DPP v Madina
[2019] VSCA 73
•21 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0036
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| LENNY MADINA (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the respondents.
S APCR 2019 0037
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| FABIO DOUGLAS (A PSEUDONYM) | Respondent |
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| JUDGES: | PRIEST AP and T FORREST JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 March 2019 |
| DATE OF JUDGMENT: | 21 March 2019 |
| DATE OF REASONS | 4 April 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 73 |
| JUDGMENT APPEALED FROM: | DPP v [Madina and Douglas] (Unreported, County Court of Victoria, Judge O’Connell, 18 February 2019) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Admissibility – Armed robbery and theft from Armaguard vans in 1994 and 2006 – Applicant Madina charged with armed robbery, false imprisonment and related offences – Applicant Douglas charged with theft – Prosecution reliance in each case on hearsay representations of deceased accomplice – Whether trial judge erred in ruling representations inadmissible – Whether representations made in circumstances that make it likely they are reliable – Whether probative value of evidence outweighs the danger of unfair prejudice to the accused – Whether jury directions could adequately ameliorate danger of unfair prejudice – Leave to appeal refused – Evidence Act 2008 ss 59, 62, 65(2)(c), 137 – Sio v The Queen (2016) 259 CLR 47; Asling v The Queen [2018] VSCA 132 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Shaw and Ms J Poole | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondents | Mr P Tehan QC with Mr A V Chernok | Melinda Walker, Criminal Law Solicitor |
PRIEST AP
T FORREST JA:
Introduction
An audacious armed robbery was committed in Richmond on 22 June 1994, in the course of which $2,320,000 was stolen at gunpoint from an Armaguard van by a group of men posing as road workers. The respondent ‘Lenny Madina’ (for convenience, ‘Madina’) faces an indictment in the County Court charging him with armed robbery, false imprisonment and related money laundering offences arising out of this armed robbery.
More than a decade after the armed robbery, on 22 December 2006, $1,105,000 was stolen from another Armaguard van parked at Sunshine Market Place Shopping Centre, Sunshine. The respondent ‘Fabio Douglas’ (for convenience, ‘Douglas’) has been indicted in the County Court in relation to the Sunshine theft.
It is intended that Madina and Douglas will face separate trials in relation to the two indictments. They have each indicated that they will plead not guilty.
Apart from the fact that both sets of offences involved an Armaguard van, an element common to the two proposed trials is that the prosecution has sought to rely in each upon various hearsay statements of a man described as ‘Witness T’, who died in late 2013. The prosecution alleges that Witness T participated in both the 1994 armed robbery and the 2006 theft.
By a notice dated 29 May 2018, given pursuant to s 67 of the Evidence Act 2008 (‘EA’ or ‘the Act’), relying upon ss 65(2)(c) and 65(2)(d), the prosecution flagged its intention in Douglas’ trial ‘to adduce hearsay evidence, that is, evidence of a previous representation by [Witness T] to prove the existence of a fact that it can reasonably be supposed that [Witness T] intended to assert by the representation’.[2] The notice then sets out 15 alleged representations, contained in a statement made by Witness T to an investigator, Detective Senior Sergeant Mark Caulfield, on 6 March 2012.
[2]In the course of the hearing in this Court, counsel for the applicant agreed that, despite the terms of the notice, s 65(2)(c) was not relied upon by the prosecution.
In relation to Madina’s trial, by a notice dated 3 September 2018, also given pursuant to s 67 of the Act, relying only upon s 65(2)(d), the prosecution advised its intention ‘to adduce hearsay evidence, that is, evidence of previous representations by [Witness T] to prove the existence of a fact that it can reasonably be supposed that [Witness T] intended to assert by the representations’. The notice then sets out 47[3] alleged representations, distilled from a variety of sources, including statements made by Witness T to Detective Caulfield on 29 February 2012, 2 March 2012, 23 March 2012 and 24 October 2012; DVD recordings of Witness T’s re-enactments on 12 and 13 March 2012; seven hand-drawn sketches by Witness T; and a statement made by Detective Caulfield on 24 November 2016.
[3]By our count, the notice sets out 47 representations, although the ruling distinctly sets out 45. Counsel for the applicant agreed that nothing turns on this. The representations are to be found in the judge’s ruling, the relevant part of which is set out at [11] below.
On 18 February 2019, having heard full argument, the trial judge refused to admit the hearsay evidence of Witness T set out in both notices under s 65(2)(d); and, on the assumption that his ‘analysis of the s 65(2)(d) application is wrong’, his Honour excluded the evidence under s 137 of the EA (‘the interlocutory decision’ or ‘the ruling’). His Honour then certified in each case pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’) that the evidence ruled inadmissible ‘would eliminate or substantially weaken the prosecution case’.
The application for leave to appeal the interlocutory decision
Based on the trial judge’s certification, in each case the applicant sought leave to appeal against the interlocutory decision. Although there were separate notices relating to each respondent, the two notices contained identically formulated grounds as follows:
1. The learned judge erred in finding that the representations were not made in circumstances that make it likely that they are reliable:
(a) by taking into account the content of the representations;
(b) by making a distinction between representations that identify the accused and representations that do not;
(c) by finding that the evidence as to the relevant circumstances was incomplete in material respects because of claims for public interest immunity;
(d) by finding that much of Mark Caulfield’s evidence qualified or did not support the prosecution submissions;
(e) by finding that several of the circumstances were neutral, marginal, or otherwise did not make it likely that the representations were reliable.
2. The learned judge erred in finding that the probative value of the evidence of the representations was outweighed by the danger of unfair prejudice to the accused.
3. The learned judge erred in finding that no jury directions or warnings could adequately ameliorate the danger of unfair prejudice to the accused so that it did not outweigh the probative value of the evidence.
We pause to note that the first proposed ground of appeal is limited to his Honour’s ruling under s 65(2)(d), and grounds 2 and 3 revolve around his Honour’s conclusions with respect to the application of s 137. We further pause to note two concessions that were made by counsel for the applicant in the course of oral argument. First, counsel conceded that the judge’s ruling, both as it concerned s 65(2)(d) and s 137 of the EA, fell to be determined according to House[4] principles.[5] Secondly, counsel for the applicant conceded that, if the first ground failed, it would be unnecessary for the Court to consider grounds 2 and 3.
[4]House v The King (1936) 55 CLR 499 (‘House’).
[5]The consequence of that concession is that leave to appeal could only be granted if the judge acted upon a wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or if the judge’s decision is unreasonable or plainly unjust. See House, 505 (Dixon, Evatt and McTiernan JJ). See also KJM v The Queen (No 2) (2011) 33 VR 11, 12–13 [9]–[14] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA) (‘KJM’); Singh v The Queen (2011) 33 VR 1, 6–7 [26] (Almond AJA, Buchanan and Bongiorno agreeing); DPP v Marijancevic (2011) 33 VR 440, 444–5 [13]–[16] (Warren CJ, Buchanan and Redlich JJA); Hermanus (a Pseudonym) v The Queen (2015) 44 VR 335, 341 [38] (Priest JA, Maxwell P agreeing).
At the conclusion of oral argument on 21 March 2019, we pronounced orders refusing leave to appeal in each case — as will appear, we did so principally on the basis that the first ground could not succeed — and we indicated that we would provide reasons for those orders in due course. These are our reasons.
The interlocutory decision
In his ruling on the admissibility of the hearsay evidence of Witness T, the judge described the application concerning Madina in the following terms:[6]
[6]Footnotes in original.
14. Early on the morning of 22 June 1994, three Armaguard employees attended at the Reserve Bank in Collins Street Melbourne where they loaded cash amounting to $2,320,000 into the secure section of the van.
15. The three employees then left the Reserve Bank travelling towards the Monash Freeway entrance at Richmond. By 10.20 am that day, the offenders had positioned a white van, witches hats and roadwork signage in Harcourt Parade, Richmond. They were wearing road worker clothing, including helmets and goggles, and, for all intents and purposes, appeared to be preparing to carry out roadworks.
16. As the Armaguard van approached the fake roadwork site one offender holding a stop/slow sign stepped in front of the Armaguard van and stopped it from proceeding. Another offender started up a loud petrol driven grinder on the road next to the offenders’ white van in order to attract the attention of the Armaguard employees and others nearby. Another offender in a Bedford truck took up position behind the Armaguard van to block the view of cars stopped behind it.
17. Two offenders gained entry to the rear door of the van by using a custom-made brass key attached to a blue key tag. Those offenders used a firearm to threaten the Armaguard employees inside the van who were restrained with handcuffs and had bags placed over their heads.
18. The van was driven to nearby Walnut Street in Richmond where the cash bags containing $2,320,000 were transferred to the white van. The offenders left the Armaguard employees secured inside the van and departed the scene.
19. The prosecution case is that the accused [Lenny Madina] was the offender holding the stop/slow sign. The identity of the four other offenders is alleged to be Andrew Clifford, [Fabio Douglas],[7] Paul Babaef and Witness T.
[7][Fabio Douglas] is not Indicted in the 1994 armed robbery matter.
20. A witness who was driving a taxi stopped behind the offenders’ Bedford truck described the man with the stop/slow sign as ‘possibly Greek, not thin or fat, about 35 to 40 years old, with rough skin on his face, big nose and brown rough hair’. A photo-fit image of that person was compiled by the witness.
21. The initial police investigation did not result in charges being laid, however, in 2012 Witness T made a series of statements to police about the armed robbery and engaged in video re-enactments which supplemented those written statements.
22. By its notice of 3 September 2018 under s 67 of the Act the prosecution seek to adduce the following representations made by Witness T in a sworn[8] statement made to Detective Acting Inspector Mark Caulfield on 29 February 2012:
[8]Witness T’s statements were not actually sworn — they were acknowledged to be made in the belief that a person making a false statement would be liable to the penalties for perjury.
(1) He started to associate with [Fabio Douglas] in 1988;
(2) A meeting was arranged for those who were to be involved in the armed robbery;
(3) He attended this meeting at a souvlaki shop on Toorak Road. Present at the meeting were [Fabio Douglas], James Babaeff, Andy Clifford, and the accused, [Lenny Madina];
(4) The group left the souvlaki shop and walked to a park on the South Yarra railway line near Toorak Road. Once they were there, [Douglas] introduced everyone to each other;
(5) [Douglas] then briefed the group about the upcoming job and the group then discussed how they would carry out the robbery;
(6) The group undertook surveillance of a number of Armaguard vans after the vans had left the Reserve Bank;
(7) He [i.e. Witness T] had the idea that they should stop an Armaguard van;
(8) He [i.e. Witness T] was tasked with conducting surveillance on a van from the Reserve Bank and he was provided with either number 907 or 709 by [Douglas];
(9) That Witness T, [Douglas], and Clifford went to an Armaguard yard, where [Douglas] and Clifford removed the lock from a van. The group then had a key cut and then returned the lock to the van. They also disabled the alarms on the van;
(10) [Douglas] gave him three revolvers to hold;
(11)He and Babaeff were to steal cars to be used during the armed robbery, but they were arrested while trying to do so;
(12) As a result of him and Babaeff being arrested and charged the group decided to postpone the armed robbery;
(13) After some time, the group decided to proceed with the plan, although this time they would use roadworks signs to stop the van, and that they would not steal cars to use in the armed robbery but would buy them;
(14) It was also decided to purchase a truck to block the view of the van from other traffic;
(15) It was his task to source the equipment needed to block the road and that he offered to buy the truck;
(16) That he purchased witches hats, rented a warehouse, and purchased a truck, all of which were to be used in the armed robbery;
(17) The accused’s job was to hold the stop sign during the armed robbery;
(18) That his job was to follow the Armaguard van in the purchased truck;
(19) Babaeff was acting as a road worker and Clifford and [Douglas] entered the van armed with pistols using the two keys they had had cut;
(20) He positioned the truck to obscure the view of the Armaguard van and then he moved the truck further to block the view of a taxi;
(21) Babaeff and the accused loaded the white van with the roadwork signs and then drove off;
(22) Everyone met back at the warehouse and the money was divided among the group. Each member, including the accused, took his share of the money, and left the warehouse in turn;
(23) He and the accused got rid of the white van, equipment, and other items linked to or from the armed robbery;
(24) He left his share of the money at Anthony Hookway’s place.
23. The prosecution also seek to adduce the following representations made by Witness T in a sworn statement made to Detective Acting Inspector Mark Caulfield on 2 March 2012:
(25) That 3 to 4 months after the robbery he got a call from Clifford asking when he would be coming back to Melbourne;
(26) He caught up with Clifford and [Douglas] in Melbourne;
(27) That rather than wear gloves during the armed robbery, he had taped his hands with skin-coloured cloth tape. The tape from one finger came off his finger and he had to wipe down the van to ensure that that finger had not left any fingerprints.
24. The prosecution also seek to adduce the following representations made by Witness T in a recorded re-enactment that took place at various locations with investigators on 12 March 2012:
(28) That 61 Lewisham Road, Windsor was the premises of Clifford;
(29) That this (6/210 Toorak Road, South Yarra) is the location of the souvlaki shop that Witness T, [Douglas], Babaeff, Clifford, and [Madina] met at;
(30) [Douglas], Babaeff, Clifford, and [Madina] left the souvlaki shop and walked to a park on the South Yarra railway line near Toorak Road;
(31) That Witness T, [Douglas], Babaeff, Clifford, and [Madina] walked to Siding Park and sat down on the grass to discuss the robbery;
(32) That he and Clifford parked on Dobson Street before walking to the on-ramp for the Monash Freeway off Punt Road as reconnaissance for the robbery;
(33) That [Douglas], [Madina], Clifford, Babaeff, and Witness T gathered under the on-ramp to the Monash Freeway off Punt Road to discuss plans for the robbery;
(34) That on the day of the robbery Witness T was sitting in the truck behind the Armaguard van, [Madina] stopped traffic, Babaeff was using the saw, and Clifford and [Douglas] entered the van;
(35) That the Armaguard van drove along the on-ramp and turned left off the ramp. The van was followed by Witness T in the truck and by [Madina] and Babaeff in the white van;
(36) That after the Armaguard van was robbed, the van, the Bedford truck, and the white van all turned left down Cremorne Street. The Armaguard van then turned right into Bent Street and Witness T turned left into Goff Street;
(37) That Babaeff and Witness T tried to steal vehicles for the armed robbery but were caught by the Police Dog Squad;
(38) That Witness T and [Madina] parked the empty white van on Westbury Street after the robbery then walked back to the warehouse.
25. The prosecution also seek to adduce the following representation made by Witness T in in a supplementary recorded re-enactment that took place at various locations with investigators on 13 March 2012:
(39) That the day after the robbery he took the Bedford truck to Mack Motor Body Repair to get it off the road by having it serviced, and that he sent another person to pick it up.
26. The prosecution seek to adduce the following representations made by Witness T in a sworn statement made to Detective Acting Inspector Mark Caulfield on 24 October 2012:
(40) He hid various amounts of cash from the armed robbery in five PVC pipes and buried them at a property he lived at in Port Douglas in 1994;
(41) He had also hidden some of the cash by burying it in the back yard at Anthony Hookway’s house in Windsor;
(42) On 25 September 2012 he showed D/S/Sgt Caulfield and Det Dawson the property in Port Douglas and two of the locations on the property where he had hidden the pipes with cash in them;
(43) On 25 September 2012 he took police to several locations along Rex Range Road, Port Douglas where he believed he had disposed of the registration plates of the Bedford van he had driven during the armed robbery;
(44) That he buried one of the registration plates in the dirt on the edge of a steep drop into a valley, and threw the other one over the edge;
(45) That after Hakim brought the money from the armed robbery to him in Port Douglas, there were several pieces of cardboard separating the notes that had the serial numbers of the notes that were in each bundle, and that he threw those bits of cardboard off the edge of Rex Range Road as well.
We pause to note that the representations numbered (1) to (39) in the ruling reflect those numbered 1 to 39 contained in Table A (‘Particulars of the previous representations‘) of the prosecution’s hearsay notice; and that those numbered (40) to (45), reflect those numbered 1 to 6 in Part C (‘Particulars of other relevant representations by the representor’) of the prosecution’s hearsay notice. Two further representations in Part C of the notice, numbered 7 and 8,[9] do not appear to have been summarised in the judge’s ruling (although nothing turns on this).
[9]The two further representations, not distinctly referred to in the ruling, are:
7. [Witness T] made a representation that on 16 October 2012 he travelled to the Port Douglas area with police and again tried to show them where he got rid of the registration plates.
8. [Witness T] made a representation that he sold the Bedford truck to a wreckers in Cairns for $1200.
With respect to Douglas — who, somewhat remarkably, given the content of Witness T’s representations above,[10] has not been charged with the 1994 armed robbery — the judge summarised the prosecution’s case as follows:[11]
[10]See, for example, representations (1), (3) to (6), (8) to (10), (12), (19), (22), (26), and (29) to (34), at [11] above.
[11]The representations in the ruling numbered (1) to (15) reflect those in Part A (‘Particulars of the Previous Representation’) of the prosecution’s hearsay notice, numbered 1 to 15.
27. In 2002 Paraskeva Nikolaou started working with Linfox Armaguard as a road crew officer. Through his employment Mr Nikolaou gained an intimate knowledge of the procedures and security of the Armaguard cash delivery process.
28. It is alleged that [Douglas] knew Paraskeva Nikolaou for about 20 years before the time of the alleged offence. It is also alleged that Mr [Douglas] knew Witness T and had been friends with him for many years. Witness T met Nikolaou through Mr [Douglas].
29. The prosecution case will be that Nikolaou planned the theft of the cash with [Douglas] and discussed with him how much money was carried in the trucks, routes taken, security measures and various details about the transportation of cash. After a number of conversations they arrived at the idea of leaving the door to the driver’s side of the van open to enable the theft. It was agreed that a rag would need to be put over the internal camera once inside the truck.
30. Nikolaou provided information about a run to Sunshine, which occurred on a particular day each week, involving the transport of what he believed would be millions of dollars. It is alleged that Mr Nikolaou told Mr [Douglas] that once the truck arrived at Sunshine Shopping Centre in Hampshire Road he would leave the vehicle along with his work colleague to replenish an ATM machine within the shopping centre. He would leave the driver’s side door open leaving the truck unattended for approximately 20 minutes. Nikolaou did not know who [Douglas] would do the job with.
31. On 22 December 2006, Nikolaou was working with Vince Ruggieri. Once their vehicle was loaded with bags of money, they left their depot at around 7.00 am. Ruggieri was driving the truck, Nikolaou was the passenger. They arrived at the shopping centre around about 8.00 am. They then left the truck to restock an ATM inside the shopping centre.
32. Once that job was completed the vehicle was moved to the entrance to Safeway supermarket where they were to replenish a Commonwealth Bank ATM. Ruggieri collected the cassettes to be loaded into the ATM from the back of the truck whilst Nikolaou remained in the vehicle. As Ruggieri proceeded towards the shopping centre, Nikolaou left the vehicle and, as had been arranged with the accused, left the driver’s side door slightly open.
33. When Nikolaou got to the entrance to the shopping centre he bent over as if to tie his shoelaces. This was a prearranged sign to let the accused know that the door of the truck had been left open.
34. When Nikolaou [and] Ruggieri returned to the truck they saw that a rag had been placed over the internal camera. Police were called as soon as it was realised some bags of money were missing. $1,105,000 was stolen.
35. Witness T alleges that he discussed the plan to commit a substantial theft from an Armaguard van with [Fabio Douglas]. They discussed Nikolaou’s position at Armaguard and the information as to trucks, security measures and routes he had passed onto [Douglas]. Witness T did not speak directly to Nikolaou.
36. The plan they developed involved driving the truck away when the security guards were replenishing the ATM at Sunshine. They conducted reconnaissance and decided to take the truck to the nearby car park of a palliative care facility where they could unload it into their own van.
37. The theft did not go according to plan. Witness T placed a rag over the internal camera as he got inside the driver’s cabin of the truck, however he could not work out how to release the handbrake to the truck. He then removed some bags of money, but the driver’s door swung shut as he got out of the van with his hands full. They were then locked out and returned to the van and fled.
38. On the trial Paraskeva Nikolaou will give evidence on behalf of the prosecution.
39. In addition the prosecution seek to adduce the following representations made by Witness T in a sworn statement made to Detective Acting Inspector Mark Caulfield on 6 March 2012:
(1) He [i.e. Witness T] and the accused [Douglas] planned to steal cash from an Armaguard van;
(2) That it was the accused [Douglas] who determined where and when the theft of money from the Armaguard van would take place;
(3) That the Sunshine Shopping Centre was chosen as the location for the theft because it was early in the van’s route and because of the amount of time the guard’s spent inside the Centre meant the accused would have more time to complete their theft;
(4) That he and the accused [Douglas] performed reconnaissance on the location of the theft;
(5) He met the accused [Douglas] on the morning of the theft and drove in a white van with the accused to the location of the theft;
(6) That prior to the Armaguard van arriving he located a rag to use to cover the internal camera in the Armaguard van;
(7) That the co-accused Nikolaou was to provide a signal to Witness T and the accused [Douglas] that all was in readiness by kneeling down and doing up his shoelace;
(8) That the co-accused Nikolaou would leave the driver’s side door slightly ajar so as to allow Witness T to access the Armaguard van;
(9) [Witness T] was wearing a Chubb security hat and jumper at the time of the theft;
10) That he gained entry to the van by accessing the open driver’s side door and that he used the rag he acquired to cover the internal camera;
(11) He was unable to activate the handbrake and could not drive the van away as was the original plan;
(12) After being unable to move the van he grabbed numerous bags of cash from the Armaguard van. He exited the van and was walking towards the accused [Douglas]. The door to the van then accidently closed behind him;
(13) He and the accused [Douglas] left the scene together and counted the cash. Witness T then disposed of various clothes and other items linked to the theft;
(14) He and the accused [Douglas] obtained more than $1.1 million as a result of the theft;
(15) He received approximately $250,000.00 as his share of the theft.
The judge set out relevant parts of ss 59, 62 and 65 of the EA, and made plain that he was guided in the task before him by the High Court’s judgement in Sio[12] and this Court’s reasons in Asling,[13] setting out what he understood to be the approach dictated by those cases.
[12]Sio v The Queen (2016) 259 CLR 47 (French CJ, Bell, Gageler, Keane and Gordon JJ) (‘Sio’).
[13]Asling v The Queen [2018] VSCA 132 (Ferguson CJ, Beach and Ashley JJA) (‘Asling’).
His Honour then discussed the considerations applicable to accomplices (as Witness T was), citing Sio[14] and Vitale,[15] and referring to s 31(c) of the Jury Directions Act 2015 (‘JDA’). He said further that he was also satisfied that Witness T’s representations were ‘against [his] interests’ and thereby ‘caught by s 65(2)(d)(i)’ of the Act.
[14]Sio, 66 [64]–[65], 68–9 [71]–[72].
[15]Vitale v The Queen [2018] VSCA 212, [48] (Niall JA) (‘Vitale’).
The judge noted that, in submitting in Madina’s case that Witness T’s representations were likely to be reliable, counsel for the prosecution ‘relied on 7 particular circumstances which applied to all 45 representations as circumstances that made those representations likely to be reliable’. First, Witness T was seeking protection; secondly, the representations were made to investigating police; thirdly, Witness T did not know what information police had; fourthly, Witness T did not seek to minimise his role; fifthly, the representations were made over an extended period; sixthly, Witness T harboured no animosity towards the accused; and, seventhly, the representations were clear and unambiguous. With respect to the representations contained in Witness T’s written statements, counsel relied on two further circumstances: first, Witness T confirmed the contents of his statements; and, secondly, Witness T’s statements were sworn. Counsel for the prosecution also relied on two further circumstances with respect to the video recorded re-enactments: first, the making of the representations was entirely transparent; and, secondly, the representations were made at the scene.
Further, the judge noted that, in submitting in Douglas’ case that Witness T’s representations were likely to be reliable, in addition to the matters relied upon in Madina’s case, counsel for the prosecution submitted that Witness T was a well-known criminal prior to making his statements, consideration having been given to whether he should be an indemnified witness in the case against Douglas. Counsel contended that Witness T’s version of events is detailed; strongly supports the evidence of Nikolaou; and appears to be consistent with the objective evidence. That said, counsel accepted that had Witness T been capable of giving evidence at trial, his credibility and reliability would have been subjected to substantial attack, and the judge would have been required to give a strong ‘unreliable witness’ warning to the jury. But even though Witness T was an informer, counsel submitted, and had sought an advantage for himself, the trial judge should not just focus on his reliability, because — self-evidently — Witness T is not capable of being cross-examined. Thus, where Witness T describes things of which only a participant could have been aware, the court should regard the reliability of the representation as being enhanced.
His Honour then summarised the evidence given on the voir dire by Detective Caulfield. The judge noted that Detective Caulfield, who is now retired, had in 2011 been working as the investigations manager for the ‘Briars Taskforce’. In the course of his evidence, the judge noted, Detective Caulfield had described his dealings with Witness T, albeit that his notes were ‘heavily redacted’ as a result of objections by counsel for the Chief Commissioner of Police — who had been given leave to appear during Detective Caulfield’s evidence — based on claims of public interest immunity. At various times, the judge said, counsel for the Chief Commissioner objected to questions on the basis of public interest immunity, those objections in the main being upheld. Counsel for the Chief Commissioner also provided advice to Detective Caulfield whilst he was in the witness box, when Detective Caulfield sought assistance as to whether or not to answer a particular question, having regard to considerations of public interest immunity. Moreover, the judge observed, Witness T’s statements were not relied upon at committal, so that much of Detective Caulfield’s evidence was directed to fleshing out his dealings with Witness T, although ‘much of what he could say about those dealings was limited by claims of public interest immunity’. And his Honour said that the ‘limitations placed on Mr Caulfield’s ability to describe all of the circumstances associated with Witness T becoming a witness, became an important part of the defence objection to the admission of this evidence’.
We need not set out the arguments advanced by the respondents’ counsel as summarised by the judge in his ruling, save to say that his Honour substantially (although not universally) accepted them.
With respect to representations 1 to 27 in Madina’s case, the judge observed that they were made ‘in almost identical circumstances’. The judge rejected the prosecution’s submission that they were made in circumstances that make it likely those representations were reliable. Hence, the judge did not accept that Witness T did not harbour any animosity towards Douglas. Indeed, he concluded that Witness T had a motive to incriminate Douglas (although he could not reach the same conclusion about Madina). Witness T, the judge said, believed that Douglas wanted to kill him, ‘had every reason to harbour animosity towards him’ and had a motive to incriminate him.
The judge considered that the argument that Witness T did not know what information the police had was not sustained by the evidence, so that he could not safely conclude that Witness T was not previously provided with any information about the crimes he was describing. Moreover, the fact that the representations ‘were clear, checked and subject to jurat’ were not circumstances which operated to enhance reliability appreciably, since such safeguards are unlikely to carry weight ‘in the case of an accomplice seeking favour from the authorities’. And the fact that the representations were made over an extended period were, in the judge’s view, ‘neutral’. Further, although the judge accepted that Witness T did not seek to minimise his role, he did not consider that operated to enhance the reliability of representations 3, 4, 5, 10,[16] 17, 21, 22 and 23 — obtained from the statements of Witness T — and 29, 30, 31, 33, 34, and 35 — obtained from the re-enactments — they collectively being the representations that actually, or tend to, identify Madina. His Honour was not ‘inclined to accept’ that inducing genuine cooperation would be a circumstance that makes it more likely that Witness T’s representations as to the identity of the offenders is more reliable, and he observed that more would be required before he could be positively satisfied of likely reliability.
[16]We note that this representation in fact refers to Douglas, not Madina.
As to Witness T’s alcoholism and personal problems, the judge thought these to be ‘neutral’, and the fact that Witness T was given benefits for cooperating with police (alcohol, cigarettes, accommodation, petty cash, meals, reading materials and the like) was a circumstance that, on the limited evidence available, neither enhanced nor detracted from reliability.
Turning to the video re-enactments, the judge considered that, impressions aside, ‘focusing on each of the representations set out in the hearsay notice reveals them to be no more than repetitive and confirmatory of the representations made in the initial statements’. Although the video added ‘greater transparency’, representations 28 to 38 are in substance, the same as representations 1 to 27, albeit in a different form. His Honour said that nothing about the circumstances associated with the making of the representations in the re-enactments made ‘it likely that they are any more reliable than those appearing in the written statements’.
Finally, with respect to representations 40 to 45, the judge said he could ‘discern nothing in particular about the circumstances of the making of those representations that distinguishes them from the circumstances attaching to the earlier representations’.
As to the 15 representations in Douglas’ case, the judge observed that they were made in similar circumstances to those involving Madina, so that his consideration of the arguments in the case of Madina applied ‘equally’ in the case of Douglas.
The very careful — and perspicuously correct — manner in which the judge approached the necessary analysis may be observed from what his Honour said next. For that reason, we set it out in some detail:[17]
[17]Footnotes in original.
146. Because Witness T is an accomplice, the question I need to ask in respect [of] each representation, is whether the objective circumstances in which the representation was made, ‘…was apt to shift the balance in favour of a positive finding of likely reliability…’[18] of that representation.
[18]Sio, 69 [73].
147. Weighing the arguments as best I can I am not persuaded that I can make a positive finding of likely reliability in respect of any of the representations sought to be admitted. That is so essentially for two reasons.
148. First, Mr Caulfield was a careful and considered witness. Much of what he said qualified or did not support the prosecution arguments as they were first put. Other circumstances said to be supportive of reliability were, properly analysed, neutral. Those circumstances tending to reliability were in my view marginal and when balanced overall could not result in a positive finding of likely reliability.
149. There is less about the objective circumstances that make the representations as to the identity of the accused likely to be reliable, but I am not satisfied any of the representations are made in circumstances that make them likely to be reliable.
150. Second, there is an unusual feature of this case that prevents a comprehensive understanding of the circumstances in which Witness T came [to] make these representations. Much of the circumstances that would enable an assessment of likely reliability cannot be disclosed because of extensive claims of public interest privilege.
151. Witness T was under a good deal of pressure at the time that Mr Caulfield first started dealing with him on 19 January 2012.
152. He had been charged with serious dishonesty offences in New South Wales for which he expected to be imprisoned. He had made a statement to police in respect of the NSW matter which he believed had been circulated to co-offenders and other criminals.
153. He believed [Fabio Douglas] and possibly others, perhaps connected to the NSW charges, wanted to kill him.
154. He was a suspect in two murder investigations in Victoria. At the first meeting he had with Mr Caulfield, Witness T was told that he should make statements in respect of those matters before others, lest he be charged with those murders.
155. In dealing with these issues, Witness T went into witness protection. The circumstances surrounding his becoming a protected witness, were not disclosed in evidence, however, it appears that he did so before commencing the making of his statements.
156. Witness T then made quite a number of statements (it is not clear how many) pertaining to various investigations involving serious offending in addition to these two matters.
157. The representations that Witness T was making about other investigations at the same time as these representations, were not available. The circumstances in which they were made, the motives in making them, and the benefits received for making them,[19] have not been disclosed because they are subject to public interest immunity. In my view, the making of those representations are part of the circumstances in which Witness T made the representations in issue here.
[19]The benefit for the NSW statement was disclosed to some extent.
158. Two specific examples illustrate the difficulty.
159. First, how Witness T was a suspect in relation to two murders could not be disclosed. The circumstances of the murders or the making of his statements about them could not be disclosed. There is no evidence that enables a proper assessment of what Witness T’s motives were in cooperating with police. Nor can they be an adequate assessment of the benefits he actually received for doing so, or of the benefits he may have perceived he would receive in doing so. Understanding those matters would better illuminate the circumstances of the making of the representations in issue here. Without that understanding the picture presented is incomplete.
160. Second, other evidence from Mr Caulfield revealed that Witness T had been charged with serious dishonesty offences in New South Wales and faced sentence in respect of that matter later in 2012 or early in 2013. Letters of assistance from both New South Wales and Victorian police were provided to the sentencing judge. Witness T was given a non-custodial disposition. The letters of assistance, the statement that he made for the purposes of the New South Wales proceeding, whether he gave evidence against the New South Wales co-offenders and if so whether that evidence was regarded by investigators as reliable, was not disclosed.
161. I took [prosecuting counsel] to one extract from Mr Caulfield’s notes … where he first spoke with Witness T on 19 January 2012:
…
· Stupidly made statement thinking he can put pressure on co-offenders who owed him money
…
162. I directed [prosecuting counsel] to the bullet point recording Witness T stating that he stupidly made a statement thinking he can put pressure on co-offenders who owed him money. The concern being that Witness T seems to be saying he made the statement to NSW police for the ulterior purpose of pressuring co-offenders.
163. [Prosecuting counsel] submitted that whilst the New South Wales statement was ‘part of the bigger picture’ it was somewhat removed and unlikely to be of great importance. He acknowledged, however, as I understood him, that the fact that Witness T made a statement to police in order to put pressure on co-offenders to pay him money, was one of the circumstances to be taken into account for the purposes of this application.
164. In my view the circumstances associated with the NSW matter are incomplete and provide no comfort that the circumstances as to the making of the representations in issue here, are likely to be reliable.
165. I should add that I do not accept [defence counsel’s] argument that all of the circumstances must be revealed. Experience suggests that it is often the case that the defence will not know all of the circumstances in which an accomplice comes to make their statement. Witness protection issues are one example. However, I do accept that it is necessary in the case of an accomplice to have a comprehensive understanding as to how he/she comes to make their statements. More relevantly for the purposes of this application, what is needed is a comprehensive understanding of the circumstances which will bear on whether or not the making of the accomplice’s representations are likely to be reliable.
166. It follows that I find that the picture provided by the evidence as to the relevant circumstances was incomplete in material respects. In my view, compliance with s.65(2)(d)(ii) presupposes a substantial understanding of the circumstances that make it likely the representations in issue, are reliable. I am not satisfied that is possible in this case.
167. For those reasons, I refuse the application to admit all of the representations in both Mr [Madina’s] trial and Mr [Douglas’] trial.
The judge then turned to consider the application of s 137 of the EA. He said that he would have excluded the proposed evidence under the section. His Honour’s essential reasoning was as follows:
172. What is decisive in this case in my view, is the fact that the jury’s understanding of the motives, character and previous representations of Witness T will be substantially limited by the public interest immunity claims I have discussed above. Not only would the defence not be able to cross-examine Witness T, they would not be able to expose many of the features of his evidence that would likely indicate unreliability, through other witnesses such as Mr Caulfield. In substance, Witness T’s evidence would be presented without it being adequately tested directly, or indirectly. In my view the danger of the evidence being given more weight than would be justified is acute.
173. Further, I am not satisfied that the danger of unfair prejudice could be ameliorated by direction. The draft warning provided by the Crown … refers to the types of warnings that would likely be given, but not their specifics. The warnings approved and extracted in Suteski[20] do not appear to me to adequately address the concerns raised by the issues in this case. Indeed I am not satisfied that any warning could adequately address the vice that the evidence will not comprehensively reveal Witness T’s motives, character or previous representations.
[20]R v Suteski [(2002) 128 A Crim R 275]; R v Suteski [(2002) 56 NSWLR 182].
Proposed ground 1: Failure to admit Witness T’s representations
The legislation and cases
Before turning to consideration of the application in this Court, it is necessary to set out the relevant provisions of the EA and the authorities bearing upon their interpretation.
Part 1 of the Dictionary to the EA defines representation 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; …
Part 3.2 of the Act is concerned with ‘Hearsay’. Section 59 sets out the hearsay rule as follows:
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.
Note
Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales in R v Hannes (2000) 158 FLR 359.
Section 62 provides (so far as relevant):
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.
…
As we have indicated, in Douglas’ case the prosecution’s notice under s 67 invoked ss 65(2)(c) and (d), and in Madina’s case the notice relied only on s 65(2)(d). So far as is relevant, s 65 provides:[21]
[21]Emphasis added.
65 Exception—criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(c) was made in circumstances that make it highly probable that the representation is reliable; or
(d) was—
(i) against the interests of the person who made it at the time it was made; and
(ii) made in circumstances that make it likely that the representation is reliable.
…
(7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends—
(a) to damage the person’s reputation; or
(b) to show that the person has committed an offence for which the person has not been convicted; or
(c) to show that the person is liable in an action for damages.
The proper approach to s 65(2)(d) was laid down by the High Court in Sio. In that case, the appellant had driven a co-offender, Richard Filihia, to a brothel. Filihia, who was armed with a knife, entered the brothel alone, intending to commit robbery. In the course of an altercation, Filihia fatally stabbed a brothel employee. Filihia took cash from the employee, left the premises and was driven away by the appellant. The appellant was charged with the murder of the employee and with armed robbery with wounding. At trial, the jury acquitted him of murder, but convicted him of the armed robbery with wounding. One of the questions, determined by the High Court, concerned the admissibility of Filihia’s ERISP[22] and statements to police implicating the appellant in the armed robbery. In one of his statements to police, Filihia said that the appellant had put him up to robbing the premises, and that he had given the knife to Filihia. A principal issue in Sio was whether Filihia’s statement to police about the involvement of the appellant was made in circumstances that made it likely that it was reliable within the meaning of s 65(2)(d)(ii) of the Evidence Act 1995 (NSW).
[22]Electronically Recorded Interview of a Suspected Person.
The Court (French CJ, Bell, Gageler, Keane and Gordon JJ) made it clear that:[23]
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.
[23]Sio, 65 [60].
Earlier, the Court made plain that the party seeking to prove a relevant fact in issue in the case — in this case the prosecution — must first identify the particular representation to be adduced in proof of that fact. Once that is done, the circumstances in which that representation was made may then be considered to determine whether, at the time it was made, it was against the interests of the person who made it, and it was made in circumstances that make it likely to be reliable. Thus, the Court said:[24]
It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then 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.
It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.
[24]Ibid [57]–[58].
The Court deprecated a ‘compendious inquiry’ or approach as to the overall reliability of the relevant hearsay statements,[25] and continued:[26]
The serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge and the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.
[25]Ibid 64–5 [59].
[26]Ibid 65 [61].
As is the present case, Sio was concerned with representations made by an accomplice. Hence, the High Court said, the evaluation of the likely reliability of each of the accomplice’s assertions must be made having regard to the circumstance that his representations ‘were those of an accomplice in the commission of the crimes in question’.[27] The Court continued:[28]
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.[29] In such a case, ‘there is no basis for a strict application of the rule’.[30]
Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. One category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence[31] as those circumstances that ‘are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed’; in other words, circumstances that of themselves tend to negative motive and opportunity of the declarant to lie.
Evidence by an accomplice against his or her co-offender has long been recognised as less than inherently reliable precisely because of the perceived risk of falsification.[32] Statements by an accomplice afford a classic example of a case where a ‘plan of falsification’ may be expected to be formed, given the obvious interest of one co-offender to shift blame onto his or her accomplice, especially where the circumstances also include the opportunity to seek to curry favour with the authorities. That the evidence of accomplices is evidence apt to be unreliable by reason of a motive to shift blame to the co-offender is recognised by s 165(1)(d) of the Evidence Act, which expressly treats, as ‘evidence of a kind that may be unreliable’, evidence:
‘given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding’.[[33]]
[27]Ibid 65–6 [62].
[28]Ibid 66 [63]–[65] (footnotes as in original).
[29]Walton v The Queen (1989) 166 CLR 283 at 293.
[30]Walton v The Queen (1989) 166 CLR 283 at 293.
[31]3rd ed (1940), vol 5, §1422; see also Ratten v The Queen [1972] AC 378 at 389, 391; Walton v The Queen (1989) 166 CLR 283 at 294-295, 304.
[32]Peacock v The King (1911) 13 CLR 619 at 635, 670-673; Tumahole Bereng v The King [1949] AC 253 at 265; Davies v Director of Public Prosecutions [1954] AC 378 at 391, 399; Webb v The Queen (1994) 181 CLR 41 at 93.
[33]See now ss 31 and 32 of the Jury Directions Act 2015.
In Asling, the Court made clear that the proper application of s 65(2)(d)(ii) of the EA will not inevitably lead to the exclusion of previous representations by an accomplice. The Court observed:[34]
The fallacy in the applicant’s submission is that all evidence given by a witness whose evidence may be unreliable is evidence given in circumstances that make it likely that it is unreliable. With respect, the applicant’s argument fails to pay proper attention to the text of s 65(2)(d)(ii) or the language of the High Court in Sio. In Sio, the High Court was at pains to emphasise that it was the circumstances in which the hearsay representation was made that were critical, rather than the mere classification of the representor into some particular category of witnesses.[35] Moreover, so far as s 31 of the Jury Directions Act is concerned, it is to be remembered that the evidence of a person who might reasonably be supposed to have been criminally concerned in the offending is defined to be evidence of a kind that may be unreliable.
[34]Asling, [81] (citations and emphasis as in original).
[35]See Sio (2016) 259 CLR 47, 68 [70] and 69 [73].
Submissions of the applicant
In this Court, drawing on Sio and Asling, counsel for the applicant submitted that when considering the application of s 65(2)(d)(ii), a ‘compendious approach’ or ‘impressionistic evaluation’ is not permissible. Each fact sought to be proved by a representation, and the relevant circumstances in which the representation was made, need to be identified. It was also submitted that the Court should not be overly concerned with, or distracted by, circumstances that point to unreliability, but rather with circumstances which of themselves warrant the conclusion that the representation is reliable. Attention should not be focused on the apparent truthfulness or reliability of the person making the representation. The applicant’s counsel argued that a representation made by an accomplice is not necessarily made in circumstances that make it likely that it is unreliable. Counsel submitted that the case for admission of the representations was in this case much stronger than in Sio and Asling.
It will be remembered that the proposed ground as formulated asserted that the judge erred in finding that the representations were not made in circumstances that make it likely that they are reliable:
· first, by taking into account the content of the representations;
· secondly, by making a distinction between representations that identify the respondents and representations that do not;
· thirdly, by finding that the evidence as to the relevant circumstances was incomplete in material respects because of claims for public interest immunity;
· fourthly, by finding that much of Detective Caulfield’s evidence qualified or did not support the prosecution submissions; and
· fifthly, by finding that several of the circumstances were neutral, marginal, or otherwise did not make it likely that the representations were reliable.
Counsel for the applicant submitted that the judge was wrong to take into account that representations 3, 4, 5, 10,[36] 17, 21, 22, 23, 29, 30, 31, 33, 34 and 35, identified Madina as an offender. The judge also erred by finding that the video recorded representations 28 to 38 are in substance the same as representations 1 to 27. The judge erred, counsel argued, by making a distinction between representations that identify Madina as an offender and representations that are a narrative of the offence, since this cannot be a circumstance in which the representation was made.
[36]See footnote 16 above.
The applicant’s counsel also submitted that the judge mistook the facts by finding that the evidence as to the relevant circumstances was incomplete in material respects because of claims for public interest immunity. It was submitted that the judge did not inspect the information over which the claims were made, so that there was no evidentiary basis for finding that such information was material. The judge also erred by finding that it was not possible to have a substantial understanding of the relevant circumstances when he had the power to inspect the information but did not do so. Invoking s 133 of the EA, counsel contended that the judge could have inspected an unredacted copy of Detective Caulfield’s notes, and go behind the redactions. He could have checked with the Chief Commissioner’s counsel, so it was submitted, whether a particular claim for public interest immunity was maintained. In any event, there was sufficient evidence of relevant circumstances in Witness T’s statements and re-enactments, and in Detective Caulfield’s statements, notes and oral evidence. The judge was wrong to conclude that much of Detective Caulfield’s evidence qualified or failed to support the prosecution’s position.
Counsel for the applicant contended that the judge was wrong in finding that the various matters relied upon by the prosecution did not enhance reliability, and in finding that he could not safely conclude that Witness T did not know what information the police had. And finally, counsel submitted that the judge erred by giving the circumstance that Witness T was an accomplice disproportionate weight. Counsel contended that s 65(2)(d) is largely concerned with representations by unavailable accomplices; but, on the judge’s approach, it would be almost impossible for such accomplice evidence to be admitted, even where other circumstances make it likely to be reliable.
The respondents’ submissions
The respondents’ counsel submitted that House principles apply to resolution of the present application.[37]
[37]Counsel cited House, 505; MA v The Queen [2011] VSCA 13; Harris v The Queen [2017] VSCA 316; Paulino v The Queen (2017) 54 VR 109; DPP v DJC (2012) 36 VR 33; McCartney v The Queen (2012) 38 VR 1; KJM v The Queen (No 2) (2011) 33 VR 11; and DAO v The Queen (2011) 81 NSWLR 568.
Counsel submitted that, if for no other reason than that the court must determine whether a representation was ‘against the interests of the person who made it at the time it was made’, the content of a representation cannot be ignored when considering the application of s 65(2)(d). The representations themselves, it was submitted, ‘give proper context and meaning to the circumstances in which they were made’. It was entirely open to the trial judge to make the finding that nothing about the circumstances associated with the making of the representations in the re-enactments made it likely that they are more reliable than those appearing in the witness statements.
It was submitted by the respondents’ counsel that the distinction drawn by the trial judge between the types of representations made by Witness T was proper. Given Witness T’s status as an accomplice, in order to understand the circumstances surrounding the making of various representations, it was necessary to distinguish between those representations setting out a narrative of the offending and those which named the respondents as offenders. Counsel submitted that, in order to determine whether circumstances including Witness T seeking protection, making statements to investigators and not seeking to minimise his own conduct, tended to enhance his reliability, it was proper to draw a distinction between types of representations in order to garner a better understanding of the circumstances. Reference to issues which commonly inform why and how an accomplice’s evidence ought be treated with caution was entirely apt.[38] Only in this context could an assessment of the circumstances be made. For the judge to have done otherwise would have been artificial, and would have meant that he failed to take account of all relevant matters.
[38]Counsel cited Sio, 67 [66]; Tumahole Bereng v The King [1949] AC 253, 265 (Lord MacDermott).
Counsel contended that the applicant’s submission that the judge was at liberty to inspect detective Caulfield’s unredacted notes, and that the respondents’ counsel did not press for public interest immunity and relevance redactions to be argued, was not one that was advanced by the prosecution to the trial judge. The applicant bore the burden of proof as to the relevant circumstances. It was for the prosecution to make efforts to satisfy this burden; but, having failed to meet that burden, the applicant now seeks to blame the judge for the way in which the application was conducted.
The applicant’s submissions regarding the judge’s findings of fact, the respondents’ counsel argued, are ill-conceived and do not accurately reflect the evidence. It was submitted that the judge was ‘unimpeachably’ balanced when it came to assessing Witness T’s character as an accomplice. His Honour considered the relevant authorities and was well aware of the courts’ approach to such evidence in the context of an unavailable witness.
Analysis
In Sio, the High Court emphasised that, when considering the admissibility of a previous representation tendered in reliance on s 65(2)(d), each material fact to be proven by a hearsay statement must be identified. It is important to focus on the precise representation upon which it is sought to rely, and to determine whether, in the circumstances in which it was made, it is likely that the particular representation was reliable. Hence, it is wrong for a trial judge to approach the issue in a ‘compendious’ manner by reference to an ‘impressionistic evaluation’ of the general reliability of the statements in issue. An approach which is focused upon the particular representation tendered to prove a particular fact in issue ‘has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials’.[39]
[39]See [36] above.
Historically, the exclusion of hearsay evidence appears to have been based upon a distrust of a jury’s capacity properly to evaluate it, or upon the inability to test it by cross-examination (or both). Cross-examination is the principal method by which the capacity of a witness to observe, recollect and narrate, and by which his or her honesty, credibility and reliability, can be tested.[40] Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the impugned representation was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. As the High Court observed in Sio, circumstances that have been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule include those that ‘are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed’; or in other words, circumstances that of themselves present negative motive and opportunity to lie.[41]
[40]J D Heydon, Cross on Evidence (11th ed, 2017), [31020].
[41]See [37] above.
Notwithstanding that the trial judge was prohibited from taking a compendious approach to the evaluation of the general reliability of Witness T’s representations, it remained legitimate — indeed, necessary — when evaluating the reliability of each individual representation to bear steadily in mind that Witness T was an accomplice, since that circumstance alone was one that rendered his representations inherently unreliable. The law has long recognised the risk that an accomplice will falsify evidence against a co-offender and shift blame. Moreover, an accomplice will often have a motive (or motives) to curry favour with the authorities. When evaluating each representation, therefore, the judge was correct to take Witness T’s status as an accomplice into account as a circumstance bearing on the likelihood of the representation being reliable. In the case of each representation, Witness T’s status as an accomplice bore directly on whether it was ‘made in circumstances that make it likely that the representation is reliable’. It was well open to the judge to conclude that he could not make a positive finding that any of the representations sought to be admitted were made in circumstances making it likely that they were reliable, the burden of establishing such circumstances resting with the prosecution. And in Douglas’ case, beyond the fact that he was an accomplice, the judge was also correct to conclude that Witness T had a motive to incriminate Douglas, whom he thought wanted to kill him; had every reason to harbour animosity towards him; and had a motive to incriminate him.
At the risk of repetition, in the case of each representation, s 65(2)(d)(ii) required an individual examination of the circumstances in which each particular representation was made, in order to determine whether those circumstances made it likely that the representation is reliable. And, once more at the risk of repetition, it fell to the prosecution in this case to establish that the representations relied upon were made in circumstances that made it likely that they were reliable.
At the time that he died in 2013, Witness T’s putative evidence had not been tested by cross-examination at committal (or elsewhere); and, given that he is deceased, patently will never be capable of being tested by cross-examination. Sometimes — perhaps often — the fact that a witness is deceased will not present an insurmountable impediment to an adequate assessment of the circumstances in which a hearsay representation was made, so that an evaluation might be made of its reliability. A pervasive feature that impeded a thorough investigation of the circumstances in which each of Witness T’s representations was made, however, were the ubiquitous claims for public interest immunity constantly made by counsel for the Chief Commissioner in the course of the proceeding before the trial judge.
Thus, although there was a deal of material that on its face suggested that Witness T made his hearsay representations in circumstances making it likely that they were not reliable, those circumstances were rendered incapable of proper examination by the persistent claims based on public interest immunity. Significantly, therefore, the circumstances in which Witness T went into witness protection, his interactions with police and his possible motives, could not be adequately explored. The respondents were thus deprived of the opportunity to investigate — as they would in another case not subject to claims for public interest immunity — circumstances impinging on Witness T’s truthfulness, credibility and reliability, and thus whether his representations were made in circumstances making it likely that they were reliable. But more importantly, the prosecution — who bore the onus of showing that Witness T’s representation were made in circumstances making it likely that they were reliable — was deprived of the opportunity of doing so.
In this Court, counsel for the applicant criticised the respondents’ counsel for failing to invoke s 133 of the EA. This was an unfortunate submission, since it is a sorry fact that the applicant’s counsel — whose client bore the onus of persuasion under s 65(2)(d), and who are also fixed with the duties that apply uniquely to prosecuting counsel — did not themselves do more to probe the soundness of the claims for public interest immunity, so as to ensure that evidence relevant to the circumstances bearing upon the reliability of Witness T’s representations were adequately explored and exposed.
A prime example of the inability to fully explore the circumstances bearing on the reliability of Witness T’s statements referred to by the judge related to Witness T’s status as a suspect in relation to two murders. How Witness T came to be a suspect in relation to the two murders could not be disclosed. Neither the circumstances of the murders, nor the making of his statements about them, could be disclosed. No evidence enabling a proper assessment of Witness T’s motives in cooperating with police was disclosed. Adequate assessment of the benefits he actually received for doing so, or of the benefits he may have perceived he would receive in doing so, could not be made. Undoubtedly, all of those matters bore on an assessment of the circumstances in which the representations in issue were made. Without a full understanding of those matters, it could not be concluded that the representations were made in circumstances making it likely that they were reliable.
Another prime example referred to by the judge was the evidence that Witness T had been charged with serious dishonesty offences in New South Wales and faced sentence in 2012 or 2013. Letters of assistance from both New South Wales and Victorian police were provided to the sentencing judge, and Witness T was given a non-custodial disposition; yet the letters of assistance, the statement that he made for the purposes of the New South Wales proceeding, and whether he gave evidence against the New South Wales co-offenders (and, if so, whether that evidence was regarded by investigators as reliable), was not disclosed. Those circumstances bore directly on the reliability of Witness T’s representations, but were not put before the judge. On their face, they were features that had a direct impact on any assessment of the circumstances in which Witness T’s representations were made, and whether they were reliable. The judge simply could not have concluded that the disputed representations were made in circumstances making it likely that they were reliable where those circumstances — no matter the reason — were not fully disclosed.
Furthermore, there was evidence to be found in Detective Caulfield’s notes that Witness T had made a statement against co-offenders who owed him money thinking that he could exert pressure upon them. Self-evidently, that Witness T was prepared to involve himself in such improper activity was a circumstance which bore directly on the reliability of Witness T’s representations. Once more, however, the full picture was not disclosed by the evidence.
What we have said thus far is enough to dispose of ground 1. The judge’s analysis was painstaking and, with respect, his ultimate conclusion was correct. In our view, his Honour was right to observe that compliance with s 65(2)(d) presupposes a substantial understanding of the circumstances that make it likely the representations in issue are reliable, but that it was not possible to reach such an understanding in the present case.
For these reasons, the first ground cannot be upheld.
Proposed grounds 2 and 3: Probative value and risk of unfair prejudice
As we have indicated, counsel for the applicant conceded that if the first ground failed, it would be unnecessary for the Court to consider grounds 2 and 3.
Notwithstanding that concession, however, we consider that it is appropriate for us to say that we would not have upheld proposed grounds 2 and 3.
The applicant submitted in writing that the judge ‘applied a wrong principal [scil., principle] by not assessing the probative value of the evidence under s 137 of the Act’. It was contended that the judge ‘only assessed the danger of unfair prejudice and therefore could not, and did not, determine whether that danger outweighed the probative value’. Since the judge did not assess the probative value of the evidence, it was submitted, ‘he could not correctly determine whether jury directions could reduce the danger of unfair prejudice in order that it did not outweigh the probative value of the evidence’. The judge therefore ‘acted on a wrong principle in finding that the danger of unfair prejudice could not be ameliorated by direction’.
On the other hand, the respondents’ counsel submitted that it is ‘fanciful to suggest that the judge did not consider the probative value of the evidence sought to be adduced’, his Honour being ‘acutely aware of the highly probative nature of the evidence’. Not only was the judge ‘alive to the probative value of the evidence, but he appropriately weighed it against the danger of unfair prejudice’.
In the course of his ruling, the judge said: ‘The probative value of Witness T’s evidence is undeniably very high. If all of the representations were admitted it would provide a complete narrative of the Crown case’. He also noted the prosecution submission that ‘the probative value of the evidence in question was obviously very high’.
Moreover, it seems to us that the application before his Honour was conducted upon the overarching assumption that ‘the probative value of [the] evidence is very high’. Thus, for example, the prosecution put the following submission as to the approach that the judge should adopt:
… it is the Crown’s position that [section] 137 can’t just be used as a panacea. It has – the criteria have to be met and I [sic] was the probative value is very, very high and that’s obviously what concerns everybody and the danger of the unfair prejudice would have to outweigh that. And the prejudice of course, must be unfair in the true sense of the word. For example the jury would be irrationally impressed by the evidence. Now I suggest that with appropriate warnings and also the matters that can be put against Witness T's credibility, that they would not irrationally impressed by it.
It is apparent to us, therefore, that his Honour’s ruling has to be understood on the footing that the suggested very high probative value of the evidence was not contentious. Thus, when his Honour regarded it as decisive that the jury’s understanding of the motives, character and previous representations of Witness T will be substantially limited by the public interest immunity claims, he must be taken to have concluded that the very high probative value of the evidence was outweighed by the risk of unfair prejudice. His Honour thought that the probative value of the evidence was outweighed by the risk of unfair prejudice because, not only would the respondents’ counsel not be able to cross-examine Witness T, they would not be able to expose many of the features of his evidence that would likely indicate the likely unreliability of his statements (through witnesses such as Detective Caulfield). As the judge concluded, Witness T’s hearsay evidence would be tendered without it being adequately tested. In those circumstances, the judge was of the view — as was, we consider, open to him — that ‘the danger of the evidence being given more weight than would be justified is acute’.
Furthermore, we consider that it was open to the judge to be satisfied that the danger of unfair prejudice could not adequately be ameliorated by direction, and to be satisfied that no warning ‘could adequately address the vice that the evidence will not comprehensively reveal Witness T’s motives, character or previous representations’.
We are not persuaded that the judge’s approach to the task confronting him under s 137 was attended by error. Grounds 2 and 3 cannot be upheld.
Conclusion
For these reasons we concluded that leave to appeal the interlocutory decision had to be refused.
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