Huici v The King

Case [2023] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2022 0176
SHANE HUICI Applicant
v
THE KING Respondent

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JUDGES: NIALL and T FORREST JJA
WHERE HELD: Melbourne
DATE OF HEARING: 19 January 2023
DATE OF JUDGMENT: 3 February 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 5
JUDGMENT APPEALED FROM: DPP v Huici (County Court of Victoria, 25 November 2022, Judge Quin)

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CRIMINAL LAW – Leave to appeal – Interlocutory decision – Evidence – Elderly complainant gave multiple representations after incident including VARE interview – Where complainant not available to give evidence at trial – Whether representations admissible under exception to hearsay rule for criminal proceedings if maker not available – VARE not made shortly after incident as not under proximate pressure of the incident – Open to conclude VARE given in circumstances that make it highly probable representation was reliable – Able to ameliorate unfair prejudice from inability to cross-examine – Leave to appeal refused.

Evidence Act 2008, ss 65 and 137.

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Counsel
Applicant: Mr R Nathwani and Ms H Baxter
Respondent: Ms KB Hamill

Solicitors
Applicant: Doogue + George Criminal Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

s

NIALL JA
T FORREST JA:

  1. At a forthcoming trial, which will be heard by a judge alone, the prosecution will allege that the applicant broke into an aged care facility, went into a room in which an elderly resident was sleeping and climbed on top of her and inserted his penis into her mouth. He fled the scene when he was interrupted by a staff member. The complainant was 90 years of age at the time.

  2. The alleged conduct is reflected in a number of charges, the most serious of which are aggravated burglary and rape.

  3. Although he gave a no comment record of interview, for the purposes of the trial, the applicant will not dispute that he entered the aged care facility. He will also not dispute that he came into contact with the complainant but denies any sexual offending. It appears he will contend, although the evidentiary basis for the contention is not clear, that he did so intending to steal a mobility scooter.

  4. The alleged offending occurred at around 4:30 am on Sunday, 15 August 2021. At 4:34 am the complainant activated a distress alarm which she wore on a lanyard around her neck. Around a minute after the alarm signal, a registered nurse arrived at the complainant’s room and heard the complainant crying. The registered nurse observed a man straddling the complainant with his hands on the bed and with one leg on the bed and the other on the floor. The man told the care worker to ‘get out’ and as she retreated the man left the room and ran down the corridor. The nurse ran to the nurses’ station to call police, along the way she saw another care worker and told him that there was a stranger in the facility.

  5. The two workers ran to the nurses’ station and…

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Huici v The King [2023] VSCA 5
Case
[2023] VSCA 5
Decision Date

CaseChat Overview and Summary

In the matter of Huici v The King, the applicant sought leave to appeal against an interlocutory decision concerning the admissibility of certain hearsay evidence in a criminal proceeding. The case involved allegations of sexual assault against the applicant, with the primary evidence being representations made by the elderly complainant to various individuals, including medical staff, police officers, and family members, following the alleged incident. The central legal issue was whether these representations could be admitted under an exception to the hearsay rule in the Evidence Act 2008 if the complainant was unavailable to testify at the trial. Specifically, the court had to determine if the Video Assisted Rape Examination (VARE) interview conducted with the complainant could be considered reliable enough to be admitted as evidence.

The court examined the provisions of the Evidence Act, particularly section 65, which allows for exceptions to the hearsay rule in criminal proceedings if the maker of the representation is unavailable. The court noted that the hearsay rule, as set out in section 59, generally prohibits evidence of a previous representation to prove the existence of an asserted fact. However, section 65(2) provides exceptions, including when the representation was made in circumstances that make it highly probable that the representation is reliable. The court considered the timing and circumstances of the representations, including the VARE interview, and whether they were made shortly after the incident or under conditions that could ensure their reliability. The court also considered whether the unavailability of the complainant to testify at trial would cause unfair prejudice to the applicant.

After reviewing the evidence and arguments, the court concluded that the VARE interview and other representations made by the complainant shortly after the incident were made under circumstances that made it highly probable that they were reliable. The court held that these representations could be admitted under section 65 of the Evidence Act. The court also found that the unavailability of the complainant did not unfairly prejudice the applicant to the extent that the representations should be excluded. Consequently, the court denied the applicant's application for leave to appeal.

The final orders of the court were that the application for leave to appeal was refused, and the representations made by the complainant, including those from the VARE interview, would be admissible as evidence in the criminal proceeding.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Part 3.2 of the Act is concerned with ‘Hearsay’. The hearsay rule is set out in s 59 as follows:The hearsay rule—exclusion of hearsay evidence(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.(2)Such a fact is in this Part referred to as an asserted fact.(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.NoteSubsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales in R v Hannes.[[1]][1](2000) 158 FLR 359; [2000] NSWCCA 503. Section 62 provides (so far as relevant):Restriction to “first-hand” hearsay(1)A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.(2)A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. ... So far as relevant, s 65 provides:Exception—criminal proceedings if maker not available(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—(a)…;(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)…. As foreshadowed, the prosecution will seek to adduce hearsay evidence of representations made by the complainant. They include the representations made to the nurse, care worker, Dr Prakash, the complainant’s son, DSC Garner and a representation that was overheard by the General Manager over the telephone. Importantly, they include the representations contained in the recording on the body camera operated by SC Dorward. That evidence includes representations made by the complainant that:(a)the man had tried to put his tongue in her mouth;(b)she had been raped; (c)that the man had tried to put his penis in her mouth; and(d)that the man had put his penis into her mouth. The applicant does not dispute that these representations fall within par 65(2)(b) in that they were made shortly after the asserted fact, and the applicant does not contend that the representations were fabricated, in the sense of deliberately made up, by the complainant.[2] For that reason, at first instance the argument on the applicability of pars 65(2)(b) and (c) was solely directed to the VARE. In addition, the applicant submitted that all of the hearsay evidence should be excluded under s 137 of the Act.[2]DPP v Tran (Ruling No 2) [2019] VSC 824, [19] (Bell J); R v Mankotia [1998] NSWSC 295, 5–6 (Sperling J) (‘Mankotia’); R v Polkinghorne (1999) 108 A Crim R 189, 195–6 [39]–[45] (Levine J); [1999] NSWSC 704; Conway v The Queen (2000) 98 FCR 204, 241–2 [138] (Miles, von Doussa and Weinberg JJ); [2000] FCA 461 (‘Conway’); Williams v The Queen (2000) 119 A Crim R 490, 502 [47] (Whitlam, Madgwick and Weinberg JJ); [2000] FCA 1868 (‘Williams’).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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