Gesler v State of Tasmania - [2023] TASCCA 10

No judgment structure available for this case.

[2023] TASCCA 10

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Gesler v State of Tasmania [2023] TASCCA 10
PARTIES:	GESLER, Corey Mitchell
v
STATE OF TASMANIA
FILE NO:	2919/2022
DELIVERED ON:	20 September 2023
DELIVERED AT:	Hobart
HEARING DATE:	24 August 2023
JUDGMENT OF:	Estcourt J, Geason J, Porter AJ
CATCHWORDS:

Evidence – Admissibility – Hearsay – Exceptions: First-hand hearsay – Hearsay evidence of previous representations may be admitted if representor not available to give evidence – Where witness refused to give evidence – Person taken to be unavailable if all reasonable steps have been taken to compel person to give evidence – Meaning of "reasonable steps" taken.

Evidence Act 2001, s 3B.
R v Suteski [No 4] [2002] NSWSC 218; ZL v The Queen [2010] VSCA 345; Tasmania v Dolega [2016]
TASSC 65, 26 Tas R 312, applied.
Aust Dig Evidence [1127]

Criminal Law – Evidence – Hearsay – Particular matters – Maker of statement not available – Where witness refused to give evidence and taken not to be available – Where evidence of representations made by person admissible if made shortly after occurrence of asserted fact and in circumstances that make fabrication unlikely – Evidence of representations also admissible if made against interest – Trial judge admitted parts of records of police interviews with accomplices refusing to give evidence – Evidence properly admitted.

Evidence Act 2001 ss 65(2)(b) and (d).
Conway v The Queen [2000] FCA 461, 98 FCR 204; R v Toki (No 3) [2000] NSWSC 999, 116 A Crim R 536;
R v Suteski [No 4] [2002] NSWSC 218; Harris v The Queen [2005] NSWCCA 432, 158 A Crim R 454;
Tasmania v Dolega [2016] TASSC 65, 26 Tas R 312, applied.
Sio v The Queen [2016] HCA 32, 59 CLR 47, referred to.
Aust Dig Criminal Law [2802]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Improper admission or rejection of evidence Where trial judge determined that witnesses refusing to give evidence were unavailable to give evidence – Where evidence of previous representations of witnesses conditionally admissible – Trial judge ruled parts of records of interview of witnesses admissible and refused to exclude evidence – Evidence properly admitted – Probative value not outweighed by danger of unfair prejudice – Appropriate directions given to jury by trial judge about absence of witnesses and use of evidence – No miscarriage of justice.

Evidence Act, ss 65(2), 137.
R v Omar [2022] NSWSC 371; R v Clarke [2001] NSWCCA 494; Gilbert v The Queen [2000] HCA 15, 201
CLR 414, applied.
Aust Dig Criminal Law [3471]

REPRESENTATION:

Counsel:

Applicant: T Kovacic
Respondent: M Figg

Solicitors:

Applicant: Brooke Winter Solicitors
Respondent: Director of Public Prosecutions

Judgment Number:	[2023] TASCCA 10
Number of paragraphs:	56

Serial No 10/2023

File No CCA 2919/2022

COREY MITCHELL GESLER v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J GEASON J PORTER AJ 20 September 2023
Orders of the Court:

1 Leave to appeal granted.
2 Appeal dismissed.

Serial No 10/2023

File No CCA 2919/2022

COREY MITCHELL GESLER v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J 20 September 2023
The appeal

1 The applicant, Corey Mitchell Gesler, has sought to appeal against his convictions of 11 October 2022 after he was found guilty by a jury of one count of aggravated armed robbery and one count of committing an unlawful act intended to cause bodily harm.
2 The applicant appeals on the grounds that:

"1 The learned trial judge erred in admitting the statement of Clinton Wilson
into evidence.
2 The learned trial erred in admitting the statement of Jake Herlihy into evidence.
3 The learned trial judge improperly elevated the importance of Jake Herlihy's statement in his address to the jury."

3 Ground 3 is not pursued.
4 Appeals of this kind are provided for in the Criminal Code, s 402(1):

"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."

5 The miscarriage of justice in this case must be shown to arise as a consequence of the admission of the impugned evidence.
6 The respondent contends that the learned trial judge did not err in determining that Mr Wilson and Mr Herlihy were unavailable pursuant to s 3B of the Evidence Act 2001 and also contends that the his Honour did not err in determining that certain representations made by Mr Wilson and Mr Herlihy were admissible upon the trial, or in failing to exclude the representations pursuant to s 137 of the Evidence Act.

Background

7             The applicant was originally charged with attempting to commit murder contrary to s 158 and 299 of the Code and aggravated armed robbery contrary to s 240(4). He was jointly charged with Mr Wilson, Mr Herlihy, Sammual Wilmot and Madelon Pace.
8             Subsequently Mr Wilson, Mr Herlihy and Mr Wilmot each pleaded guilty to one count of aggravated armed robbery contrary to s 240(4) of the Code, and one count of committing an unlawful act intended to cause bodily harm contrary to s 170. Mr Wilson was sentenced on 9 December 2019, Mr Herlihy was sentenced on 24 February 2020, and Mr Wilmot was sentenced on 9 December 2021. Ms Pace pleaded guilty to two counts of being an accessory after the fact to the crimes committed by
2   No 2919/2022

the applicant, Mr Wilson, Mr Herlihy and Mr Wilmot, and was sentenced on 26 November 2019. The
applicant's trial commenced on 20 June 2022.
9            The following summary of the State's case at trial is taken from the estimable written submissions of counsel for the respondent, Ms Figg:
"Summary of the Crown case against the applicant
10          The State's case against the applicant was adduced in evidence between 20 June 2022 and 29 June 2022. Following the close of the Crown case, the applicant neither gave nor adduced evidence.
11          The State's case at trial was as follows:

(1)

On 8 January 2018 Alexander Friend ('the complainant') withdrew $5000 in cash from the bank in order to buy methylamphetamine. The cash was observed by Sammual Wilmot.

(2)

The complainant and Mr Wilmot drove to a location in Ravenswood and Mr Wilmot purchased two '8 balls' of methylamphetamine for $2,500, using the complainant's money that had had withdrawn from the bank earlier in the day (Vol 2, T14).
(3) The complainant gave Mr Wilmot one of the '8 balls' and kept the
other for himself.

(4)

The following evening, the 9th of January 2018, the complainant received a text message from Mr Wilmot asking him to go to his unit. Mr Wilmot lived at 33/1 Allwinton Court, Waverley.

(5)

The complainant went to Mr Wilmot's unit sometime after 10:30pm. He drove there in his father's yellow Mazda ute, and parked it in the carpark behind Mr Wilmot's unit.

(6)

Prior to the complainant's arrival at the unit, Mr Wilmot, the applicant, Jake Herlihy and Clinton Wilson had formed a plan to rob the complainant of cash and drugs, and were all present in Mr Wilmot's unit, along with Madelon Pace.

(7)

The complainant went to the back door of the unit and knocked on the door. He was carrying the '8 ball' he had purchased the previous day, and $2,400 of the cash he had withdrawn.
(8) The complainant entered the unit and was placed in a 'choke hold' by
an unknown person.
(9) Mr Wilmot punched the complainant once to the jaw whilst he was
still being held in a 'choke hold'.
(10) The complainant lost consciousness.

(11)

The complainant ended up on the floor and was assaulted for a period of time by Mr Wilson and the applicant. The applicant pinned the complainant to the ground. He elbowed him to the back of the head whilst he was lying face down on the floor. The applicant punched the complainant to the head, face and body repeatedly. The complainant was struck with a wooden chair leg to the face and body. Mr Herlihy kicked him to the face.

(12)

The applicant asked the others in the house for duct tape and at some point, electrical tape was wound around his neck and/or face by either Mr Wilson or the applicant.
3   No 2919/2022

(13) Mr Wilson took the complainant's car keys and drove the
complainant's ute around to the front of the unit.
(14) The complainant was dragged and carried out the front door of the unit by the applicant and others, and was placed in the tray of his ute.
(15) Mr Wilson drove the ute away from the unit.
(16) The complainant regained consciousness as the ute was being driven.
He attempted to get out of the ute and was flung out onto the road.
(17) The complainant was located by Dylan Enkelaar on the side of the road. He was severely injured, covered in blood and unable to speak. Black electrical tape was wrapped around his neck. Emergency services were called.
(18) Mr Wilson continued on and drove the complainant's ute into
Waverley Lake. He then returned to Mr Wilmot's unit.
(19) The applicant and Mr Wilson left the unit on a motorcycle. They took
most of the complainant's cash and drugs.
(20) Mr Herlihy and Ms Pace attempted to clean the blood inside the unit.
(21) Mr Herlihy, Mr Wilmot and Ms Pace caught a taxi to Mr Herlihy's mother's house. They took with them a plastic bag containing the wooden chair leg and items that had been used for cleaning. When they arrived at Mr Herlihy's mother's house, they disposed of the plastic bag in a rubbish bin.
(22) The complainant was taken to the Launceston General Hospital by ambulance. After examinations and scans were conducted he was admitted to intensive care and placed in an induced coma. He had sustained serious, life-threatening injuries." (Transcript references omitted.)

10           At trial the defence case was that whilst the applicant agreed that he was present at the Allwinton Court unit on the evening of 9-10 January 2018, he said that he was not involved in the planning of the crimes, nor did he participate in any of the physical acts. It was suggested that the applicant was in the bathroom of the unit with Ms Pace whilst the crimes occurred.
11          The relevant course of the evidence at trial is set out in the written submissions of the applicant's counsel, Mr Kovacic, as follows:
"The Trial
15          The Complainant could not identify anybody who assaulted him.
16          Madeline Pace gave evidence to the effect:

(a) She put the Applicant, Clinton Wilson and others at the scene.
(b) She went to the bathroom with the Applicant to have sex; At the time the Complainant arrived at the unit, and they were engaged in coitus.
(c) When they had finished, she walked out of the bathroom and observed that something had happened.
(d) Jake Herlihy was so affected by drugs that he couldn't speak.
17          Under cross-examination, under s 38, she stated:
4   No 2919/2022

(a) There was a discussion between Herlihy and Wilson about getting money from the Complainant.
(b) She told police that it was Jake Herlihy's idea.
(c) She conceded that she told police she had witnessed to people assault the complainant but maintained that the Applicant had been in the bathroom with her.
(d) She told police that one of the assailants, Jake Herlihy, had kicked the Complainant.
(e) She denied writing in her phone "Corey just flogged this poor bloke. There's blood everywhere…"
(f) She was under the influence of drugs when she spoke with the police. The jury were told that Mr Wilson was to be the next witness, before being sent to the jury room briefly, and [told] that there were some matters to sort out with Mr Wilson prior to that occurring.

18
19          It appears the learned trial judge was informed "off camera" of a reluctance of Scott Wilson to give evidence. The Court was told by prison staff, in the absence of the jury that the witness refused to be brought to court. The exchange was not on Oath.
20          His Honour took the view, that unless Counsel for the state submitted otherwise, that the witness should not be forced into court.
21          Counsel for the Applicant suggested further inquiry be made about evidence given another way, as distinct from inside the Court. His Honour was not persuaded by that and determined to have a solicitor speak to the witness. There was the luncheon break.
22          Solicitor, Hannah Philips, appeared on behalf of the witness after the luncheon break, and advised the court that the witness remained steadfast that he would not come into court. She advised the Court that she had served him with a Final Notice for the State, that she had given him legal advice, what that advice was and then advised the Court of his position.
23          Until that point in time, it was not known that any Final Notice had been served on the witness.
24          Though not present, that witness was then held in contempt.
25          It appeared that the Court accepted that, by extension, this witness was unavailable. However, Counsel for the State made a formal application for the witness to be declared unavailable.
26          The Court ruled that the witness was taken to be unavailable.
27 The State then sought to tender the Wilson statement pursuant to s65 of the Evidence Act 2001 (the Act). They sought to tender the edited record of interview.
28          The Applicant objected to that tender on two grounds

(a) The tender was not covered by s65 of the Act; and
(b) S137 of the Act.
29          Samuel Wilmot was called. He gave evidence that:
5   No 2919/2022

(a) Admitted he told police that the Applicant had assaulted the Complainant but denied that it occurred.
(b) What he told police was to save his "own arse" [P224]
30          Under cross-examination by defence, he reiterated that the Applicant had nothing to do with either of the crimes.
31          Jake Herlihy was called.
32          In the presence of the jury, Jake Herlihy told the court that he did not want to give evidence.
33          He was warned of the penalties by the learned sentencing judge, which included a potential to resentence, withdrawing the discount imposed for offering to give evidence. Jake Herlihy was unmoved.
34          That witness had been served with a Final Notice.
35          Mr Herlihy was held in custody over night to consider his position.
36          Similarly, as was the case with Mr Wilson, the Court arranged for the provision of legal advice to Mr Herlihy.
37          His lawyer advised the court upon resumption of proceedings that Mr Herlihy was still refusing to give evidence.
38          Similarly, he was found in contempt of court and held in custody, pending sentencing.
39          The State submitted that:

(a) His failure to attend/appear in court made him unavailable pursuant to s 3B(1)(f) & (g) of the Act.
(b) He was served with a final notice and brought to court under force of a body warrant to give evidence, and as such they had done all to secure his attendance and force him to give evidence.
40 The State then submitted that the statement of Mr Herlihy was admissible pursuant to s65 of the Act.
41          Similar submissions made in regard to Mr Wilson's representations were relied upon by the State.
42          Similarly with objections made by defence.
43          The learned trial judge ruled that much of the statement of Jake Herlihy was admissible, though not all of it. [His honour excise self-serving and exculpatory representations made by Mr Herlihy]
44          The Applicant neither gave nor adduce evidence." (Appeal Book references omitted.)

The impugned evidence

12 The impugned evidence of Mr Wilson is set out in the respondent's written submissions as
follows:
"Evidence the subject of the appeal
6 No 2919/2022

13 Mr Wilson participated in a video record of interview with police on the 14th of January 2018. Parts of his video record of interview were admitted into evidence. Specifically, the following representations were admitted into evidence:

(1)

On the 9th of January he arrived at Sam Wilmot's house on a motorbike with 'an associate'. Sam lives at a unit in Allwinton Court, Waverley.
(2) His associate, who he did not wish to name, was an 'old mate' [he
later agreed this associate was Corey Gesler, the applicant].

(3)

The day or so before, they had planned to go and see Sam. He was going to give them a couple of points of methylamphetamine and $100 so Mr Wilson could buy a new phone.
(4) It was dark when they pulled up.
(5) They entered the address through the back door.

(6)

When they arrived, Sam was there. There was also a young female and a young male there. Mr Wilson didn't know the young male and young female, he only got introduced to them on the night.
(7) After he his associate arrived they were using illicit substances,
smoking 'pipes' and taking 'eckies'.

(8)

There was talk about 'rolling' a person named Alex. They were saying "this cunt's got fuckin' this, got that". It was either the applicant or Sam talking about 'rolling' him.

(9)

Sam knew that Alex was going to have drugs and possibly cash on him as he was the one doing the deal and it seemed he was in discussions with the applicant about rolling him.
(10) They were sort of giggling about it while they were sitting at the table
having a pipe.
(11) He didn't think anyone had certain roles, it wasn't all planned out.
(12) Sam arranged for Alex to come to the unit that night.

(13)

He saw Alex walk through the door and he was carrying a shopping bag. He was in the house somewhere when Alex arrived, but he can't remember where.
(14) Alex also had some sort of police bat on him. It was a flick out one
that expands.
(15) He didn't personally see Alex with cash but there was cash sitting on
the table at the end of it.
(16) Alex pulled stuff out of the grocery bag he had. He pulled some drugs
out of it and the baton out of it.

(17)

Not long after Alex got there, he went and sat down at the kitchen table and Alex was at the other end of the kitchen table. He was doing a deal with Sam. I could hear them discussing how much was left and how much he had sold. Sam said that he had smoked a 'fuck load' himself. Alex said, "you'll be right, I've got enough to cover you".
(18) He then went to do some more weights.
7 No 2919/2022

(19) Alex pulled out a bag of shard, about an 8-ball. It was probably worth
about $1200.
(20) He wasn't really in the room 'when shit started', because he was on
the weight bench.
(21) The next minute, 'cunts were punching on' and 'she's on' and it 'just
got fucking hectic'.

(22)

When he first came in after hearing a commotion he saw three people wrestling: the owner of the house (Sammual Wilmot), the fella he rocked up with (the applicant) and Alex.
(23) Punches were being thrown and there was wrestling going on.

(24)

He grabbed his gloves and put them on. He agreed he did this because he knew the guy was going to get rolled for drugs and money and he was preparing to be involved in that.

(25)

There was a bit of a mess. There was blood coming all out of [the complainant's] mouth and it was piling up on the carpet, so he grabbed Alex by the legs and dragged him back onto the lino. He was panicking, there was shit everywhere and he didn't know what to do.

(26)

He hit Alex, gave him a 'one two' because he jumped up and was raging. Alex was on his arse in the kitchen, and when he jumped up he sort of came at him so he gave him a 'one two' and then virtually walked back out again, he was panicking.

(27)

He wasn't really in control of himself at the time. He was trying to be happy, trying to keep a smile on his face, because he was off his 'fucking dick' on 'eckies'. He just didn't know what to do.

(28)

[The complainant] had already copped a couple and he didn't look too happy. He went 'bang bang' and [the complainant] dropped to his knees and then he turned around and walked back out.
(29) His punches hit the complainant in the face.

(30)

Because the complainant was trying to get back up, he tried to grab his arms. He was trying to settle the complainant down, but 'it wasn't happening'.
(31) The applicant was trying to hold him in a bear hug at the same time
and Sam was panicking and jumping around the house.
(32) He saw the applicant hit Alex a couple of times in the kitchen.
(33) Alex was bleeding from the mouth. There was a lot of blood. At one
stage he threw a tea towel in there.
(34) When he threw the tea towel at the complainant, he said 'fuckin' clean
him up' to the applicant and Sam.
(35) After everything kicked off it was probably he and the applicant that
were the aggressors.

(36)

The electrical tape went on Alex near the end of it. It was meant to cover his mouth to stop the bleeding. The blood wasn't stopping, it was just dripping everywhere. Alex was laying down on his stomach in the kitchen at this point.

8 No 2919/2022

(37) He tried to put a bit of tape on his mouth, but he didn't put it around
his neck.
(38) At this stage Alex had injuries to his face and was bleeding from the
mouth, it wasn't a pretty sight.
(39) He is not sure how it happened but somehow he ended up with the
keys to the complainant's ute that was parked in the back carpark.
(40) He drove Alex's ute around the front of the unit.
(41) Alex ended up in the back of the ute. He doesn't know who put him in there. He drove from Sam's unit, down around the corner and Alex just jumped out. He panicked and stopped and looked. Alex was on the grass, he must have landed there. Alex was moving, he sat up.
(42) When Alex jumped out he was going 'real slow', he felt something shake which is when he looked back and saw that the complainant was on the grass next to the footpath.
(43) The complainant was crawling up the grass hill and then he sat back
up.
(44) He quickly drove the ute to the Waverley dam. He didn't know what to do so he kept it going into the dam and then jumped out while it was still driving.
(45) Before he jumped out he chucked some things in the bin from the car.
(46) He was wearing red gardening gloves while driving the ute.
(47) Once the car was in the lake, he jumped a couple of fences and ran
back to the unit.
(48) When he got back to the unit he ended up grabbing some cash, he thinks it was $175 and probably a couple of points of ice off the table but he ended up putting the cash back as they were sorting it out.
(49) When he got back the young female and young male were cleaning up the blood. There was blood in the kitchen, dining room and at the back door.
(50) He and his associate (the applicant) then left on the motorbike they
had arrived on.
(51) The applicant gave him a couple of points of ice and $170 later."
(Appeal Book references omitted.)

13 The impugned evidence of Mr Herlihy is set out in the respondent's written submissions as
follows:

"14

Mr Herlihy participated in a video record of interview with police on the 12th of January 2018. Parts of his video record of interview were admitted into evidence. In summary, the following representations were admitted into evidence:

(1) In January 2018, he lived at unit 2, 42 Morris Street, Prospect.
(2) As at January 2018, he had known Sam Wilmot for a little bit.
(3) He knew Maddie (Madelon) Pace, he dated her when he was 15 years
old.
9 No 2919/2022

(4) At around 10pm on Tuesday the 9th of January 2018, he went to Sam
Wilmot's house at 33/1 Allwinton Court in Waverley.
(5) Maddie Pace and two other people were there when he got there.

(6)

Initially he denied knowing the other two people but later said that the other people were Corey Gesler (the applicant) and Clinton Wilson.

(7)

He had met the applicant once before at Sam's and he met Clinton Wilson for the first time that night. He found out Mr Wilson's name when he sent him a Facebook friend request the next morning.
(8) He was smoking 'bongs' and they all smoked some 'ice'.
(9) Everyone was talking about how someone was going to turn up with
drugs. This person was Alex Friend.

(10)

He heard Sam on the phone to Alex saying '[w]hat are you doing, you still coming up,' '[d]o you want that drugs,' rah, rah, rah, '[y]ou still selling me some'.
(11) He had known Alex for over a year at that point. He met him through
his dad, who used to sell drugs. Alex was buying and selling drugs.
(12) When he got back up 'they' were talking about 'rolling Alex'.
(13) 'Rolling him' meant they were going to take his money and 'shit'.
(14) Apparently Alex was going to bring a couple of thousand dollars with
him.
(15) It was meant to be a 'quick, bang bang, like put to sleep kind of
thing'.
(16) They were basically all having the conversation (including himself).
(17) Alex turned up at about midnight.
(18) Alex drove his yellow Datsun or Mazda ute and parked it in the
carpark.
(19) Alex knocked on the back door and one of the guys he didn't get
introduced to (the applicant or Mr Wilson) let him in.
(20) When he came in, he was standing in the doorway between the
lounge room and Sam's bedroom.

(21)

Sam was sitting on a chair in the lounge room. One of the other guys (the applicant or Mr Wilson) was in the kitchen and the other was sitting on a chair in the lounge room. Maddie was in Sam's bedroom.
(22) Alex had two Woolworths bags with him.

(23)

He pulled out a baton and one of the guys asked to have a look at it. Alex also pulled out a bag of ice, about a half ball, and said 'we're smoking this'. He also said he'd brought his money.

(24)

At that time, he was still standing in the doorway between the lounge room and Sam's bedroom. Maddie was behind him. Alex was next to the fridge. Sam was sitting down next to the scales. The other two: one was behind Alex and the other one was in front of Alex.
10 No 2919/2022

(25) One of the big guys (the applicant or Mr Wilson) hit Alex first.
(26) Maddie hid in the bathroom. Sam started searching Alex's pockets.
He found a couple of $50 notes in his pockets.
(27) The assault went on for about ten minutes or so.
(28) He kicked Alex as he was about to be pulled out the front door. He
was breathing.
(29) He kicked him to the face.
(30) He kicked him reasonably hard.
(31) He did it because earlier on that day he had come to his house and
was trying to stand over him, trying to be his father and he's not.
(32) Before he kicked him there was blood everywhere, all over the unit.
It was on the carpet, in the kitchen, all over Alex.
(33) After he kicked him, he, Mr Wilmot and the applicant dragged Alex
out the front door and onto the lawn.

(34)

One of the guys brought Alex's ute around to the front of the unit and parked it on the lawn. He had used Alex's keys which were on the floor.
(35) The applicant and Sam lifted Alex into the tray of the ute. They put
him over the side of the tray.
(36) One of the other guys (Mr Wilson) drove the ute away.
(37) The other guy (the applicant) took off on a motorbike.
(38) They didn't come back.
(39) Maddie had stayed in the unit.
(40) She spent most of the time in the bathroom.
(41) He and Maddie cleaned up the blood. Sam helped a little bit.

(42)

They used scourers and sponges. They poured hot water from the kettle all over the carpet at the front steps. They used bleach or dishwashing detergent or dog flea shampoo or something as well. There was a lot of blood. They scrubbed it off. It took a while.
(43) The other guys (the applicant and Mr Wilson) had taken Alex's
personal property with them.
(44) He had given Clinton Alex's blue Nokia mobile phone.
(45) There were clothes, drinks and money in the bags that Alex had
brought with him. There was about $2000 in there.

(46)

After we cleaned up, he, Sam, Maddie left and went to his mother's house. They caught a taxi. They took Sam's dog with them and a grocery bag.

(47)

The bag had things in it that we used to clean up the house, like a towel and sponges. There was also a wooden chair leg in there. We were going to get rid of the bag.
11 No 2919/2022

(48) They went straight to his mother's house at 25A Wilmot Street, South
Launceston. They got there about 2:00am.
(49) He had a shower because he was sweaty.
(50) He or Sam put the grocery bag in the bin out the front. Maddie also
had a shower and got changed.
(51) When he got home he put his black Nikes in a bag and threw them in
his bin." (Appeal Book references omitted.)

The evidence of Mr Wilson

14 The applicant asserts that the learned trial judge erred in finding that Mr Wilson was unavailable as a witness within the meaning of s 3B of the Evidence Act, and further, in admitting the evidence of an edited police interview conducted with him on 14 January 2018, on the basis of s 65(2)(b) and s 65(2)(d) of that Act. The applicant further asserts that the learned trial judge erred in failing to exclude the edited police interview of Mr Wilson on the basis of s 137 of the Act.
15 Section 3B of Evidence Act provides as follows:

"3B 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–

(a) the person is dead; or
(b) the person is, for any reason other than the application of section 16, not competent to give the evidence; or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
(d) it would be unlawful for the person to give the evidence; or
(e) a provision of this Act prohibits the evidence being given; or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or
(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."

16 Relevantly, s 65 of the Evidence Act provides as follows:

"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 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
12 No 2919/2022

(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."

17 Section 137 of the Evidence Act provides as follows:

"137 Exclusion of prejudicial evidence in criminal proceedings
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."

18          No submissions against the State's application to have Mr Wilson declared unavailable were made by the applicant's counsel at trial.
19 The learned trial judge accepted that Mr Wilson was "not available" within the meaning of s 3B of the Evidence Act on the basis that all reasonable steps had been taken by the State to secure his attendance and to compel him to give evidence. His Honour was satisfied that Mr Wilson was aware of the contents of the final notice (despite service not being formally attended to), that he had been brought to Court pursuant to a body warrant, that he was present in the Court building, that all reasonable steps had been taken by the State to compel him to give evidence and that there were no further means available to compel him to give evidence.
20           The applicant submits on the first of his contentions in relation to Mr Wilson that the State did little to secure his attendance or compel him to attend other than to organise a body warrant, (as he was in custody), and ultimately to serve him with a final notice to appear and give evidence.
21           The applicant submits that Mr Wilson should have been forcibly brought into the courtroom and an oath or affirmation administered and to then see what transpired. A submission was also made that a suggestion of defence counsel to have Mr Wilson appear by video link, could have been taken up by the learned trial judge.
22 The respondent submits that the definition of "not available" in s 3B of the Evidence Act clearly encompasses a situation where a witness refuses to give evidence. The respondent relies on R v Suteski [No 4] [2002] NSWSC 218, 128 A Crim R 275 at [83] referencing the Australian Law Reform Commission Reports (No 36 at [218]) where it was noted that the definition of "unavailability" was intended to cover such an occurence.
23 The precondition of s 3B(1)(f) and (g) is that "all reasonable steps" are taken by the party seeking to prove the person is not available. What constitutes "reasonable steps" is dependent on the circumstances of the particular case. The more important the evidence of the witness, the higher the burden of satisfying that "reasonable steps" have been taken (ZL v The Queen [2010] VSCA 345, 208 A Crim R 325 at [32] per Nettle JA).
24   In Tasmania v Dolega [2016] TASSC 65, 26 Tas R 312, Brett J said at [14]:
13   No 2919/2022

"The focus of the enquiry under s 3B(1)(f) is not on whether the steps which could have been taken would or would not have been actually effective in securing attendance. The potential outcome of a step is relevant to an assessment as to whether it is a reasonable step to take, but the section clearly requires that all reasonable steps be taken to find and secure the attendance of a witness before the witness will be considered unavailable, with the consequence that a previous representation will be admitted in proof of the facts asserted in that representation."

25           The respondent submits that all reasonable steps were taken by the State to compel Mr Wilson to give evidence, and that his subsequent refusal to do so made him "not available". Those steps included conducting a witness briefing, issuing a final notice and causing a body warrant to be issued by the Court and serving him with a final notice to give evidence.
26           I would agree. The steps to be taken are all of those that are reasonable, not all of those that a conceivably possible. Assuming that it was possible for the learned trial judge to direct the Tasmanian Prison Service to force Mr Wilson into the courtroom, it would not, in my view, have been a reasonable step to take given the circumstances. Mr Wilson had the benefit of legal advice regarding the consequences of failing to give evidence and was unmoved. It is reasonable to infer that the situation would not have altered if he had been brought into court. Equally, the provision of a video link by means of which he might have given evidence is not a reasonable step to have taken. Mr Wilson's steadfast refusal to give evidence was not related to the place from which his evidence might be given but rather, was to giving any evidence at all.
27 Next, the applicant contends that the evidence of Mr Wilson should not have been admitted pursuant to either s 65(2)(b) or s 65(2)(d).
28 As submitted by counsel for the respondent, s 65(2) requires firstly, the identification of the particular representation to be adduced in evidence as proof of a particular fact relevant to an issue in the case, and secondly, a consideration of the circumstances in which the representation was made, in order to determine whether the conditions for admissibility are met. This process must be observed for each relevant fact sought to be proved (Sio v The Queen [2016] HCA 32, 259 CLR 47). Whilst the focus of s 65(2)(b) is on whether the representation is a fabrication, and the focus of s 65(2)(d) is on whether the representation is reliable, both subsections operate in a similar way (Dolega (above) at [19]).
29 Section 65(2)(b) requires a temporal connection between the event and the making of the representation. However, section 65(2)(b) does not reproduce the common law doctrine of res gestae (Conway v The Queen [2000] FCA 461, 98 FCR 204 at [123]). Instead, it allows for statements to be admitted if made when or shortly after the asserted facts occurred, provided they are made in circumstances that make it unlikely that the representation is a fabrication.
30          In her written submissions, counsel for the respondent, correctly in my view, sets out the relevant principles as follows:

"36

The phrase 'shortly after' imports a degree of flexibility (R v Mankotia [1998] NSWSC 295; R v Polkinghorne (1999) 108 A Crim R 189 at [39]–[40] per Levine J). What 'shortly after' means will depend upon the particular circumstances of the case.

37

It is submitted that in determining what constitutes 'shortly after', the temporal connection is only one consideration. Indeed, the broader scheme of s65 contemplates representations being admissible without a direct temporal connection at all; section 65(2)(c) includes no temporal requirement provided the representation was made in circumstances that make it highly probable that the representation is reliable.
14   No 2919/2022

38          There is authority to suggest that the focus of the section is how long the memory of the events is likely to remain clear in the mind (Mankotia (supra); Polkinghorne (supra); R v Toki (No 3) (2000) 116 A Crim R 536; Conway (supra); Harris v The Queen (2005) 158 A Crim R 454). In Harris at [38]- [39] it was stated that in some circumstances, five days after could be regarded as 'shortly after'.
39          Other cases suggest the focus of the section is to avoid the admission of evidence that has been concocted, and the shorter the temporal connection, the less chance the representor has to reflect on matters and fabricate an account (Williams v R (2000) 119 A Crim R 490 at [47]). In Williams, it was held that the preferable approach is that the statements must be made 'under the proximate pressure of the occurrence of the asserted fact' (at 502) in order to avoid the risk of concoction or fabrication.
40          However, this approach was rejected by Miles AJ in R v Kuzmanovic [2005] NSWSC 771 at [16], who stated the correct approach was to 'look at the subject matter of the event and how long the event is likely to have remained clear in the mind of the representor.'
41          The respondent contends that the approach taken in Harris is correct, and that the focus of the section is how long the event is likely to remain clear in the mind of the representor and the nature of the event. There is nothing within the words of the section that suggest that a person must be under the stress of the event when a representation in made in order for it to be admissible (cf Ratten v The Queen [1972] AC 378 at 391). This was a deliberate decision of the legislature. The length of time between the event in question and the making of the representation will be a relevant factor, however whether a representation was made 'shortly after' the occurrence of the asserted facts will also depend on the facts of the case and the significance of the events in question (Mankotia, supra). It is submitted that this approach is not contrary to the 'proximate pressure' test outlined in Williams (supra), as depending on the nature of the event in question, a person may still be under the 'pressure' of the event some days afterwards.
42 The respondent submits in the circumstances of this case, the statements made by Mr Wilson to police on the 14th of January 2018 met the requirement in s 65(2)(b) of being 'shortly after' the occurrence of the asserted fact. These were significant events that were likely to have remained clear in Mr Wilson's mind for a number of days afterwards. The possibility that Mr Wilson's representations were fabrications is significantly reduced by the circumstances of their making; namely that they were representations made to police and against Mr Wilson's interests."

31 I have no hesitation in accepting that in all of the circumstances of this case Mr Wilson's representations made to police against his own interests in an interview conducted after the usual caution was given, were statements made shortly after the asserted fact occurred and in circumstances that made it unlikely that the representations were fabrications.
32 As to the principles relating to s 65(2)(d) of the Evidence Act, I again gratefully repeat the analysis set out by counsel for the respondent in her written submissions as follows:

"43

Whether a representation was made 'against interest' is an objective test, and does not turn on the motives of the representor (R v Suteski (2002) 56 NSWLR 182 at [94]).

44

Any statement that tends to implicate a person in an offence is a statement against interest (see section 65(7) of the Evidence Act 2001 and Suteski (supra)). Whether a representation is 'against interest' should be determined in context, rather than considering the representation in isolation (Sio (HC) (supra) at [59]; Suteski (supra) at [93]; R v El Masri [2010] NSWSC 1277 at [29]). Representations do not cease to be against the interests of the maker
15 No 2919/2022

simply because they are also against the interests of the accused (Vitale v R [2020] VSCA 237 at [83]). The mere fact that a representation is made by a co-offender and the fact that such evidence may be unreliable does not preclude a conclusion that the circumstances in which it was made make it likely that it is reliable (Asling v The Queen [2018] VSCA 132 at [81]).
45          The provision only requires it to be likely that the representation is reliable (El Masri (supra) at [22]), however, the trial judge must be "positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character" (Sio (HC) (supra) at [64]).
46          The focus is on the objective circumstances in which the representation was made. It is not an enquiry as to whether the representor was mistaken, unreliable, untruthful or not. Other evidence outside the time and the place of the making of the representation can shed light on the making of the representation (Sio (HC) (supra) at [69]–[70]), however the focus remains on the reliability of the representation, not the reliability of the asserted fact (R v Ambrosoli (2002) 55 NSWLR 603 at 615-616; Williams (supra) at 503-505).
47          The question for consideration is, what circumstances exist that "shift the balance in favour of a positive finding of likely reliability" with respect to the asserted fact (Sio (HC) (supra) at [73]).
48 In 2005 the Australian Law Reform Commission recommended that s 65(2)(d) of the Uniform Evidence Acts be amended to require not only that the relevant representation must be against the interests of the person who made it at the time it was made, but also that it was made in circumstances that make it likely that the representation is reliable. This amendment was designed specifically with representations made by accomplices and co- accused persons in mind. It is submitted that provided the two limbs of s 65(2)(d) are met, there is no impediment to admitting the hearsay statements of co-accused persons.
49 In determining that the impugned evidence was admissible pursuant to s 65(2)(b) and (d), the learned trial judge relied on Sio (HC) (supra) at [71]. His Honour held that almost all of the representations made by Clinton Wilson sought to be adduced by the State were made in the same circumstances, but nevertheless each had to be considered.

…

51

There were also a number of representations that were admitted into evidence in order to provide context to the above categories of representations. It is submitted this is a permissible approach: Suteski (supra) at [93]; DPP v Asling (No 2) [2017] VSC 38 at [22].

52

His Honour held that all the representations sought to be adduced went to the following facts in issue on the trial:

(1) Whether the applicant was part of a plan to rob the complainant;
(2) Whether the applicant was immediately present when force was
applied to the complainant;
(3) Whether the applicant applied at least some of the force to the
complainant.

53

His Honour was satisfied that all the representations made within the police interview were made 'soon after the asserted facts occurred' and that all the representations sought to be adduced by the State were 'directly against [Mr Wilson's] interests to a significant extent'." (Appeal Book references omitted)
16 No 2919/2022

33 In my view the respondent is correct in contending that the learned trial judge did not err in admitting the representations of Mr Wilson as contained in the edited police interview pursuant to s 65(2)(d) for the following reasons set out in her written submissions:

"(1)

Mr Wilson admitted to serious criminal conduct on his own part, and did not appear to attempt to shift blame onto others, or minimise his own part in the crimes. In fact, he admitted that he was one of the principal aggressors. In the context of admitting such matters to police officers in an audio-visual record of interview under caution and prior to being charged, there can be little doubt that the representations were against Mr Wilson's interests at the time he made them (Sio (NSWCCA) (Supra) at [30]). The fact that representations are against a person's interest will support a finding that the representation 'was made in circumstances that make it likely that the representation is reliable' but will not be determinative of the issue.

(2)

The representations were made in the context of a formal police interview, under caution (Kefalianos (supra) at [10]). He could reasonably expect it would be used in evidence against him. In these circumstances it is submitted that Mr Wilson must have been aware that there would be consequences to his statements, including significant consequences for himself in admitting to his own involvement in the crimes, and the representations would not have been made lightly in such circumstances.

(3)

This is particularly so given the serious nature of the crimes alleged by police. As noted by the learned trial judge, he would have been aware of the serious nature of the complainant's injuries, given that on his own account he was the last of the co-offenders to see the complainant (Vol 2, T227).

(4)

He was initially reluctant to name the applicant as being the person he arrived at the unit with, despite describing the actions of this person in detail. Later in his interview with police he spoke of a 'code' he abided by, in which you 'own up to your own mistakes but don't drag anyone else down with you' (Vol 2, T145). It can be concluded from this context that Mr Wilson did not wish to shift blame onto the applicant himself and did not have an interest in seeing the applicant charged.

(5)

Eventually Mr Wilson agreed that the person he was speaking about was the applicant, but only once he had concluded that the police were aware of the applicant's identity (Vol 3, 44). Where representations are made in circumstances in which the representor is aware of the existence of other objective evidence, this has been considered to be a circumstance of reliability (Vitale (supra) at [85], R v El Masri (supra) at [27]).

(6)

Mr Wilson was aware that Mr Herlihy, Mr Wilmot and Ms Pace had been interviewed but it is unlikely that he would have been aware of their contents of their representations;

(7)

Further, at the time of making the representations it is unlikely that Mr Wilson would have had a sophisticated understanding of the criminal law pertaining to criminal responsibility of parties to crimes, or the concept of extended unlawful common purpose. Therefore, at the very least, his representations placing himself and the applicant at the scene are likely to be reliable.

(8)

The applicant submits that the representations were unreliable in part due to Mr Wilson being tired due to lack of sleep and drug use. However the learned trial judge found that the answers given by Mr Wilson in the interview were lucid and responsive and that there was nothing in the manner of the interview or the answers given that suggested Mr Wilson's assertions were unreliable due to lack of sleep (Vol 2, T276). There was nothing in Mr Wilson's manner to suggest there was any physical or emotional reason that
17 No 2919/2022

his statements would not be (Kefalianos at [10]); Thomas v DPP [2021]
VSCA 269 at [51]);

(9) Mr Wilson gave a detailed account of the relevant events (Kefalianos at [10])
and his account was not 'inherently unlikely' (Harris at [44]-[45]);
(10) It was not a case in which Mr Wilson had been promised immunity from
prosecution (see Australian Law Reform Commission Report 102, p236);
(11) There was no evidence of animosity between Mr Wilson and the applicant."
(Emphasis added at (72)-(73) above)

34 Finally, in relation to Mr Wilson, the applicant submits that the learned trial judge ought to have excluded the evidence of the police interview pursuant to s 137 of the Evidence Act.
35 It is not submitted that his Honour misdirected himself but the applicant submits that the learned trial judge misunderstood "the full extent of the prejudice faced by [the applicant], in admitting the statements of Mr Wilson". It is submitted that his Honour focused primarily, "if not completely", on the inability of the applicant to cross-examine the witness whereas the applicant was prevented "by other evidentiary rulings from effectively challenging the evidence" and that was more than simply not being able to cross-examine. The submission is as follows:

"80 Whilst His Honour did direct the jury not to speculate why Clinton Wilson was not called [P656], but how could they not? The prosecutor had already told the jury that those witnesses will be called, because they are obliged to; and they were not willing.
81 The learned trial judge told them Mr Wilson was up next. There was a natural expectation, followed by bewilderment whilst suddenly, they are told not to speculate why that expectation was not delivered upon.
82 Coupled with the other co-offender, Jake Herlihy, who said in the presence of the jury that he did not want to give evidence, is a bridge too far to expect the jury to not possibly consider that.
83 It was this cumulation of prejudice on the admission of the statement that raised the bar above the probative value of the statement that could not be tested."

36 The respondent answers the applicant's arguments on this limb of his contentions in relation to Mr Wilson by pointing to the fact that the evidence of Mr Wilson carried extremely high probative value given that, taken at its highest, it placed the applicant at the scene of the crimes, involved in a discussion prior to the complainant's arrival with respect to a plan to rob him, directly involved in the violence inflicted upon the complainant, and directly involved in the taking of the complainant's possessions. It is submitted that the evidence could have no prejudicial effect other than proving the charges: Papakosmas v The Queen [1999] HCA 37, 196 CLR 297 at 325 per McHugh J.
37 It is well established that the inability of an accused to cross-examine a witness will not necessarily result in a requirement that the evidence be excluded. I accept the submission made by counsel for the respondent that the rigorous requirements of s 65(2) are in part designed to take into account the fact that cross-examination is not possible, and something more will usually be required to establish prejudice, particularly where probative value is high: R v Omar [2022] NSWSC 371 at [72], and that provided the conditions for admissibility are met, an accused will not be deprived of a fair trial: R v Clark NSWCCA 494 [2001], 123 A Crim R 506 at 583. In that case it was noted at [164]:
"… if the impossibility of challenging the veracity of hearsay statements by non- witnesses were generally to justify, or were significant in justifying … a finding of
18 No 2919/2022

'unfair' prejudice under s137, the result would be to write the hearsay exemptions out
of the Act to a large extent".

38 The applicant asserts that the prejudice faced by the applicant was not only in the inability to cross-examine Mr Wilson, but also in the fact that the jury would impermissibly speculate as to why Mr Wilson was not called as a witness on the trial, after they had been told that he would be the next witness called by the State. However, the respondent submits that any danger of unfair prejudice arising was, cured by the learned trial judge's direction given in the following terms:
"Do not guess or speculate about evidence in arriving at your verdicts. Now, what I mean by that is that you can draw conclusions from other facts but you're not to speculate. For example, you shouldn't concern yourself about whether you think some other witness might have been called or there might have been some other evidence in this case that you haven't heard about. You must not speculate about that. There are two obvious examples here, Clinton Wilson and Jake Herlihy. Neither attended court to give evidence. You shouldn't second guess why they were not here or what either of them might have said if they had given evidence in court.
You do not know that would have been said and you must not speculate about it. The only evidence you are concerned with is what you've heard and seen here in court so you must decide this case on the evidence that you do have not on the evidence that you don't have. Very importantly, you must not draw any adverse inference against the accused from the fact that neither Clinton Wilson or Jake Herlihy appeared in court to give evidence. It is not a factor which is relevant to your determination. There may be many reasons why that is so quite unrelated to the accused so you must put that out of your minds."

39 I agree.
40 As to the applicant's contention that the cumulative effect of the evidentiary rulings given on the trial resulted in unfair prejudice, I accept the submission of the respondent that unfair prejudice does not arise simply from the proper application of the Evidence Act 2001 as long as appropriate directions and warnings are given to the jury. Appropriate directions can mitigate the risk of unfair prejudice and juries must be trusted to understand and follow directions, even where they are complex (Gilbert v The Queen [2000] HCA 15, 201 CLR 414 at [31]). In my view the very careful directions given by the learned trial judge, generally, but with particular reference to Mr Wilson and Mr Herlihy were appropriate and sufficient.

The evidence of Mr Herlihy

41 Allowing for the fact that Mr Herlihy actually came into the courtroom to announce his refusal to give evidence, the applicant's submissions as to whether Mr Herlihy was unavailable as a witness do not differ materially from those made in relation to Mr Wilson and I reject them for the same reasons as I did those pertaining to Mr Wilson.
42 The applicant also contends that the learned trial judge erred in admitting the evidence of an edited police interview conducted with Mr Herlihy on the basis of s 65(2)(b) and s 65(2)(d) of the Evidence Act.
43 As to s 65(2)(b) and s 65(2)(d), his Honour followed the same process as he had done with Mr Wilson's evidence, conducted the same analysis of the representations and excluded representations that did not meet the statutory criteria. For example, his Honour excluded representations made by Mr Herlihy in which he denied involvement in the planning and execution of the robbery or where he sought to minimise his involvement.
19 No 2919/2022

44 I accept the submission that the learned trial judge was correct in finding that the representations made by Mr Herlihy were not fabricated and/or were reliable for the following reasons:

"(1) Whilst there was evidence that Mr Herlihy had spent time with Madelon Pace and Sammual Wilmot after the crimes were committed, following their arrest he was unlikely to have had an opportunity to speak with them prior to commencing his own interview at 11:20pm on 12 January 2018. He was told during the interview that Ms Pace and Mr Wilmot had been interviewed, however he would not have been aware of what they told police. This minimised the risk of fabrication.
(2) There was nothing about Mr Herlihy's manner or appearance during the interview that suggested his answers were unreliable, noting the learned trial judge viewed the entire interview. Mr Herlihy did not appear to be under the influence of alcohol and drugs, appeared alert and responsive. His answers were fluid and prompt.
(3) The representations admitted into evidence were against Mr Herlihy's interest, whilst simultaneously having probative value on the case against the applicant. It is submitted that this impacts positively upon the likelihood of their reliability.
(4) They were made in the context of a formal police interview, under caution. He could reasonably expect it would be used in evidence against him. It would have been clear to Mr Herlihy that his representations would have serious consequences (Kefalianos (supra) at [10]).
(5) His account was detailed.
(6) Mr Herlihy was clearly reluctant to name the applicant (and Clinton Wilson) as a person involved in the crimes. It was only at the end of the interview that he agreed that one of the 'guys' he had been speaking about was Corey Gesler. This suggests that that he does not wish to shift the blame onto another individual and had no interest in seeing the applicant charged.
(7) There was no evidence of animosity between Mr Herlihy and the applicant;
(8) It was not a case in which Mr Herlihy had been promised immunity from
prosecution (see Australian Law Reform Commission report 102, p236). "

45           As regards the admission of the impugned evidence of Mr Herlihy, again, as with my conclusion in relation to the admission of Mr Wilson's evidence, I detect no error in his Honour's application of the relevant provisions or the principles governing them.
46           It is convenient here to note that in relation to both Mr Wilson and Mr Herlihy, the applicant submits that the learned trial judge erred in his approach to his task, and erroneously considered the reliability of the representations rather than the reliability of the circumstances in which the representations were made. This was simply not the case. A selective reading of his Honour's reasons might suggest that at a very superficial level, but the contrary can be seen from the following passage of his Honour's ruling where he said (and subsequently reiterated):
"[He] must be affirmatively satisfied that in respect to each representation of fact, that the pre-conditions for admission specified in either subsection 2(b) or (d) of subsection 65 are satisfied, namely, that either the representation (b) was made under – made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication or by subsection (d) that it was (1) against the interests of the person who made it at the time it was made and (2) made in circumstances that make it unlikely – make it likely that the representation is reliable." (Emphasis added.)
20   No 2919/2022

47 The applicant further asserts that the learned trial judge erred in failing to exclude the edited police interview of Mr Herlihy on the basis of s 137 of the Evidence Act 2001, and that the admission of this evidence resulted in a miscarriage of justice.

48 The applicant relies largely on the same submissions as those made on behalf of Mr Wilson but submits that what sets the argument apart from that in the case of Mr Wilson, is that the jury heard Mr Herlihy say that he did not want to give evidence.
49 The submission runs:

"94 This elevated the prejudice, as it is human nature to speculate. The jury were given a damning statement against the Applicant, by Mr Herlihy. Mr Herlihy declaring in front of the jury that he does not want to give evidence, having already been warned of said reluctance in the State's opening. Then told not to speculate why by the judge.
95 Those ingredients created a recipe of extreme prejudice that sits high above any probative value that evidence had, if it could have been test. The Applicant was denied that opportunity."

50 I reject that argument. At the time the learned trial judge said this to the jury.
"Yesterday afternoon ladies and gentlemen you saw Jake Herlihy called and briefly come into court. You will not hear evidence from Mr Herlihy. A couple of things I want to say about that. Firstly, that is not something which can be held against Mr Gesler so don't speculate about why that is, we have no evidence about it. Neither the prosecution nor the defence had the opportunity to question or investigate with Mr Herlihy why that was so it's an irrelevant consideration on the trial. You will not hear evidence from him."

51 His Honour repeated that direction to the jury during the summing up.
52 I do not accept that the danger of unfair prejudice was heightened by those clear directions which the jury must be assumed to have followed.

Conclusion

53 In my view there is no merit in either of the applicant's grounds of appeal. The learned trial judge did not err in his rulings and there has been no miscarriage of justice.
54 To the extent that leave to appeal is necessary I would grant leave but dismiss the appeal in its
entirety.

21 No 2919/2022
File No CCA 2919/2022

COREY MITCHELL GESLER v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
GEASON J
20 September 2023

55 I agree with Estcourt J.

22 No 2919/2022
File No CCA 2919/2022

COREY MITCHELL GESLER v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
PORTER AJ
20 September 2023

56 I agree with Estcourt J.

Citations

Gesler v State of Tasmania [2023] TASCCA 10

Most Recent Citation

Cases Citing This Decision

1

State of Tasmania v Allie and Maple [2025] TASSC 6

Cases Cited

21

Statutory Material Cited

1

R v Suteski (No 4) [2002] NSWSC 218

ZL v The Queen [2010] VSCA 345

Tasmania v Dolega [2016] TASSC 65

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Applicant:	Brooke Winter Solicitors
Respondent:	Director of Public Prosecutions

(13)	Mr Wilson took the complainant's car keys and drove the complainant's ute around to the front of the unit.
(14)	The complainant was dragged and carried out the front door of the unit by the applicant and others, and was placed in the tray of his ute.
(15)	Mr Wilson drove the ute away from the unit.
(16)	The complainant regained consciousness as the ute was being driven. He attempted to get out of the ute and was flung out onto the road.
(17)	The complainant was located by Dylan Enkelaar on the side of the road. He was severely injured, covered in blood and unable to speak. Black electrical tape was wrapped around his neck. Emergency services were called.
(18)	Mr Wilson continued on and drove the complainant's ute into Waverley Lake. He then returned to Mr Wilmot's unit.
(19)	The applicant and Mr Wilson left the unit on a motorcycle. They took most of the complainant's cash and drugs.
(20)	Mr Herlihy and Ms Pace attempted to clean the blood inside the unit.
(21)	Mr Herlihy, Mr Wilmot and Ms Pace caught a taxi to Mr Herlihy's mother's house. They took with them a plastic bag containing the wooden chair leg and items that had been used for cleaning. When they arrived at Mr Herlihy's mother's house, they disposed of the plastic bag in a rubbish bin.
(22)	The complainant was taken to the Launceston General Hospital by ambulance. After examinations and scans were conducted he was admitted to intensive care and placed in an induced coma. He had sustained serious, life-threatening injuries." (Transcript references omitted.)

(a)	There was a discussion between Herlihy and Wilson about getting money from the Complainant.
(b)	She told police that it was Jake Herlihy's idea.
(c)	She conceded that she told police she had witnessed to people assault the complainant but maintained that the Applicant had been in the bathroom with her.
(d)	She told police that one of the assailants, Jake Herlihy, had kicked the Complainant.
(e)	She denied writing in her phone "Corey just flogged this poor bloke. There's blood everywhere…"

(a)	Admitted he told police that the Applicant had assaulted the Complainant but denied that it occurred.
(b)	What he told police was to save his "own arse" [P224]

(19)	Alex pulled out a bag of shard, about an 8-ball. It was probably worth about $1200.
(20)	He wasn't really in the room 'when shit started', because he was on the weight bench.
(21)	The next minute, 'cunts were punching on' and 'she's on' and it 'just got fucking hectic'.
(22)	When he first came in after hearing a commotion he saw three people wrestling: the owner of the house (Sammual Wilmot), the fella he rocked up with (the applicant) and Alex.
(23)	Punches were being thrown and there was wrestling going on.
(24)	He grabbed his gloves and put them on. He agreed he did this because he knew the guy was going to get rolled for drugs and money and he was preparing to be involved in that.
(25)	There was a bit of a mess. There was blood coming all out of [the complainant's] mouth and it was piling up on the carpet, so he grabbed Alex by the legs and dragged him back onto the lino. He was panicking, there was shit everywhere and he didn't know what to do.
(26)	He hit Alex, gave him a 'one two' because he jumped up and was raging. Alex was on his arse in the kitchen, and when he jumped up he sort of came at him so he gave him a 'one two' and then virtually walked back out again, he was panicking.
(27)	He wasn't really in control of himself at the time. He was trying to be happy, trying to keep a smile on his face, because he was off his 'fucking dick' on 'eckies'. He just didn't know what to do.
(28)	[The complainant] had already copped a couple and he didn't look too happy. He went 'bang bang' and [the complainant] dropped to his knees and then he turned around and walked back out.
(29)	His punches hit the complainant in the face.
(30)	Because the complainant was trying to get back up, he tried to grab his arms. He was trying to settle the complainant down, but 'it wasn't happening'.
(31)	The applicant was trying to hold him in a bear hug at the same time and Sam was panicking and jumping around the house.
(32)	He saw the applicant hit Alex a couple of times in the kitchen.
(33)	Alex was bleeding from the mouth. There was a lot of blood. At one stage he threw a tea towel in there.
(34)	When he threw the tea towel at the complainant, he said 'fuckin' clean him up' to the applicant and Sam.
(35)	After everything kicked off it was probably he and the applicant that were the aggressors.
(36)	The electrical tape went on Alex near the end of it. It was meant to cover his mouth to stop the bleeding. The blood wasn't stopping, it was just dripping everywhere. Alex was laying down on his stomach in the kitchen at this point.

(37)	He tried to put a bit of tape on his mouth, but he didn't put it around his neck.
(38)	At this stage Alex had injuries to his face and was bleeding from the mouth, it wasn't a pretty sight.
(39)	He is not sure how it happened but somehow he ended up with the keys to the complainant's ute that was parked in the back carpark.
(40)	He drove Alex's ute around the front of the unit.
(41)	Alex ended up in the back of the ute. He doesn't know who put him in there. He drove from Sam's unit, down around the corner and Alex just jumped out. He panicked and stopped and looked. Alex was on the grass, he must have landed there. Alex was moving, he sat up.
(42)	When Alex jumped out he was going 'real slow', he felt something shake which is when he looked back and saw that the complainant was on the grass next to the footpath.
(43)	The complainant was crawling up the grass hill and then he sat back up.
(44)	He quickly drove the ute to the Waverley dam. He didn't know what to do so he kept it going into the dam and then jumped out while it was still driving.
(45)	Before he jumped out he chucked some things in the bin from the car.
(46)	He was wearing red gardening gloves while driving the ute.
(47)	Once the car was in the lake, he jumped a couple of fences and ran back to the unit.
(48)	When he got back to the unit he ended up grabbing some cash, he thinks it was $175 and probably a couple of points of ice off the table but he ended up putting the cash back as they were sorting it out.
(49)	When he got back the young female and young male were cleaning up the blood. There was blood in the kitchen, dining room and at the back door.
(50)	He and his associate (the applicant) then left on the motorbike they had arrived on.
(51)	The applicant gave him a couple of points of ice and $170 later." (Appeal Book references omitted.)

(4)	At around 10pm on Tuesday the 9th of January 2018, he went to Sam Wilmot's house at 33/1 Allwinton Court in Waverley.
(5)	Maddie Pace and two other people were there when he got there.
(6)	Initially he denied knowing the other two people but later said that the other people were Corey Gesler (the applicant) and Clinton Wilson.
(7)	He had met the applicant once before at Sam's and he met Clinton Wilson for the first time that night. He found out Mr Wilson's name when he sent him a Facebook friend request the next morning.
(8)	He was smoking 'bongs' and they all smoked some 'ice'.
(9)	Everyone was talking about how someone was going to turn up with drugs. This person was Alex Friend.
(10)	He heard Sam on the phone to Alex saying '[w]hat are you doing, you still coming up,' '[d]o you want that drugs,' rah, rah, rah, '[y]ou still selling me some'.
(11)	He had known Alex for over a year at that point. He met him through his dad, who used to sell drugs. Alex was buying and selling drugs.
(12)	When he got back up 'they' were talking about 'rolling Alex'.
(13)	'Rolling him' meant they were going to take his money and 'shit'.
(14)	Apparently Alex was going to bring a couple of thousand dollars with him.
(15)	It was meant to be a 'quick, bang bang, like put to sleep kind of thing'.
(16)	They were basically all having the conversation (including himself).
(17)	Alex turned up at about midnight.
(18)	Alex drove his yellow Datsun or Mazda ute and parked it in the carpark.
(19)	Alex knocked on the back door and one of the guys he didn't get introduced to (the applicant or Mr Wilson) let him in.
(20)	When he came in, he was standing in the doorway between the lounge room and Sam's bedroom.
(21)	Sam was sitting on a chair in the lounge room. One of the other guys (the applicant or Mr Wilson) was in the kitchen and the other was sitting on a chair in the lounge room. Maddie was in Sam's bedroom.
(22)	Alex had two Woolworths bags with him.
(23)	He pulled out a baton and one of the guys asked to have a look at it. Alex also pulled out a bag of ice, about a half ball, and said 'we're smoking this'. He also said he'd brought his money.
(24)	At that time, he was still standing in the doorway between the lounge room and Sam's bedroom. Maddie was behind him. Alex was next to the fridge. Sam was sitting down next to the scales. The other two: one was behind Alex and the other one was in front of Alex.

(25)	One of the big guys (the applicant or Mr Wilson) hit Alex first.
(26)	Maddie hid in the bathroom. Sam started searching Alex's pockets. He found a couple of $50 notes in his pockets.
(27)	The assault went on for about ten minutes or so.
(28)	He kicked Alex as he was about to be pulled out the front door. He was breathing.
(29)	He kicked him to the face.
(30)	He kicked him reasonably hard.
(31)	He did it because earlier on that day he had come to his house and was trying to stand over him, trying to be his father and he's not.
(32)	Before he kicked him there was blood everywhere, all over the unit. It was on the carpet, in the kitchen, all over Alex.
(33)	After he kicked him, he, Mr Wilmot and the applicant dragged Alex out the front door and onto the lawn.
(34)	One of the guys brought Alex's ute around to the front of the unit and parked it on the lawn. He had used Alex's keys which were on the floor.
(35)	The applicant and Sam lifted Alex into the tray of the ute. They put him over the side of the tray.
(36)	One of the other guys (Mr Wilson) drove the ute away.
(37)	The other guy (the applicant) took off on a motorbike.
(38)	They didn't come back.
(39)	Maddie had stayed in the unit.
(40)	She spent most of the time in the bathroom.
(41)	He and Maddie cleaned up the blood. Sam helped a little bit.
(42)	They used scourers and sponges. They poured hot water from the kettle all over the carpet at the front steps. They used bleach or dishwashing detergent or dog flea shampoo or something as well. There was a lot of blood. They scrubbed it off. It took a while.
(43)	The other guys (the applicant and Mr Wilson) had taken Alex's personal property with them.
(44)	He had given Clinton Alex's blue Nokia mobile phone.
(45)	There were clothes, drinks and money in the bags that Alex had brought with him. There was about $2000 in there.
(46)	After we cleaned up, he, Sam, Maddie left and went to his mother's house. They caught a taxi. They took Sam's dog with them and a grocery bag.
(47)	The bag had things in it that we used to clean up the house, like a towel and sponges. There was also a wooden chair leg in there. We were going to get rid of the bag.

(48)	They went straight to his mother's house at 25A Wilmot Street, South Launceston. They got there about 2:00am.
(49)	He had a shower because he was sweaty.
(50)	He or Sam put the grocery bag in the bin out the front. Maddie also had a shower and got changed.
(51)	When he got home he put his black Nikes in a bag and threw them in his bin." (Appeal Book references omitted.)

(a)	the person is dead; or
(b)	the person is, for any reason other than the application of section 16, not competent to give the evidence; or
(c)	the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
(d)	it would be unlawful for the person to give the evidence; or
(e)	a provision of this Act prohibits the evidence being given; or
(f)	all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or
(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."

"(1)	Mr Wilson admitted to serious criminal conduct on his own part, and did not appear to attempt to shift blame onto others, or minimise his own part in the crimes. In fact, he admitted that he was one of the principal aggressors. In the context of admitting such matters to police officers in an audio-visual record of interview under caution and prior to being charged, there can be little doubt that the representations were against Mr Wilson's interests at the time he made them (Sio (NSWCCA) (Supra) at [30]). The fact that representations are against a person's interest will support a finding that the representation 'was made in circumstances that make it likely that the representation is reliable' but will not be determinative of the issue.
(2)	The representations were made in the context of a formal police interview, under caution (Kefalianos (supra) at [10]). He could reasonably expect it would be used in evidence against him. In these circumstances it is submitted that Mr Wilson must have been aware that there would be consequences to his statements, including significant consequences for himself in admitting to his own involvement in the crimes, and the representations would not have been made lightly in such circumstances.
(3)	This is particularly so given the serious nature of the crimes alleged by police. As noted by the learned trial judge, he would have been aware of the serious nature of the complainant's injuries, given that on his own account he was the last of the co-offenders to see the complainant (Vol 2, T227).
(4)	He was initially reluctant to name the applicant as being the person he arrived at the unit with, despite describing the actions of this person in detail. Later in his interview with police he spoke of a 'code' he abided by, in which you 'own up to your own mistakes but don't drag anyone else down with you' (Vol 2, T145). It can be concluded from this context that Mr Wilson did not wish to shift blame onto the applicant himself and did not have an interest in seeing the applicant charged.
(5)	Eventually Mr Wilson agreed that the person he was speaking about was the applicant, but only once he had concluded that the police were aware of the applicant's identity (Vol 3, 44). Where representations are made in circumstances in which the representor is aware of the existence of other objective evidence, this has been considered to be a circumstance of reliability (Vitale (supra) at [85], R v El Masri (supra) at [27]).
(6)	Mr Wilson was aware that Mr Herlihy, Mr Wilmot and Ms Pace had been interviewed but it is unlikely that he would have been aware of their contents of their representations;
(7)	Further, at the time of making the representations it is unlikely that Mr Wilson would have had a sophisticated understanding of the criminal law pertaining to criminal responsibility of parties to crimes, or the concept of extended unlawful common purpose. Therefore, at the very least, his representations placing himself and the applicant at the scene are likely to be reliable.
(8)	The applicant submits that the representations were unreliable in part due to Mr Wilson being tired due to lack of sleep and drug use. However the learned trial judge found that the answers given by Mr Wilson in the interview were lucid and responsive and that there was nothing in the manner of the interview or the answers given that suggested Mr Wilson's assertions were unreliable due to lack of sleep (Vol 2, T276). There was nothing in Mr Wilson's manner to suggest there was any physical or emotional reason that

(9)	Mr Wilson gave a detailed account of the relevant events (Kefalianos at [10]) and his account was not 'inherently unlikely' (Harris at [44]-[45]);
(10)	It was not a case in which Mr Wilson had been promised immunity from prosecution (see Australian Law Reform Commission Report 102, p236);
(11)	There was no evidence of animosity between Mr Wilson and the applicant." (Emphasis added at (72)-(73) above)

"80	Whilst His Honour did direct the jury not to speculate why Clinton Wilson was not called [P656], but how could they not? The prosecutor had already told the jury that those witnesses will be called, because they are obliged to; and they were not willing.
81	The learned trial judge told them Mr Wilson was up next. There was a natural expectation, followed by bewilderment whilst suddenly, they are told not to speculate why that expectation was not delivered upon.
82	Coupled with the other co-offender, Jake Herlihy, who said in the presence of the jury that he did not want to give evidence, is a bridge too far to expect the jury to not possibly consider that.
83	It was this cumulation of prejudice on the admission of the statement that raised the bar above the probative value of the statement that could not be tested."

"(1)	Whilst there was evidence that Mr Herlihy had spent time with Madelon Pace and Sammual Wilmot after the crimes were committed, following their arrest he was unlikely to have had an opportunity to speak with them prior to commencing his own interview at 11:20pm on 12 January 2018. He was told during the interview that Ms Pace and Mr Wilmot had been interviewed, however he would not have been aware of what they told police. This minimised the risk of fabrication.
(2)	There was nothing about Mr Herlihy's manner or appearance during the interview that suggested his answers were unreliable, noting the learned trial judge viewed the entire interview. Mr Herlihy did not appear to be under the influence of alcohol and drugs, appeared alert and responsive. His answers were fluid and prompt.
(3)	The representations admitted into evidence were against Mr Herlihy's interest, whilst simultaneously having probative value on the case against the applicant. It is submitted that this impacts positively upon the likelihood of their reliability.
(4)	They were made in the context of a formal police interview, under caution. He could reasonably expect it would be used in evidence against him. It would have been clear to Mr Herlihy that his representations would have serious consequences (Kefalianos (supra) at [10]).
(5)	His account was detailed.
(6)	Mr Herlihy was clearly reluctant to name the applicant (and Clinton Wilson) as a person involved in the crimes. It was only at the end of the interview that he agreed that one of the 'guys' he had been speaking about was Corey Gesler. This suggests that that he does not wish to shift the blame onto another individual and had no interest in seeing the applicant charged.
(7)	There was no evidence of animosity between Mr Herlihy and the applicant;
(8)	It was not a case in which Mr Herlihy had been promised immunity from prosecution (see Australian Law Reform Commission report 102, p236). "