his health, feelings or the other matters referred to in s 66A. I do not consider that s 66A has any application to the three items of evidence in contention.
That brings me to the application of s 137 to the three items of evidence.
Mr Cahill submitted that the three items of evidence had low probative value and high prejudicial effect and that the prejudicial effect outweighs the probative value of the evidence. The potential prejudicial effect of items 2 and 3 being the threat to stab Hogan is more apparent than for item 4.
Section 137 mandates exclusion of the evidence if the danger of unfair prejudice of the evidence outweighs its probative value. In assessing probative value I am required to assume that the jury would accept the evidence sought to be admitted and I must take the probative force of the evidence at its highest, accepting its credibility and reliability.[17] I should also consider any directions that may be available to cure any risk of unfair prejudice flowing from the evidence.
[17]IMM v R (2016) 257 CLR 300.
The knife threat is akin to an uncharged act and would need to be subject to a very strong warning against tendency reasoning. There is a risk that despite directions not to use it as tendency evidence or as evidence of animus or motive for the murder that the jury would be inclined to use it in that way. It would be difficult for the jury to put the stabbing threat out of their mind in the peculiar circumstances of this trial. There is a real risk of unfair prejudice resulting from the jury giving too much emphasis to the knife threat in circumstances where the limited purpose of the evidence to prove Lo’s active participation in the fractious relationship will only serve to supplement other similar evidence, such as the observations of Hughes.
On balance the probative value of the evidence is outweighed by the risk of unfair prejudice to the accused. However, this balance may change if the Defence seeks to adduce evidence or go to the jury suggesting that Hogan threatened Lo with a knife, tried to stab or seriously harm her or presented a serious risk to her safety. In such circumstances the evidence may take on a higher degree of probative value such that it should be admitted before the jury.
Regarding evidence about the boxes and Lo’s stated intentions which I have determined is admissible for a non-hearsay purpose the risk of unfair prejudice is much lower. Directions limiting the use of the evidence are capable of meeting the risk of prejudice so I do not think the probative value of the evidence is outweighed by the danger of unfair prejudice.
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