Glowacki v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0136

ROBERT GLOWACKI	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, T FORREST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2023
DATE OF JUDGMENT:	31 July 2023
DATE OF REASONS:	3 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 176
JUDGMENT APPEALED FROM:	DPP v Glowacki (County Court of Victoria, Judge Wraight, 31 January 2022)

---

CRIMINAL LAW – Appeal – Conviction – Aggravated home invasion – Hearsay evidence – Evidence of asserted fact – Whether first-hand hearsay – Previous representation of unavailable witness to prove asserted fact in previous representation of another – Evidence inadmissible – Appeal allowed – Evidence Act 2008, ss 62, 65(2)(b) and (c).

---

Counsel
Applicant		Mr J O’Connor
Appellant		Ms E Ruddle KC
Solicitors
Applicant	Emma Turnbull Lawyers
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
KENNEDY JA:

Following a trial in the County Court, a jury found the applicant guilty of aggravated home invasion (for which he was subsequently imprisoned).[1]
[1]See DPP v Glowacki [2022] VCC 699 (Judge Wraight).
The applicant subsequently made an application for leave to appeal against conviction on a ground that challenged the admissibility of certain hearsay evidence adduced at trial.
During the hearing of the application in this Court on 31 July 2023, senior counsel for the respondent fairly and properly conceded that the application must succeed. We thus made orders granting leave to appeal against conviction; allowing the appeal; setting aside the conviction; and remanding the applicant for retrial. These are our reasons for those orders.
In brief summary, the factual background is as follows. At about 12.50 am on 28 November 2019, the applicant’s cousin, Lauchlan Bright, armed with a hatchet, and two armed co-offenders — one of whom the prosecution alleged was the applicant — forced their way into a house in Rupert Street, Mitcham. One of the offenders threatened an occupant with a knife and Bright removed various items from the house. At some point, one of the offenders fled, followed shortly after by Bright and the other offender. Police arrived at the house at 1.05 am. They saw Bright run from the property, but lost sight of him.
At 1.44 am, police from the Public Order Response Unit intercepted a car in the vicinity of Rupert Street. The driver and sole occupant was Alyce Hammel. She told police that she was on her way to 5 Rupert Street to visit a friend called ‘Sarah’. Police told her to leave the area. Subsequent enquiries revealed that nobody named Sarah lived at 5 Rupert Street.
About 50 minutes after commencing a search, the Canine Unit located Bright — wearing only one shoe — in the backyard of nearby premises. Police continued to search the vicinity for his co-offenders, but they managed to evade the police and flee the area.
A couple of days later, on 30 November 2019, a female resident of Rupert Street noticed several smears and droplets of blood on her car. Thinking they might be connected to the offending two days previously, she contacted police. Samples of blood from the car were subsequently analysed. DNA from a single contributor, matching the applicant’s, was located.
Police conducted a record of interview with Hammel on 24 December 2019. She was provided with a transcript of the interview on 18 June 2020; and, in a statement made to police on 24 November 2020, she declared the contents of the transcript of the record of interview to be ‘true and correct’ (albeit she later purported to recant in a statement made to a solicitor on 10 November 2021).
Although the prosecution intended to call Hammel in the applicant’s trial, and her name was endorsed on the indictment as a prosecution witness, she avoided contact with the informant, and, as a result, service of a subpoena to give evidence. Furthermore, despite the trial judge issuing a warrant for Hammel’s apprehension under s 194(2) of the Evidence Act 2008 (‘the Act’), police could not locate her so as to bring her before the court to give evidence.
On application by the prosecution, the trial judge determined that, in accordance with cl 4(1)(f) and (g) of pt 2 of the Dictionary to the Act, Hammel was not ‘available to give evidence about a fact’. Over objection, the judge permitted the prosecution to adduce the following (edited) portion of Hammel’s record of interview, ruling that the evidence was admissible under ss 65(2)(b) and (c) of the Act (and did not fall to be excluded under s 137):
Q 240 Yep.
A Yep. He – that was probably the only thing that he said, that – ‘cause he said he’d – jumping over fences and he had cuts all over his legs and - - -
Q 241 O.K.
A He was like, “The[y] can’t have got it. How – what are they doing, scouring all the fences for DNA?” I go, “It’s not really that hard.” so they’re gonna pretty much know where you jumped the fence.” …
Q 250/
256Did he discuss, like, the incident at all, apart from just jumping fences, cutting his legs?
A Not really, no from what it sounded like, cops got there and they had to leg it.
In essence, the defence case at trial was that the applicant was not one of Bright’s co‑offenders and was not at the scene. The prosecution wanted to use the challenged portion of Hammel’s record of interview to prove that the applicant had made admissions to jumping over fences and cutting his legs — presumably in the course of escaping capture by police — and was concerned that he may have left his DNA behind, and so prove that he was at the scene of the aggravated burglary. Self-evidently, if admissible, the ‘sting’ in the impugned portion of Hammel’s record of interview was that it was capable of putting the applicant in the vicinity of the aggravated home invasion, and gave added strength to the evidence of the applicant’s blood being located on the Rupert Street resident’s car.
We consider, however, that the challenged parts of Hammel’s record of interview were inadmissible. The introduction of the evidence at trial has occasioned a substantial miscarriage of justice.
The starting point of any analysis is s 55(1) of the Act, which provides that evidence is relevant if it could rationally affect the assessment of the probability of a ‘fact in issue’, the principal fact in issue in this case being whether the applicant was at the scene of the aggravated home invasion. Except as otherwise provided by the Act, relevant evidence is admissible.[2]
[2]Section 56(1).
Next, s 59(1) of the Act, located in div 1 of pt 3.2 of the Act, creates the hearsay rule. It provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation (by virtue of s 59(2), such a fact being referred to as an asserted fact). Succeeding provisions of pt 3.2 provide exceptions to the hearsay rule, allowing for the admissibility of hearsay evidence in defined circumstances.
Importantly, s 62 of the Act, which is found in div 2 of pt 3.2, restricts admissible hearsay evidence under div 2 to a previous representation that was made by a person who had personal knowledge of an asserted fact. By virtue of s 62(2), a person has personal knowledge of the asserted fact ‘if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact’.
Section 65 of the Act, pursuant to which the judge admitted the impugned evidence, applies to a previous representation, defined in pt 1 of the Dictionary to be ‘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’. The judge was of the view that the evidence was admissible under ss 65(2)(b) and (c), which provide:
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; …
The asserted fact that the prosecution in this case wanted to prove was that the applicant had jumped over fences and cut his legs (and, thereby, to prove that he was in the vicinity of the aggravated burglary). Plainly, the evidence of that asserted fact would have had the character of first-hand hearsay had Hammel given evidence of it.[3]
[3]See also ss 81(1) and 82(a).
In the absence of Hammel, however, the asserted fact lost its character as first-hand hearsay, and, concomitantly, its admissibility. Given her absence, ss 65(2)(b) and (c) at best could only be relied upon to prove that the applicant had said things to her, not the content of what he said.
For these reasons, the impugned evidence simply was inadmissible.
Having fairly conceded as much, senior counsel for the respondent also conceded — once more, properly and fairly — that she could not contend that there had not been a substantial miscarriage of justice. That concession had to be accepted.
In the foregoing circumstances, it was necessary to allow the appeal, set aside the applicant’s conviction and order a new trial.

---

[2023] VSCA 176

31 July 2023