Fletcher v The Queen
[2015] VSCA 146
•15 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0185
| TIMOTHY DOUGLAS FLETCHER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and PRIEST JJA and DIXON AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 April 2015 |
| DATE OF JUDGMENT: | 15 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 146 |
| JUDGMENT APPEALED FROM: | DPP v Fletcher (Unreported, County Court of Victoria, Judge Gucciardo, 12 August 2014) |
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CRIMINAL LAW – Conviction – Intentionally causing serious injury – Crown witness (applicant’s de facto partner) objected to giving evidence under s 18 of Evidence Act 2008 – Crown sought to tender witness’s statement to police pursuant to s 65 – Whether trial judge erred in allowing statement to be admitted – Whether witness ‘not available’ to give evidence within meaning of s 65 – Whether tendering statement amounted to witness being ‘required to give evidence’ contrary to s 18(6) – No error in admission of statement – R v B O (No 2) (2012) 15 DCLR (NSW) 317 and Haddara v The Queen [2014] VSCA 100 considered.
CRIMINAL LAW – Conviction – Evidence from applicant’s de facto partner regarding applicant’s bad character – Whether evidence admissible as credibility evidence under s 108A of Evidence Act 2008 – Evidence not admissible – Whether admission of evidence resulted in substantial miscarriage of justice – Conviction inevitable – Baini v The Queen (2012) 246 CLR 469 – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC with Mr T R Alexander | Stephen Andrianakis & Associates |
| For the Crown | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WEINBERG JA:
I agree, for the reasons given by Dixon AJA, that leave to appeal should be refused.
PRIEST JA:
Having had the considerable advantage of reading the draft reasons of Dixon AJA, I agree with the orders he proposes. And, subject to what follows, I agree with his Honour’s reasons for those orders.
Ground 1 — Witness not available to give evidence
As appears from the reasons of Dixon AJA, Imogen Li, who was not required to give evidence at committal proceedings, did not answer a subpoena to give evidence at trial. A warrant was thus issued for her arrest. In the face of her non-attendance, however, the prosecutor sought an advance ruling pursuant to s 65(2) of the Evidence Act 2008 (‘the Act’) with respect to the tender of Ms Li’s statement to police. Showing some prescience, the prosecutor also foreshadowed that, should Ms Li be located, and should she then seek to invoke s 18 of the Act, the prosecution would seek to rely on s 65(2), on the basis that Ms Li — if excused from giving evidence under s 18 — was to be regarded as ‘not available to give evidence about an asserted fact’.[1]
[1]See Evidence Act 2008 s 65(1).
Of importance to my conclusion that ground 1 cannot be upheld, is the course later adopted by defence counsel.
Ms Li was located. When she attended court she sought independent legal advice, following which she made an application under s 18 of the Act. Her application was granted. The success of Ms Li’s application prompted the prosecution to renew its application under s 65(2) on the basis that she was not
available to give evidence about an asserted fact.
Confronted with the prosecution’s renewed application, however, defence counsel did not seek to contend that Ms Li should not be considered ‘not available to give evidence’. When new counsel accepted the applicant’s brief, he did not seek to re-agitate the s 65 application, nor rely on some more general unfairness discretion.[2] Instead, he sought to have portions of Ms Li’s evidence on the voir dire — including those parts where she asserted undue and improper police pressure to make her statement — also tendered. Later, in reliance on Haddara, defence counsel did seek to rely on a general unfairness discretion, but no more was said about the tender of Ms Li’s statement accompanied by parts of her voir dire evidence. Ultimately, Ms Li’s statement — as redacted — was read to the jury by the prosecutor, and agreed portions of her evidence, recorded audio-visually, were played.
[2]See Haddara v The Queen [2014] VSCA 100 (‘Haddara’).
Given the course of events at trial, it seems clear that defence counsel eschewed any reliance on the notion that Ms Li was ‘not available to give evidence about a asserted fact’, and thus that Ms Li’s statement was not admissible under s 65(2). It is not difficult to think of several reasons why an astute criminal advocate might adopt such a course. I am thus unable to conclude that the course adopted by counsel — including his failure to object under s 65(2) — was not the product of a rational forensic decision.
In light of the course adopted by counsel at trial, I am relieved of the task of deciding whether, since she was ‘not required to give evidence’ under s 18(6), Ms Li was to be considered ‘not available to give evidence about an asserted fact’ within the meaning of s 65 of the Act; and whether Nicholls[3] was wrongly decided (as the applicant’s written case invited the Court to say). I would, however, make the following observations.
[3]DPP v Nicholls (2010) 204 A Crim R 306 (Beach J).
As I have several times pointed out, the exception to the hearsay rule provided for in s 65 relates to a person who has made a previous representation,[4] and the person who made the previous representation ‘is not available to give evidence about an asserted fact’.[5]
[4]The Dictionary provides:
previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;
A definition of ‘representation’ is also provided in the Dictionary.
[5]Section 59, expressed in terms that would make Sir Humphrey Appleby proud, provides that an ‘asserted fact’ is ‘a fact that it can reasonably be supposed that the person intended to assert by the representation’.
So far as is relevant, pt 2 of the Dictionary provides:
4 Unavailability of persons
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if —
…
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
It seems to me that a possible — and, perhaps, cogent — interpretation of clause 4(1)(g) is that it is the person who must be ‘not available’, not the person’s evidence. Moreover, in seeking to prove that the person is ‘not available’, the party seeking to prove the person is not available — presumably so as to invoke s 65 — must show that ‘steps have been taken’ to ‘compel the person to give evidence’, but those steps were ‘without success’.
In this case the relevant person, Ms Li, was corporeally ‘available to give evidence about a fact’, but had objected to doing so under s 18. If the two limbs in s 18(6) of the Act are satisfied, the person making the objection ‘must not be required to give the evidence’. In other words, if the two limbs of s 18(6) are satisfied, the
person cannot lawfully be compelled[6] to give the evidence.
[6]The heading to s 18 of the Act is, Compellability of spouses and others in criminal proceedings generally. See Interpretation of Legislation Act 1984 s 36(2A).
Thus, so it seems to me, in situations similar to the present there are two possible views. First, a person who is physically available to give evidence, but who is relieved from doing so under s 65, is ‘available to give evidence’. But since he or she has objected to giving evidence, and such objection has been upheld, he or she cannot be compelled to do so. The person remains, however, available to give evidence (and could do so if his or her objection was withdrawn). Secondly, and alternatively, a person who is available in the sense that he or she is physically available, is not to be regarded as available to give evidence when, because his or her objection under s 18 has been upheld, he or she cannot be compelled to give evidence.
In light of the course adopted by counsel at trial, however, it is unnecessary for me to reach a concluded view.
With the further caveat that I am inclined to adhere to the views I expressed in Haddara concerning the availability of a general residual common law unfairness discretion, I agree with the reasons of Dixon AJA for rejecting ground 1.
Proposed ground 2 — Prejudicial aspects of Imogen Li’s statement
I was initially attracted to the view that a miscarriage of justice may have flown from the impugned parts of Imogen Li’s statement being put before the jury, on the basis that they were irrelevant to any issue in the trial, and highly prejudicial. Indeed, I need no persuasion — and respectfully agree with the assessment of Dixon AJA — that the judge erred in not excluding the identified passages as irrelevant.
Not without much hesitation, I have also come to share the view, however, that the wrongful admission of the evidence did not result in a substantial miscarriage of justice. Conviction was, in my view, inevitable.
DIXON AJA:
On 11 June 2014, the applicant was convicted of one charge of intentionally causing serious injury. On 12 August 2014, the applicant was sentenced to 4 years and 6 months’ imprisonment with a non-parole period of 3 years.
The applicant seeks leave to appeal against his conviction on the following ground:
There has been a substantial miscarriage of justice because the statement of Imogen Li was admitted into evidence.
Particulars
(i) The learned trial judge erred in ruling that because the witness Imogen Li had been found to have been not required to give evidence pursuant to section 18(6) of the Evidence Act 2008, the witness was thereby ‘unavailable’ and as a result, her statement could be admitted into evidence pursuant to s 65(2) of the Evidence Act 2008.
(ii) The learned trial judge erred in finding, pursuant to section 65(2)(c) of the Evidence Act 2008, that the statement of Imogen Li was made in circumstances which made it highly probable that it was reliable.
(iii) The learned trial judge erred in ruling that the statement of Imogen Li should not be excluded pursuant to section 137 of the Evidence Act 2008.
(iv) The learned trial judge erred in ruling that the statement of Imogen Li should not be excluded in exercise of the general discretion to exclude evidence pursuant to section 135 of the Evidence Act 2008.
(v) The learned trial judge erred in ruling that the statement of Imogen Li should not be excluded pursuant to the discretion to refuse to admit evidence that would be unfair to an accused upon his trial, and in so ruling, applied the wrong test to that discretion.
During the hearing of the appeal, the applicant sought leave to amend his application to include a second ground, challenging the admission into evidence of
an identified part of Imogen Li’s statement, which is dealt with below.
For the following reasons, I would grant the applicant leave to amend his application for leave to appeal against conviction by adding ground 2 but I would refuse the application for leave to appeal.
Background matters[7]
[7]This overview has been drawn from the summary of relevant facts in the applicant’s Written Case, accepted by the respondent as accurate.
On 18 December 2012, one Samuel McGill was shot in the lounge room of a private house in Mooralbark, suffering an injury to his upper thigh and lower back. He made his way to the street and called an ambulance. A passer-by also stopped to assist him. McGill told the passer-by and, later, the attending police that he had been shot by an unknown person from a passing car. At the time, the applicant lived at that private house with his de facto partner, Imogen Li.
McGill visited the applicant’s house earlier that day attempting to recover his ex-girlfriend’s iPhone 5, which he had previously given to the applicant. The applicant and McGill then argued about a drug debt claimed by the applicant from McGill. During the argument, the applicant retrieved a gun and shot McGill in the thigh as he sat on the couch in the applicant’s living room. Li was in the kitchen at the time, but heard the arguing and the gunshot. After both McGill and the applicant separately left the house, Li cleaned up McGill’s blood.
The defence case at trial was that an unknown person at an unknown place shot McGill. McGill mentioned a number of other possible shooters when he gave evidence at trial. When cross-examining McGill as an unfavourable witness, the prosecutor tendered his original police statement — that the applicant shot him — as a prior inconsistent statement.
The issues for the jury were whether they were satisfied beyond reasonable doubt that the applicant had shot McGill, and if so, whether he had done so intending to cause serious injury.
Li did not give evidence against the applicant at trial, but the prosecutor read into evidence a statement that she had earlier given to police and then played to the jury an edited audio-visual recording of Li’s evidence on a voir dire.
The applicant was convicted on the third scheduled date for the trial, but on earlier occasions, the judge dealt with pre-trial issues relevant to the ground of appeal. On neither of those earlier occasions did the trial proceed to the point of taking evidence; however, evidence given on a voir dire on the earlier occasions remained the basis for the ruling admitting Li’s statement into evidence.
To understand the issues on this appeal, I will explain in some detail the circumstances that led to the admission of this evidence. Li made her statement to the police on 3 January 2013. Li stated that she was at home with the applicant in the late afternoon of 18 December 2012 when McGill arrived. She remained in the kitchen while McGill and the applicant talked in the living room. An argument developed regarding a drug debt owed by McGill to the applicant. Li heard the applicant tell McGill he was going to get a gun. The applicant then came into the kitchen and got his gun. The applicant returned to the living room and Li heard the complainant pleading with him not to shoot. Li then heard the gun go off and she heard McGill say that he had been shot. After both McGill and the applicant left the house, Li cleaned up the living room being particularly concerned to clean up McGill’s blood.
Li was not required to attend at the committal hearing for cross-examination.
On 14 May 2014, Li did not answer a subpoena and a warrant for her arrest was issued. On the basis that she was unavailable, the Crown applied to tender her police statement pursuant to s 65(2) of the Evidence Act2008, submitting that all reasonable steps had been taken to secure her attendance without success. An ‘advance ruling’ about admissibility of Li’s statement was argued, to save time. The Crown foreshadowed that if Li was later located, and successfully applied to be excused from giving evidence under s 18 of the Act, the Crown would renew its application in respect of the police statement, as she would be unavailable on that basis.
Two police officers gave evidence on a voir dire, the informant, Brigette De Chirico, and the officer who took Li’s statement, Melanie Woods. De Chirico outlined the steps that had been taken to secure her attendance. Woods gave evidence of the circumstances in which Li gave her statement. She said that Li volunteered to make the statement. Woods did not suggest to her what she should put in the statement, and she did not tell Li it was in her interests to implicate the applicant. Counsel cross-examined each police officer.
In support of its application, the Crown submitted that Li voluntarily made her statement two weeks after the incident. Li had contacted Woods about making a statement. The statement was detailed, and it was broadly consistent with both McGill’s statement and the forensic evidence. In respect of her cleaning up blood at the scene, it was against Li’s interests to have made the statement, and the circumstances in which it was made meant it was likely to be reliable. Li had originally been charged in respect of this incident; however, the charges were withdrawn at the first committal mention.
The applicant’s counsel did not take issue with the fact that Li was unavailable. As Li was a criminally concerned witness, counsel argued that her statement was unreliable because it was made in her own self-interest, to facilitate the withdrawal of the charges against her. Counsel further submitted that the previous representations were unreliable because the prosecution had not excluded the possibility of coercion or threats having been made against Li by De Chirico and/or Woods. Counsel had not explored that possibility with those witnesses in cross-examination. There was also said to be an important difference in the sequence of events between the statements of McGill and Li. Even if her statement was held admissible, counsel submitted that it should be excluded as its probative value was outweighed by the prejudicial effect. The accused would suffer prejudice through being unable to cross-examine Li in respect of the differences between the statements.[8] The judge ruled that the prosecution could rely on the statement.
[8]Referring to R v Darmody (2010) 25 VR 209 (‘Darmody’).
When the trial resumed on the following Monday, Li attended court and received independent legal advice. Li then applied to be excused from giving evidence under s 18 of the Act. Li gave evidence on a voir dire outlining the nature of her relationship with the applicant. She contended that as the applicant’s de facto partner and the mother of his son, there was a potential for harm to that relationship if she gave evidence. Li said that she made the statement because police officers Smithwick and Woods had spoken to her mother (who was a junior police officer herself) at her home about the matter. Following that visit her mother, who was upset, rang Li saying that she had been bullied and that she was going to lose her job. Li otherwise did not know what those police said to her mother. Li stated that she was told by police that if she did not make a statement, she would go to gaol for 12 years, that her son by the applicant (as yet unborn) would end up in foster care, and that he (her son) would end up being a drug addict and alcoholic. Li said that she had signed the statement as true and correct, but could not remember if it was. She did not remember anything about the day of the incident. Defence counsel limited his cross-examination substantially to s 18 issues.
The Crown opposed Li’s application on the basis that there was insufficient evidence that she was the de facto partner of the applicant. Alternatively, it argued that the substance and importance of that evidence outweighed any risk of harm to the relationship.
The judge granted Li’s application not to be compelled to give evidence and excused her from giving evidence.
The Crown then renewed its application for Li’s statement (in a redacted form) to be admitted into evidence pursuant to s 65(2) of the Act.[9] The applicant’s counsel conceded that the effect of the judge’s ruling under s 18 meant that Li was unavailable. The prosecutor adopted her earlier submissions concerning s 65(2), supplemented by reference to Li’s evidence. She submitted that the judge should reject Li’s assertion on the voir dire that the police pressed, or coerced, her to make the statement in favour of the evidence of Woods that there was no coercion. The Crown also noted that Li in her evidence did not say her statement was not true. Defence counsel submitted that the evidence of the circumstances in which Li’s statement was made, including improper conduct by the investigating officers, cast doubt upon its reliability.
[9]Relying on DPP v Nicholls (2010) 204 A Crim R 306.
The judge allowed tender of the redacted statement. However, the applicant withdrew his counsel’s instructions and there was a delay of a week before the trial could resume.
On 26 May 2014, the applicant’s new counsel[10] did not seek to re-open the s 65 application, or draw on any general discretion in respect of unfairness. He applied to include in the tender much of the evidence from the voir dire that touched on the circumstances in which Li made the statement. What counsel sought to avoid was the accused being confronted with Li’s statement without an opportunity to suggest that Li considered that the statement was obtained through improper police conduct. Counsel submitted that there would be real prejudice to the accused to suggest in evidence that Li was pressured by the police into making that statement in the absence of the evidence Li gave on the voir dire. The prosecutor could not suggest that, if relevant parts of the voir dire evidence were admitted, disadvantage to the Crown would outweigh the disadvantage to the accused if that material were not admitted. The judge reasoned that it would be fair to the accused to permit a significant portion of Li’s evidence on the voir dire to go in, as it would fairly assist the defence. The parts of the transcript to be tendered were resolved and material that was solely relevant to her s 18 application was excised. A jury was then empanelled.
[10]Senior counsel also appeared for the applicant on this application.
The following morning, based on the judgment in Haddara v The Queen[11] that had just been delivered by this Court, defence counsel applied for Li’s statement to be excluded in exercise of the common law discretion to exclude evidence because it would make the applicant’s trial unfair. Unfairness followed on the inability to cross-examine Li on her statement, since the cross examination from the voir dire that was ruled admissible was limited to an aspect of the circumstances in which she made her statement. The danger was said to be that a jury could not fairly assess the weight to be attributed to Li’s statement. The Crown contended that the circumstances of the admission of the Li evidence would not create an unfair trial.
[11][2014] VSCA 100 (‘Haddara’).
The judge reserved his decision on the ruling overnight and, for reasons that are not relevant, then became unavailable to continue the trial before the empaneled jury, which was discharged. On the recommencement of the trial on 2 June 2014, the judge delivered his detailed reasons for admitting the Li evidence, being the redacted police statement and agreed parts of Li’s evidence on the voir dire.
Woods’ evidence about the circumstances in which she took Li’s statement followed the evidence she had given on the voir dire. Woods took the statement in free narrative form, with Li simply explaining what had happened on the day. She gave the statement to Li to read over, which Li did before signing it as being true and correct. Woods denied telling Li that she would go to gaol for 12 years if she did not make a statement, that her son would end up in foster care, or that he would become a drug addict or alcoholic. Woods also denied putting any pressure on Li’s mother.
The prosecutor read the statement to the jury and then played for the jury an edited audio-visual recording of Li’s evidence on the voir dire.
Deborah Reavley, Li’s mother, gave evidence that prior to Li making her statement, police officers Smithwick and Woods had come to her house when Li was not there. They did not suggest that her job was at risk if Li did not make a statement. They did mention the possibility that Li could be offered an indemnity if her evidence was useful, which Reavley later explained to Li. Reavley was upset about the state of her pregnant daughter’s life when she spoke to her. She did not suggest to her daughter what she should put in her statement, having, before the police visited, told Li that she needed to make a statement and to tell the truth. Reavley did tell Li that she felt like quitting her job because of the whole episode, not that the police officers told her she would lose it.
Smithwick gave evidence about his visit to Reavley with Woods. He said he wanted to ensure that the case did not affect his working relationship with Reavley. He did not suggest that her job was at risk. Like Woods, he denied telling Li that she would go to gaol for 12 years if she did not make a statement, or that her son would end up in foster care. De Chirico also denied making any such comments to Li. She put a number of questions based on McGill’s statement to Li in a record of interview on 21 December 2012.
The defence did not call any evidence.
Statutory provisions
Section 65(2) of the Act states:
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—
(a)was made under a duty to make that representation or to make representations of that kind; or
(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 it was made; and
(ii)made in circumstances that make it likely that the representation is reliable.
(3)The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied—
(a)cross-examined the person who made the representation about it; or
(b)had a reasonable opportunity to cross-examine the person who made the representation about it.
The key concept put in issue on the applicant’s written case — ‘not available to give evidence’ — is defined in cl 4 of pt 2 of the Dictionary at the end of the Act.[12]
[12]See s 3 of the Act. Clause 4 of pt 2 of the Dictionary was substituted by s 8 of No 52/2012. In its substituted form the relevant sub-cl (1)(f) is now enumerated as (1)(g), without any change in the language used. Hence the reference in some of the cases to cl 4(1)(f).
The rulings below
Initially, when Li did not appear, argument proceeded on the basis that Li’s unavailability was as defined by cl 4(1)(e) of pt 2 of the Dictionary. The applicant opposed admission of the statement under s 65. The prosecutor relied on s 65(2)(b)-(d). As I have noted, defence counsel disputed that the exception to the hearsay rule had been enlivened. He also sought exclusion of the statement under s 137 of the Act.
The judge was satisfied that tender of the statement under s 65 was permitted on the ground that it was a representation that qualified as an exception to the hearsay rule. It was made at the time or shortly after the asserted fact occurred and in circumstances that made it unlikely that the representation was a fabrication or by reference to s 65(2)(c), it was made in circumstances that make it highly probable that the representation was reliable.[13] Li had not disputed the truthfulness of the statement and the judge rejected the submission that there was evidence of improper conduct by the investigating officers. Further, the judge ruled that the probative value of the statement was high because it corroborated aspects of the evidence of McGill and its probative value outweighed the danger of unfair prejudice to the accused. An appropriate direction to the jury would satisfactorily deal with the dangers of unfair prejudice, identified as arising through defence counsel’s inability to cross-examine on the statement. The judge refused to exclude the statement under s 137 of the Act.
[13]The judge also considered, without deciding, that the statement may have qualified under s 65(2)(d) as being against the interests of Li at the time it was made.
As noted above, the judge later ruled that the Li evidence, which had earlier been held admissible under the s 65 exception to the hearsay rule would not be excluded under a general discretion at common law to exclude technically admissible evidence that would deny an accused a fair trial. The judge distinguished Darmody, on which the accused relied, as in that case the relevant witness had been cross-examined at committal. The judge rejected the contention that the relevant danger to a fair trial — overestimating the weight to be attributed to evidence — was likely. Li’s statement had high probative value and the submission of unfair prejudice was not predicated on a danger of improper use of evidence, an instinct to punish, or decision making not founded on proper principles of proof. Rather it was based on procedural considerations. The inability to cross-examine on a statement was not, of itself, unfairly prejudicial. The issue was to be resolved by reference to the particular facts, the character of the evidence in issue and the nature and strength of the potential prejudice. Here, the viability of cross-examination was speculative as Li stated she could no longer remember relevant events. The proper assessment of the weight of the evidence could be made by reference to other evidence, particularly with proper directions to the jury to take account of the absence of cross-examination and Li’s status in connection with the commission of the crime.
Issues
The ground of appeal contended for a substantial miscarriage of justice because the statement of Imogen Li was admitted into evidence. The ground raised, by particulars, four issues; was the witness unavailable, was the statement made in circumstances which made it highly probable that it was reliable, should the statement have been excluded pursuant to s 137 or s 135 of the Act, and did the judge apply the wrong test in ruling that the statement of Imogen Li should not be excluded pursuant to the common law discretion to refuse to admit evidence that would be unfair to an accused upon his trial.
Unavailability
Following the s 18 ruling, defence counsel conceded that Li was relevantly unavailable in the circumstances. The judge, and presumably defence counsel at the time, considered that this issue was resolved in DPP v Nicholls.[14] The trial judge was right to rule that the witness was unavailable for the purposes of the s 65 application. The applicant’s written case acknowledged that the applicant sought to overturn Nicholls. In oral submissions, counsel withdrew this particular ground accepting that the circumstances of Li’s unavailability fell within the statutory definition. However, the applicant’s counsel clung tenaciously to a subsidiary contention that, as they put it, s 18 ‘still had work to do’ in relation to s 65.
[14](2010) 204 A Crim R 306.
The applicant submitted that nothing in s 18 (or the policy underlying it) operated to limit the application of s 65 or the operation of cl 4 of pt 2 of the Dictionary. Counsel developed the submission that s 18 still has work to do in considering whether a statement should be admitted under s 65 as follows:
·A tendered statement is still evidence and thus the policy underlying s 18 must be taken into account.
·No matter what form the evidence takes, the admissibility of the statement may not be worth the risk of harming the relationship between, in this case, de facto wife and husband.
The policy behind s 18 is to be found in the Australian Law Reform Commission’s Report 26 Volume 1, Evidence Act;
A right to seek exemption is generally supported on two policy grounds:
(a) the undesirability that the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require;
(b) the undesirability that the community should make unduly harsh demands on its members by compelling them where the general interest does not require it to give evidence that will bring punishment upon those they love, betray their confidences, or entail economic or social hardships.[15]
[15][1985] ALRC 26, [529].
Counsel referred to a ruling by a New South Wales District Court judge in R v B O (No 2).[16]This decision is plainly the source of the applicant’s reasoning. In B O, the accused was charged with manslaughter of his then partner’s 11-month-old child. The Crown proposed to call the accused’s two sons, aged 11 and 7 at the relevant time, to give evidence. The judge refused to compel the boys to give evidence against their father and the Crown then applied to rely on previous representations under s 65. The previous representations were in the DVDs and transcripts of recorded interviews with police and, in the case of the older boy, his evidence given at an earlier trial when he did not object to giving evidence. The judge rejected the Crown submission that tender of a witnesses’ prior representation as evidence did not involve the witness giving evidence.
[16](2012) 15 DCLR (NSW) 317 (‘B O’).
The judge reasoned that evidence allowed pursuant to the hearsay exception in s 65 is still evidence given (his emphasis) by the witness whose prior representation it is. Although no question of ambiguity was raised, the judge stated:
If there were any ambiguity a purposive approach to the interpretation of section 18 would compel an interpretation which allowed the section work to do whenever a child’s evidence was sought to be given against a parent no matter the form it took or whether as direct or hearsay evidence: s 33 & s 34 Interpretation Act 1987 and Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355. This is because, as here, no matter in what form the evidence is given, the community interest in full exposition of available evidence may not be worth the risk to the relationship between a parent and a child should they believe their evidence brought punishment upon their parent.
When s 18 is considered at this stage, separate consideration would need to be given to the balancing process required by s 18(6) and different weight might be given to the s 18(7) factors required to be considered. One example is the children would not be subject to the rigours of being at court or in a remote CCTV room and would not be cross-examined by their father's counsel. However, in this matter, when I consider the nature of the proceedings, the substance and importance of the evidence and the nature of the relationship between the boys and their father I am still of the view that the likelihood that harm would or might result means that the nature and extent of the harm outweighs the desirability of the evidence being given. [17]
This passage encapsulates the applicant’s submission.
[17]Ibid 321–2 [28]–[29] (Haesler DCJ).
I would reject the applicant’s submission. I agree with the Crown’s submission that the form of the evidence considered in B O may explain the result in that decision, particularly the video recorded evidence given by the elder boy at an earlier trial. But here the statement was a written statement taken by an investigator before charges were laid. The process of making a statement during an investigation cannot be conflated with the process of giving evidence at a trial. The rules in respect of competence and compellability of witnesses to give evidence at a trial do not govern criminal investigation processes. Absent special arrangements, evidence that is ‘given’ is received by the court by being seen and heard from the witness box. That evidence does not exist until it is given. A document, such as a statement, may be tendered as an exhibit. An exhibit is also evidence in a trial, but while tender is a process of adducing evidence in a criminal proceeding, the process of creating the document tendered — in this case making a statement — is not. Making a statement to police is neither a process of ‘giving’ evidence, nor a process in a criminal proceeding as that term is defined by the Act.
In its written case, the Crown correctly submitted that when a statement is admitted under s 65 the maker of the statement is not ‘required to give evidence.’ As the presiding judge noted in argument, a person may only object ‘to being required to give evidence’ when that occasion arises. If the objection is upheld, the person must ‘not be required to give evidence.’ That was what occurred. Ms Li did not give evidence. The police officer who took her statement gave evidence to the jury of her previous representations. The prosecutor tendered the statement and read it to the jury. It is untenable to contend that in such circumstances Ms Li gave evidence.
Neither did Ms Li give evidence when she made her statement to police. Section 18 applies only in a criminal proceeding.[18] It has no application in criminal investigation and does not operate to permit a relative of the accused (to use a general description) to object to being required to make a statement to police. Any person may decline to make a statement to investigating police. The policy considerations underlying s 18 have nothing to do with whether a relative (of, presumably, a suspect) can be required to make a statement to police. Section s 18 has no ongoing application after successful objection by the maker of the statement to the evidence of an investigator permitted under s 65 to produce that statement. The plain language of s 65(1) does not limit the character or features of a previous representation that would otherwise be excluded by the hearsay rule by reference to s 18 or the underlying policy justification for the rule. The four categories of circumstances in which a representation was made that qualify a previous representation as admissible in exception to the hearsay rule are set out in s 65(2).
[18]A term defined in the Dictionary.
Nothing in s 18 (or the policy underlying it) or in s 65 or in cl 4 of pt 2 of the Dictionary operated to limit the application of s 65 or the operation of cl 4 of pt 2 of the Dictionary in the manner suggested by the applicant. The applicant’s submission that s 18 ‘has work to do’ was misconceived.
Reliability
The applicant submitted that the judge below was wrong in finding that Li made the statement in circumstances where it was highly probable that it was reliable. To the contrary, in the circumstances in which Li made the statement — her claim, in effect, that police forced her into making the statement — it was likely that the contents of the statement were unreliable.
The judge was satisfied that Li made the statement in circumstances that made it unlikely that it was fabricated and that it was highly probable that the representation was reliable. I can see no error in the judge’s analysis of the evidence on the voir dire. The trial judge saw and heard the relevant witnesses give evidence of the circumstances in which Li made her statement. The prosecutor cross-examined Li about her claim of coercion. It was open to the judge to reject Li’s version of events and prefer the police evidence. Li had not disputed the truthfulness of the statement, nor had she resiled from any particular representation. The statement contained the usual acknowledgment regarding the fact the statement is true and correct and made in the belief that a person making a false statement is liable to the penalties of perjury. For the purposes of ruling in respect of reliability, the trial judge rejected the evidence of improper conduct by the investigating officers and I see no error in that call. In addition, other evidence, particularly that of McGill and that of the forensic examiners, independently supported much of Li’s statement.
Moreover, reliability of the statement was in issue. It was unusual that a witness alleging that improper conduct induced a statement would not also say that consequently the statement was untrue, or incomplete, or misleading. Yet defence counsel did not take the opportunity on the voir dire to explore whether the witness adhered to the truthfulness of the statement. Although Li had not been required for cross-examination at committal, the exchange with the prosecutor over the admission of relevant parts of the voir dire transcript revealed that counsel did not contemplate at the time that the transcript would go into evidence before the jury. It cannot be thought that there was any forensic risk for defence counsel in pursuing that line of questioning.
In R v Suteski,[19] Wood CJ at CL rejected a submission that s 65 of the Act should be read down to the effect that, had the legislature contemplated the possibility of the admission into evidence of an out of court representation made by a co-accused without the accused having had the opportunity to cross-examine the maker, then it would have made express provision for that to occur, or that it would have, at least, earned a mention in the Australian Law Reform Commission Report. His Honour said, in a remark that is apposite in this context:
I am not persuaded that the Act should be read down on any such assumption. By reference to ordinary rules of statutory interpretation, where a witness answers the description of an ‘unavailable person’ then s 65 should apply to its full effect.
This follows from the very precise and careful scheme of the Act, which provides for specific exceptions to the Rules otherwise stated, as well as for the mandatory or discretionary powers of exclusion contained in ss 135–137.
If s 65(2) was to be read down in the way suggested, then that would deprive it of all utility, since it assumes that the maker of the representations is not available for cross-examination. As mentioned later, however, I would regard that circumstance as a relevant consideration when the tender is considered in the light of s 135 and s 137 of the Act. [20]
[19]R v Suteski (2002) 56 NSWLR 182.
[20]Ibid 197 [99]–[101].
Further, despite any prospect that the statement may have been self-serving, as defence counsel contended, aspects of the statement clearly tended to be incriminatory of Li and were, in my view, appropriately characterised as against her interests at the time she made the statement.[21] Section 65(7)(b) provides that a representation is taken for the purposes of ss (2)(d) to be against the interests of the person who made it if it tends to show that the person has committed an offence for which the person has not been convicted. The Crown correctly submitted that Li’s statement clearly contains admissions that are against her interest as her actions in cleaning away the victim’s blood would tend to show that she had committed an offence by reference to s 323 of the Crimes Act 1958. Most of the remaining representations contained in the statement would then become admissible to provide context for the inculpatory representations. Although the trial judge left the point open, I would have been satisfied that tender of the statement was also permitted under s 65(2)(d).
[21]Ibid 196 [94].
Evidence Act discretions
The applicant submitted that s 137 applied because there was a real danger of unfair prejudice, since the applicant could not cross-examine Li on the contents of her statement. The fact that she had not positively said her statement was true exacerbated that danger. The section provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The Crown submitted that the balance clearly lay in favour of admitting Li’s statement into evidence. The statement was highly probative of the Crown case. She was virtually an eyewitness to the shooting. The Crown submitted that, in the circumstances of this case, the fact that the applicant could not cross-examine Li about her statement did not amount to significant unfair prejudice. All of the witnesses who could give evidence regarding the matters raised by Li in the cross-examination on the voir dire that was before the jury were called as witnesses in the trial and were available to be cross-examined. All matters relevant to the jury’s assessment of the honesty and reliability of the contents of Li’s statement could be fully explored by the defence.
The Crown emphasised in its written case that the trial judge specifically directed the jury in his charge as to why it was that Li’s evidence had been received in the way it had. As a result, that evidence had not been tested by cross-examination and that this was ‘an important consideration’ that the jury were to take into account in deciding whether to act on that evidence. The judge also gave an ‘unreliable witness’ direction regarding the Li evidence.[22]
[22]Evidence Act 2008 s 165.
The question is whether there was a real risk that the jury in some way unfair to the applicant could misuse the Li evidence.[23] That assessment is not made by considering the Li evidence in isolation.[24] In Dupasv The Queen,[25] this Court held that the application of s 137 of the Act involves three steps: first, an assessment of the probative value of the evidence; second, an assessment of the danger of unfair prejudice to the defendant; and, third, a weighing of the probative value of the evidence with any danger of such prejudice. If the latter outweighs the former, the court must refuse to admit the evidence. Further, in assessing the probative value of the evidence, it is necessary to assume its truthfulness, although not its reliability.[26] The judge applied the correct test when he stated that the issue was to be resolved by reference to the particular facts, the character of the evidence in issue and the nature and strength of the potential prejudice.
[23]R v BD (1997) 94 A Crim R 131, 151, approved by McHugh J in Papskosmas v The Queen (1999) 196 CLR 297, 325 [91]–[92]. See also PCR v The Queen (2013) 235 A Crim R 302, 307 [38]; Bray (A Pseudonym) v The Queen [2014] VSCA 276, [68].
[24]Aytugrul v The Queen (2012) 247 CLR 170, 185–186 [30].
[25](2012) 40 VR 182.
[26]Peterson (A Pseudonym) v The Queen [2014] VSCA 111, [51].
I accept the Crown’s submission about why the Li evidence was of considerable probative value, and in so concluding I refer back to my reasons for concluding that the judge did not err in ruling that the evidence was reliable. The applicant submitted that the evidence, untested by cross-examination, lacked probative value for that reason. In evidence, McGill, who was hostile, did not implicate the applicant, having suggested to other witnesses that he was shot in a drive-by incident. The key issue was the identity of the shooter. The trial judge clearly, and correctly, regarded Li’s evidence as highly probative. That conclusion was reasonably open having regard to the content of her evidence, particularly in the context of McGill’s account.
The applicant submitted that the illegitimate prejudicial effect was that the jury would place too much weight on Li’s statement for two reasons. She could not be cross-examined. I will shortly say more about the applicant’s inability to test the evidence by cross-examination. Secondly, her statement was borne of emotion, hatred, and prejudice. However, in developing this submission the applicant’s counsel did not, and could not, characterise the whole statement in that way. They complained about a part of Li’s statement, which the judge had permitted over objection while redacting other parts of the statement. The inadmissible section that might have been excised was the springboard for the complaint of improper use of the statement. Li had stated she was in a long-term relationship with the accused, which she thought controlling.
There was no ground of appeal complaining that the judge erred in permitting this part of the statement to go into evidence. The sole ground was that the judge erred in admitting Li’s statement. Counsel accepted in argument that they could not advance a complaint about a wrongly admitted part of the statement as an aspect of undue prejudice. If wrongly admitted, the decision should have been the subject of a separate ground of appeal. We gave the applicant an opportunity to seek leave to amend his grounds and for both the applicant and the Crown to file further written submissions. I deal with the proposed new ground below.
I have considered Li’s statement in its totality, ignoring the contentions advanced in support of the proposed new ground 2. I do not consider there was a real risk of the jury adopting an illegitimate form of reasoning or giving the evidence undue weight, or of the jury relying on the evidence on a basis that was logically unconnected to the issues in the case, for example, by provoking some irrational, emotional or illogical response. The applicant’s real complaint was that some aspects of the statement ought to have been excluded as not relevant to the key issue of the identity of the shooter. That was the prejudicial aspect of the statement.
In the circumstances, the trial judge adopted appropriate measures to minimise the risk of any unfair prejudice and the danger that unfair prejudice might outweigh[27] the considerable probative value of the Li evidence. As the Crown submitted, the trial judge specifically directed the jury in his charge about the nature and use of the Li evidence and of the need for care. The trial judge was right to decline to exclude Li’s statement under s 137 of the Act. The applicant’s complaint must be limited to the proposed ground 2.
[27]Let alone substantially outweighed as s 135 requires.
The applicant also contends that the trial judge erred in the exercise of his discretion under s 135 of the Act. The section provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. The applicant does not suggest that the evidence might have been misleading or confusing or to have caused or resulted in undue waste of time. Although it is not clear that the judge was invited to exercise that discretion, in the circumstances, consideration of s 135 of the Act must follow the conclusion reached under s 137.
The residual common law discretion
The applicant contended that the judge misapprehended the applicable test when ruling on the submission that he refuse tender of the Li statement because its reception would be unfair to the applicant on his trial. He submitted that this Court made clear in Haddara,[28] that the discretion to refuse to admit evidence for want of fairness upon the trial of an accused, does not involve a balancing exercise between the probative value and prejudicial value of the evidence. Yet in his ruling, the Judge appeared not to accept that this was the case. In any event, for the reasons articulated in argument before the judge, he ought to have determined not to admit the evidence in the exercise of this discretion.
[28][2014] VSCA 100 (Redlich and Weinberg JJA, cf Priest JA dissenting).
The Crown submitted that the judge applied the proper test, but, even if his Honour did misapprehend the correct test, based on its submissions in respect of s 137, the inability of defence counsel to cross-examine Li did not lead to the applicant receiving an unfair trial. Moreover, as the judge correctly observed in his ruling on this discretionary ground of exclusion, the complaint of unfairness was entirely speculative because cross-examination of Li, had it occurred, was likely to be entirely unproductive for the defence.
In Haddara, Redlich and Weinberg JJA said that:
Whether or not the first and second discretions described above are better viewed as specific illustrations of a general discretion, we consider it to be clear that there is a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial. That general discretion is an indispensible tool if a trial judge is to have the capacity in all circumstances to discharge their overriding duty of ensuring that the accused receives a fair trial. An examination of authority strongly supports this conclusion.[29]
The first discretion referred to by their Honours is where the prejudicial effect of the evidence outweighs its probative value, which is now reflected in the mandatory obligation to exclude such evidence under s 137 of the Act. The second discretion arises where it would be unfair to use an admission or confession in evidence against the accused. The discretion, known as the Lee discretion, is generally similar to the discretion under s 90 of the Act.
[29]Ibid [16].
The particular occasions for the exercise of the common law discretion will be unusual since admissible evidence will not commonly attract the exercise of the discretion. The primary consideration may be that identified by McHugh J in Ridgeway v The Queen[30], when he said:
Ordinarily, questions concerning unfairness to the accused in admitting evidence are dealt with under the general discretion of a judge in a criminal trial to exclude evidence whose probative value is outweighed by its prejudice to the accused’s defence. [31]
The essence of the applicant’s allegation that he received an unfair trial was that the Li evidence generally could not be tested by cross-examination. In so contending the applicant was merely reframing his submissions in respect of unfair prejudice put in the context of whether s 137 applied to exclude the Li evidence. The judge undertook that particular analysis and I have dealt with it above. In this context, I do not follow how the applicant contends that the judge misapprehended the applicable test.
[30](1995) 184 CLR 19.
[31]Ibid 83.
In Bray (A Pseudonym) v The Queen,[32] this Court considered, on an interlocutory appeal, whether, on a charge of rape, evidence in the form of the complainant’s statement and a transcript of her cross-examination at committal should be excluded under either s 137 or the general unfairness discretion specifically recognised and explained in Haddara. The complainant died prior to trial and the prosecutor successfully applied under s 65 of the Act to have that evidence admitted at trial.
[32][2014] VSCA 276 (‘Bray’).
The appeal was dismissed. Santamaria JA (with whom, Maxwell P and Weinberg JA agreed) stated the question to be whether it would be necessarily unfair to have a conviction based upon evidence which cannot be the subject of cross-examination at trial, the question raised here by the applicant. His Honour noted that a strong direction can ameliorate any unfairness at trial and I have already noted the content of the judge’s directions which dealt with the inability to cross-examine Li, an ‘unreliable witness’ direction, and the need to approach the evidence with particular care.
In Bray, Santamaria JA, following a thorough review of authorities where convictions have been upheld notwithstanding the fact that important evidence has been adduced on behalf of the Crown without the defence having had any opportunity to cross-examine the witness(es) in question, concluded that:
On the weight of authority, therefore, to lead evidence of the kind to be adduced in the present case will not necessarily render the trial unfair. Nor can it be said that its probative value is necessarily outweighed by its likely prejudicial effect. There are mechanisms available to ensure a fair trial, including the capacity of the trial judge to give appropriate and strong directions to the jury regarding the dangers of giving too much weight to untested statements.[33]
[33]Ibid [101].
His Honour’s conclusion is apposite in the present circumstances. It is convenient to note what his Honour said of recent UK authority, which expressed with clarity the issues about a fair trial concerning a s 65 tender and cross-examination.
In R v Al-Khawaja, the appellant, a physician who had been convicted of the indecent assault of two female patients, complained of the fact that a witness statement by one of them had been received at his trial. The patient in question had committed suicide prior to the commencement of the trial. The issue on appeal was whether the admission of her police statement, upon which there had been no cross-examination, was contrary to the accused’s right under art 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms scheduled to the Human Rights Act 1998.
The Court of Appeal held that there had been no breach of the appellant’s right to a fair trial. The ability to cross-examine the deponent was but one aspect of that right, and the question was ‘whether the proceedings as a whole, including the way in which evidence was taken, were fair’.[34]
...
It was important, in the Court’s view, that the deceased had been the only witness against the appellant. Her evidence went directly to the commission of an indecent assault upon her by the accused. It was noted that the defence could attack the accuracy of her statement through the testimony of other witnesses, and through expert evidence. It was held that the trial judge had properly considered legislative provisions on the admission of such evidence in order to ensure the rights of the accused were protected. It was said that the jury could weigh the limitations of the evidence with appropriate directions.
That case ultimately went on appeal to the European Court of Human Rights. That Court held that there would be a breach of art 6(3)(d) of the Convention in cases where an accused was denied the opportunity to cross-examine, and where the evidence led was ‘sole or decisive’.
However, in R v Horncastle, the Supreme Court of the United Kingdom affirmed the decision of the Court of Appeal in Al-Khawaja. It declined to follow the decision of the European Court of Human Rights in that case. In doing so, it referred to the relevant English legislation, including the ‘rigorous conditions for admissibility’ of hearsay evidence outlined in the Criminal Justice Act 2003 (UK) and the ‘provisions ... which enable the defence to test the credibility and reliability of the evidence’.
The Supreme Court noted that its ruling accorded with the position in ‘other established common law jurisdictions, namely Canada, Australia and New Zealand’. In commenting on s 65(2) of the Evidence Act 1995 (Cth), the Court said that ‘the scheme of the Australian statute is both nuanced and circumscribed, with a view to ensuring the overall fairness of the proceedings’.[35]
[34]Ibid [94]–[95] (citations omitted).
[35]Ibid [97]–[100] (citations omitted).
The applicant’s submission focuses too narrowly on the circumstance that trial counsel could not cross-examine Li without sufficiently articulating why, in the context of the evidence at, and conduct of, the trial as a whole, the applicant’s trial was unfair. The issue arises as a particular of the appeal ground that there has been a substantial miscarriage of justice because the statement of Imogen Li was admitted into evidence. On my assessment, not just of the judge’s reasons for his ruling, but also his discussions with counsel during argument, the judge when ruling the Li evidence admissible plainly had appropriately within his contemplation the question of whether the trial procedure, as a whole would be fair to the accused. For the reasons I have already expressed, the applicant has not persuaded me that his trial was not fair.
The proposed ground 2
The applicant’s proposed second ground is that there was a substantial miscarriage of justice because the trial judge permitted the prosecution to adduce in evidence that part of Li’s statement that is highlighted in the following paragraph. The applicant contends that passage was irrelevant and highly prejudicial; alternatively, the danger of unfair prejudice to the applicant outweighed the probative value of the impugned passage.
Context is important. Li’s tendered statement included the following matters, with the impugned passage underlined:
I met Tim through one of my ex-boyfriends. … Soon after we met we started a relationship and we have been in that relationship since. I am now six months’ pregnant. Tim is the father. During the relationship Tim was very controlling. He controlled all the money, everything I did and everyone I spoke to. I was scared of Tim. I do everything that Tim asks me to do. [She then described their rental accommodation.] I didn’t work so Tim paid the rent.
...
I didn’t look at Tim when he came into the kitchen because I knew that he was angry and he scares me when he is angry. I looked over when Tim grabbed the gun, then kept doing the dishes. There was nothing I could do. … I then heard the gun go off. It was loud and it scared me. I stayed in the kitchen because I didn’t know what to do.
…
The next day Tim came home … I asked him where he had been and he said ‘don’t worry about it’. It pissed me off that he didn’t come after what had happened. Tim and I didn’t talk about the shooting at all afterwards.
The applicant objected to the impugned and other passages. Parts of the statement were excluded, such as ‘I have seen Tim scare people with the gun before, including myself’ and ‘I didn’t confront him about it because I knew he would turn on me … he would probably shoot me too’.
The initial question for the judge was whether the impugned passage was relevant. Given the conflict between McGill’s assertions in evidence that he was the victim of a drive-by shooting, his prior inconsistent police statement that he was shot by the applicant, and Li’s evidence, a critical issue in respect of Li’s evidence was whether her representations about what she observed concerning the conduct of the applicant were true.
The applicant contended that Li’s statement was not a true account and could not be relied on because she had been coerced by police to make the statement. He contended that the impugned statement said nothing about whether her observations in the house at the time of the alleged shooting were true or accurate. Had the jury accepted that the applicant controlled the money, or was a very controlling person, or that she was scared of him during their relationship, that acceptance could not rationally affect the jury’s assessment of whether her statements about her observations in the house at the time of the alleged shooting were truthful or accurate. Those observations were not more, or less, likely to be true depending on whether the jury accepted the impugned passage. Further, the impugned passage could not rationally affect the jury’s assessment of the defence claim that Li had been coerced by police to make the statement.
The Crown first submitted that the relevant context was that Li’s statement was admitted under s 65 and that she did not give evidence. Thus, the applicable credibility evidence rule was found in s 108A, not s 102. I agree.
Consequently, credibility evidence about a person who made the prior representation is not admissible unless the evidence ’could substantially affect the assessment of the person’s credibility’. Section 108A(2) provides that:
Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to—
(a)whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and
(b)the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.
The judge made no finding that enlivened either of these considerations, but that did not limit the assessment of the character of the impugned evidence. The Crown submitted that the impugned passage was relevant to enable the jury to assess Li’s statement about the events in the house as the nature of her relationship with the applicant, and her state of mind towards him could substantially affect the jury’s assessment of her credibility. Why, the jury might reason, would Li fail to do or say anything when her boyfriend had just shot someone? According to the Crown submission, the impugned passage revealed a credible answer.
Although evidence of hostile relations between a witness and a party may be relevant to an issue, here the evidence amounted to no more than an assertion of the applicant’s bad character. The Crown’s suggestion for a path of credibility reasoning is not persuasive. There was no issue in the trial about Li’s role in the events. The applicant did not put in issue why Li did not do something when the applicant retrieved the gun from the kitchen where she was or later call the police. Li’s evidence was that she hated junkies (referring to McGill) and did not want the blood everywhere, over her stuff and accessible to her dogs. She cleaned up the blood of her own initiative. She neither did do so at the applicant’s request or demand, nor to hide what happened.
The judge correctly accepted that Li’s credibility was in issue, but the judge was persuaded into error by the prosecutor’s contention that the impugned passage, particularly the reference to being scared of the applicant, was relevant to Li’s credibility and reliability in the context of where, and by whom, McGill was shot. It is difficult to discern the judge’s reasoning for excluding some passages from the statement that deal with Li’s fear of the applicant while admitting the impugned passage. As with the statements that were properly excluded, I am not persuaded that the impugned passage could rationally affect the jury’s assessment of the probability that Li’s evidence of what she saw and heard in the house was true. The judge erred in not excluding the impugned passage as irrelevant.
The remaining question raised by this ground is whether, because evidence was wrongly admitted, there has nevertheless been no substantial miscarriage of justice. One basis on which that conclusion could be reached is because it was inevitable that the jury would have convicted the applicant in any event.[36] In Baini,[37] the plurality observed that in some cases, it may be possible for an appellate court to conclude that there has not been ‘a substantial miscarriage of justice’ because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the applicant was guilty of the crime alleged. Several observations were made about this possibility. The nature of the error, irregularity or cause of complaint contemplated will often prevent that conclusion from being reached by an appellate court on the record of the trial given the ‘natural limitations’ that attend the appellate task. The appellate court’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been ‘a substantial miscarriage of justice’. The court’s satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account in answering the question posed by s 276(1)(b) of the Criminal Procedure Act, 2009. The inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. That is to say, in this case, the question is whether an acquittal on the charge was not open.
[36]Section 276 Criminal Procedure Act 2009; Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659.
[37]Baini v The Queen (2012) 246 CLR 469, 480 [28]–[32] (‘Baini’).
As this Court observed about Baini in Andelman v The Queen,[38]
[38](2013) 38 VR 659.
The following salient points affecting the disposition of this appeal emerge from the majority’s analysis:
·Section 276 is not to be interpreted solely by reference to the interpretation given to the common form criminal appeal proviso in Weiss v The Queen. Comparing ‘a statute with its legislative predecessor ... is only a useful exercise if doing so illuminates the actual text of the new provision’.
·There is no ‘single universally applicable’ definition of a ‘substantial miscarriage of justice’. That is because the possible kinds of miscarriage of justice dealt with by s 276(1) are ‘too numerous and too different to permit prescription of a singular test’.
·With respect to ss 276(1)(b) and (c) (with which this appeal is concerned), the types of substantial miscarriage of justice include cases where ‘there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial’.
·Those paragraphs also cover cases where ‘there has been a serious departure from the prescribed processes for trial’.
·A ‘substantial miscarriage of justice’ may occur where there has been a ‘departure from process’ even if the ‘verdict was open or it is not possible to conclude whether the verdict was open’.
·The question whether there has been a ‘substantial miscarriage of justice’ ‘may be affected by the strength of the prosecution case’. In such cases, however, the Court of Appeal must be aware of the ‘natural limitations that attend the appellate task’.
·A finding that the conviction was ‘inevitable’ is merely ‘relevant’ to the Court’s determination of whether there has been a substantial miscarriage of justice. It does not conclude the issue.
·If it is submitted that the verdict was inevitable, the appellant need show ‘no more than that, had there been no error, the jury may have entertained a doubt’.
·In assessing ‘inevitability’, the Court of Appeal must ‘decide that question on the written record of the trial’.
·In cases such as Baini where evidence has been wrongly admitted or excluded, the Court cannot determine that there has been no substantial miscarriage of justice ‘unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made’.[39]
[39]Ibid 677–8 [85] (citations omitted).
The applicant submitted that the Crown case against him was hardly overwhelming, based as it was on the prior inconsistent statement of an unfavourable witness, and the statement of the accused’s de facto partner who did not give evidence. The applicant was already facing a degree of prejudice based on evidence of his involvement with drugs. The impugned passage would have added to the prejudice against the applicant by turning the jury against him. The applicant described the impugned passage as ‘gratuitous character assassination,’ classic evidence of bad character because it demonstrated that the relationship between the applicant and the witness was one of fear and control. Further, the judge excluded other passages that put the like complexion on their relationship.
I remain unpersuaded that the wrongful admission of the impugned passage made any difference to the outcome. Having considered the course of the whole trial, conscious of the natural limitations that attend the appellate task, I am satisfied that the impugned passage, though irrelevant, was peripheral. The Crown submitted, and I agree, that the correlation between Li’s statement and McGill’s statement was the foundation of its case. It was not suggested that the applicant had any propensity based on his character or activities. McGill’s police statement was the foundation of the Crown case that the applicant had fired the shot that injured him. Li’s statement supported that central proposition.
Plainly, leaving aside the impugned passage, the circumstances of the incident cast considerable light on the applicant’s drug dealing activities and his controlling and intimidating ways. So much was unavoidable from the evidence of the interaction between the applicant and McGill. The motive for the shooting was an unpaid drug debt. The background evidence was not essentially in contest in the trial. Further, in a detailed direction, the judge instructed the jury not to reason from the applicant’s involvement in dealing drugs or from his character that he was more likely to have committed the offence charged and the judge explained the legitimate use of such background evidence. The jury must be taken to have accepted the correlation between McGill’s police statement and Li’s evidence. Once that is understood, the applicant’s conviction was virtually certain. It cannot be said that, had there been no error, the jury may have entertained a doubt.
Conclusion
I would grant the applicant leave to amend his application for leave to appeal by adding ground 2, but I would refuse the application for leave to appeal against conviction.
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