Harris v The Queen

[2006] HCATrans 247

[2006] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S19 of 2006

B e t w e e n -

FREDERICK O’NEAL HARRIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MAY 2006, AT 12.22 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR H.K. DHANJI.  (instructed by Legal Aid Commission of New South Wales)

MR L.M.B. LAMPRATI, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, this application raises a question of general importance regarding what might be called the Evidence Act’s res gestae hearsay exception.

GLEESON CJ:   It depends on the application of the statutory expression, “shortly after” and the, what I might call the reliability elaborations on that, does it not?

MR ODGERS:   Your Honour, it is very important to recognise that we are not talking about reliability, that the provision talks about unlikelihood of fabrication.  That is an important distinction which I will come to in due course, but, yes, your Honour is correct.  The Federal Court in Williams held that properly understood, section 65(2)(b) that “shortly after” had to be understood in the context of the following words and you had to be looking at the circumstances which make it unlikely to be a fabrication.  I will come to that, if I might, in a moment.

It is important to understand, your Honours, the general importance of this case because it applies to criminal trials where the maker of the statement is unavailable and that is broadly defined in the Act.  This provision applies in Federal Courts, New South Wales, Tasmania, the ACT.  Queensland has adopted the same provision.  Victoria has indicated they are going to enact it.  If I could get to the legal issues, we submit that the trial judge and the Court of Criminal Appeal were in error because properly understood it is a condition of admissibility, and that is the language of the Federal Court in Williams - they talked of “condition of admissibility” - under this provision that “the statements be made” either “during” “or under the proximate pressure of” the incident being reported.

The concept is that – if I could attempt to express it in my own words, that a speaker’s mind is still involved in the incident rather than getting a narrative about a detached event.  The Federal Court in Williams held that properly understood that is what this provision requires.

GLEESON CJ:   Do you mean like the res gestae?

MR ODGERS:   Your Honour, the Federal Court in Williams pointed out that it is apparent that this provision was ‑ ‑ ‑

GLEESON CJ:   Like that case where the man ran out and said, “Look what somebody has done to me.  Look what X has done to me”?

MR ODGERS:   Yes, your Honour.  Under the common law there was some uncertainty about the extent of the res gestae doctrine, whether it applied to statements made during the incident itself or whether it could extend to statements made “shortly after”, if I might use that language, and in cases like Ratten which went to the Privy Council, the Judicial Committee, it was held that it could extend to statements made shortly after but the principle that was isolated was that it was a statement made during involvement in the incident.  It was not a narrative – a detached narrative, it was, essentially, you were still under the pressure, under the part involved in.  It was a spontaneous statement which was closely connected to the incident about which the statement was made.

HEYDON J:   The Australian Law Reform Commission rejected the words “under the stress of the situation”.  That was postulated as a possibility in its report and rejected.

MR ODGERS:   Yes, that is true, your Honour.  We say that there is a distinction between requiring that a person be under stress and adopting an approach which looks at circumstances of spontaneity or involvement.  I have extracted at 111 of the application book the relevant parts of what the Law Reform Commission said and if you could go to that, your Honours, you will see at 111 at about 15 that:

A formula is used which takes up the suggestions of the Privy Council in Ratten’s case.

So, if I can stop there.  The Law Reform Commission appears to be indicating that it intended that the statutory provision would, in substance, reflect the approach taken by the Judicial Committee of the Privy Council.  If you look at footnote 125, which I have extracted at line 30, your Honours will see there is a reference to:

circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.  Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. 

So there is a distinction, perhaps a fine one, between an idea of being under stress and an idea of being involved in an incident so that when you are talking about it the statement is essentially a spontaneous one, you have not had any real opportunity to step back and perhaps consider how you might fabricate an account which would assist you in some relevant way.

That, in substance, is the concept which the Law Reform Commission appeared to adopt.  One of the difficulties, of course, is that the statutory language does not - and I accept this – unambiguously make that clear.  But, with respect, your Honours, the Federal Court in Williams looked at this very closely and it came to the view, having looked at what the Law Reform Commission said and having looked at the statutory language, that it was held that it was a condition of admissibility that the speaker be acting “under the proximate pressure” of the incident.

Now, how did the court come to that view?  Apart from referring to what the Law Reform Commission said it did what we say you have to do because the words “shortly after” do not make – you cannot give content to them unless you adopt some frame of reference.  Shortly after, in what sense?  That is the critical issue.  The Federal Court made what we say is plainly the correct point which is to give it a frame of reference you look at the other words in the provision and the other words are:

in circumstances that make it unlikely that the representation is a fabrication -

Now, your Honour the Chief Justice, I referred to this earlier, but the point is that the provision is going to truthfulness, it is not going to reliability.  So that if you ask the question, what is it about something said shortly after that links into the risk of fabrication or whether a person is being truthful, we say that shortness in time will only support an inference of truthfulness where it supports an inference that the person making the representation is still under the influence of the incident.

GLEESON CJ:   We will adjourn now until 2.00 pm.

AT 12.30 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, can I take you to Williams (2000) 119 A Crim R 490. At page 502 the court, at the top of the page, refers to this provision and they say in the third line:

Nevertheless, it is apparent that s 65(2)(b) draws directly upon the case law preceding the passage of the Act.  In such circumstances, it is appropriate to turn to the common law “to provide guidance on the issue”:  see Papakosmas at 313, per Gaudron and Kirby JJ.

It seems that the exception set out in s 65(2)(b) was intended to restate and reform the common law res gestae exception to the hearsay rule, ensuring that an overly narrow approach adopted in cases such as Bedingfield would be avoided.

Then there is a reference to Ratten.  Then, your Honours, at paragraph 47:

Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase “shortly after”.

What their Honours are saying there is that the provision provides a frame of reference to understand what “shortly after” means.  That is the point I was making before lunch that “shortly after”, given what follows in the provision, posits a temporal relationship with the incident which rationally tends to make it unlikely that the person is being untruthful and, as I said before lunch, your Honours, shortness in time after an incident will only support an inference of truthfulness where it supports an inference that the person making the representation is still unde the influence of the incident, instead of being detached from it.  As a result, your Honours, in paragraph 48 at about the middle of the paragraph their Honours concluded that:

Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication.

GLEESON CJ:   These passages were actually quoted by Justice Studdert, were they not?

MR ODGERS:   They were, your Honour.  I will get the relevant part of the judgment.

GLEESON CJ:   What is the part of the passage of the judgment of Justice Studdert that you say reveals an error of principle?

MR ODGERS:   Just before I answer that, your Honour, can I just confirm the very last thing in Williams I want to emphasise is that it relates to a condition.  A condition of admissibility is that:

the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact.”

HEYDON J:   It does not say “spontaneously”.  The section does not.

MR ODGERS:   The reference – if you go back to footnote 125 and what the Law Reform Commission ‑ ‑ ‑

HEYDON J:   Yes.  Section 65(2)(b) does not, though.

MR ODGERS:   No, your Honour, precisely, but what the Federal Court in Williams was doing was saying, well, if you look at what the Law Reform Commission said, they intended, it appears, to replicate Ratten.  Ratten talks about spontaneity or involvement.  So there is support in the ALRC.  The words themselves – the provision is somewhat ambiguous but you have to give a frame of reference to “shortly after”.  The frame of reference is unlikely to be lying.  What is it about the period of time which makes it unlikely a person is lying?  Answer, he is still involved, it is spontaneous, it is not detached.  He has not had an opportunity, really, to concoct something.

HEYDON J:   I understand your argument.  I am just saying it does not – or the reasoning in Williams does not fit the terms of the section very well.  If the word “and” were not there, there would be much less of a problem.

MR ODGERS:   Your Honour, I am the first to concede that the provision does not clearly say what we contend it says but we say that Williams – that when you carefully analyse it, the Williams judgment makes sense and that you do have to provide a frame of reference to what “shortly after” means.  I think in the application book we said “shortly after” can mean many different things in the different contexts so you have to give it a context.  The context is not general reliability.  It is not about freshness of memory, for example, which some authorities have thought it was because it is not concerned with that aspect, which is reliability, it is concerned about truthfulness.  That is confirmed by what the Law Reform Commission said because it talked about protection against lying.

HEYDON J:   By truthfulness you mean sincerity, in effect?

MR ODGERS:   Yes.  Which is a particular issue which falls within reliability, but it is a much narrower concept.

GLEESON CJ:   Did the Law Reform Commission draft this section?

MR ODGERS:   Yes, they did.  I can provide you with it.  It is almost identical in what the Law Reform Commission proposed.  But, returning to your Honour the Chief Justice’s question, what Justice – can I just say one ‑ ‑ ‑

GLEESON CJ:   I am looking at pages 89 and 90.

MR ODGERS:   Yes.  Just before I answer it specifically, it is important to note that it was argued to the trial judge that the evidence was not admissible because it was essentially a narrative, which is the kind of analysis that we are endorsing, your Honour, here.  The trial judge did not refer to that in his judgment.  He has not referred to this issue of involvement or pressure at all.  He gave his reasons at 13 which I will go to in a moment.

What the Court of Criminal Appeal was doing was in essence saying, well, even if he did not, is it defensible?  At the bottom of 89 Justice Studdert refers to the “proximate pressure” condition.  He does not refer to the fact that the Federal Court said it was a condition, he says:

In referring to “proximate pressure” in the above passage, plainly their Honours had in mind again the question of temporal restraint.

Then there is a passage extracted about “proximal pressure” and that is all that is said about it.  There is no further reference to this issue.  We say that Justice Studdert appears to have misunderstood what the Federal Court was holding, that it was a condition.  Justice Studdert does not refer to the issue again.  He simply says it was open to find that it was shortly after when, of course, the trial judge did not refer to this issue at all.  It just simply was not a factor.  Can I take you to what the trial judge said, your Honour, at page 13?  At page 13 in the written reasons, at line 10, he says:

(1)the fact that it was a statement of one of the two people involved in the incident is not a reason (in my view) to refuse admission of it into evidence;

(2)as it was made within 24 hours after the incident, it was made (in my view) shortly after the incident –

So that is it.  That is the totality of his reasons on that issue.  Then:

(3)the circumstances in which it was made, namely a statement made to police in a police station as to what had occurred in an incident, which statement was likely to be the basis for the possible charging of the accused with an offence, made it unlikely that the representations contained in it were fabrications, and made it highly probable that the representations contained in it were reliable.

Your Honours, we say there are numerous errors there.  There is a failure to refer to the proximate pressure issue.  There is a failure to refer to the question of narrative.  There is a failure to refer to the fact that in this case Mr Wright was asked by the police on the previous day to come and make a statement.  So it is not a case of him being asked and giving a spontaneous response.  He was given a day’s notice that they wanted a statement and in those circumstances we would submit that on no reasonable view could you say that it was anything other than a narrative of detached events.

For the actual reasons that were given for concluding that it was unlikely to be a fabrication, we submit that there is nothing inherent in the making of a police statement such that it is unlikely to be a fabrication.  The fact that you, at the beginning of a statement say, well, you understand you might be prosecuted if it is used in evidence may be a factor that you might take into account.  It may bear on the question of reliability but to conclude on that that it is unlikely to be a fabrication we would say is just wholly unreasonable.  So we say the trial judge’s analysis wholly miscarried for all of the reasons that I have given.

Your Honours, if I could summarise then the argument.  We say that we rely on the Federal Court.  We say that is plainly in our favour.  We say that it is supported by what the Law Reform Commission said.  We accept that there is some ambiguity in the provision but we say that it is a matter of general importance that this Court grant special leave to resolve that ambiguity.  We say that on a careful analysis of the provision what the Federal Court held in Williams is entirely defensible and indeed right.  This was a case where the statement that was admitted essentially rebutted the only defence that was being advanced ‑ ‑ ‑

GLEESON CJ:   I wonder, is it really a matter of ambiguity or is it a matter of deliberate lack of precision?

MR ODGERS:   Your Honour, there is nothing in the Law Reform Commission – what the Law Reform Commission says that they were deliberately being imprecise.  What they seem to be saying was that it was intended to replicate the Ratten approach.  Now, it does not use the words ‑ ‑ ‑

GLEESON CJ:   Ambiguous means it could have two different meanings.

MR ODGERS:   Yes.

GLEESON CJ:   What are the two possibly different meanings that ‑ ‑ ‑

MR ODGERS:   The two arguments against – the arguments against us are that the words “shortly after” have nothing to do with fabrication.  It stands on its own.  It might be you take into account reliability considerations or freshness of memory.  That is the argument against us.  The argument in our favour is, the frame of reference offered by the provision to determine whether something is “shortly after” is the issue of concoction, fabrication, lying and that you have to consider the question of whether or not it was made “shortly after” in that context, and in that context it inevitable leads one to what is the Ratten approach.

GLEESON CJ:   They could have said “made during the incident” and they did not say that.

MR ODGERS:   During or shortly after.

GLEESON CJ:   They could have said “during the incident” and they did not say that.

MR ODGERS:   Yes, correct, your Honour.

GLEESON CJ:   They could have said “immediately after the incident” and they did not say that.

MR ODGERS:   No, your Honour.

GLEESON CJ:   It tends to suggest that sensibly they were using words that were not precise.

MR ODGERS:   Your Honour, I understand the argument.  We say that the Federal Court in Williams came to the correct conclusion which is the alternative view which is that while there was a decision to leave some flexibility that, properly applied, the correct analysis is to look for proximate pressure, involvement and not a detached narrative.

GLEESON CJ:   Justice Studdert in this case did not suggest that he disagreed with the Federal Court, did he?  I know you say his actual application of the principle was inconsistent with what they said, but they never suggested that the Federal Court was wrong.

MR ODGERS:   No, he did not say that he disagreed with it.

GLEESON CJ:   No.  He purported to apply it, actually.

MR ODGERS:   I am not sure I could go quite that far, your Honour.  I have taken your Honour to what was said.  My junior reminds me that the

argument that was advanced in the Court of Criminal Appeal was that Williams should not be followed, but the court did not specifically say one way or the other what its position was on that.  We say that the only sensible conclusion from the way that the Court of Criminal Appeal dealt with it was to not follow it.

GLEESON CJ:   We do not need to hear you, Mr Lamprati.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is dismissed.

AT 2.12 PM THE MATTER WAS CONCLUDED