Huici v The King
[2023] VSCA 5
•3 February 2023
| 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:
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.
The alleged conduct is reflected in a number of charges, the most serious of which are aggravated burglary and rape.
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.
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.
The two workers ran to the nurses’ station and called police. Several minutes later the complainant arrived at the nurses’ station and she was let in, she was bleeding from an injury to her right arm and there was blood and bruising near her mouth.
Police attended.
In the immediate aftermath of the event, the complainant gave a number of accounts as to what had happened, including an account given to police within a very short time after the incident which was recorded by a police officer on a body worn camera. On 17 August 2021, around 56 hours after the event, the complainant conducted a VARE with police.
For the purpose of assessing the complainant’s capacity to participate in a special hearing, the prosecution arranged for the complainant to be assessed by Dr Evrim March, a clinical neuropsychologist. Dr March provided two reports dated 27 December 2021 and 22 May 2022. Dr March says that the complainant is suffering from dementia, which significantly affects her memory. It will be necessary to refer to the expert opinion in due course. It is sufficient to note that it is common ground between the parties that the complainant is not available to give evidence at the trial.
At the trial, the prosecution intends to adduce evidence of the various accounts that were given by the complainant including the body camera recording and the VARE. To that end, the prosecution has served a notice under s 67 of the Evidence Act 2008 (‘the Act’) (‘the hearsay notice’). The hearsay notice identifies the hearsay representations that are sought to be adduced and states that the prosecution rely on s 65(2)(b) of the Act as the basis for the admission of the evidence. In a hearing on the admissibility of the evidence before the trial judge, the prosecution also relied on s 65(2)(c) of the Act.
The representations
Although, as will appear, the hearsay objection was ultimately confined to the VARE, all of the representations are also sought to be excluded under s 137 of the Act and it is convenient at this point to refer, briefly, to all of the relevant accounts given by the complainant which the prosecution will seek to prove.
According to the nurse, after she had called police and attended to the complainant’s bleeding arm she asked the complainant what the man had done to which the complainant replied ‘he tried to put his tongue inside my mouth’.
In her statement to police, the care worker who went with the nurse to the nurses’ station said that she called the General Manager and the Care Coordinator while the nurse was talking to police on another phone.
The care worker said that the complainant came to the door of the nurses’ station and they let her in. She said that the complainant told them that there was a man with a red cap, he had jumped on her bed while she was sleeping and tried to put his tongue in her mouth.
During the time that the complainant was in the nurses’ station, the care worker was on the phone to the General Manager of the facility. In her statement, the General Manager said that at 4:42 am she received a call from the care worker who told her that there was someone in the building and they had hurt the complainant. The General Manager was told that the nurse and care worker had locked themselves in the nurses’ station and had called police.
The General Manager said that over the telephone she heard knocking on a door and heard the complainant say ‘help me, help me, I’ve been raped’. The General Manager then hung up and called police and told them that there was someone in the building and that a resident had been raped.
A short time later, police arrived. Senior Constable Dorward activated her body camera when she arrived. She attended on the complainant, who was settled in the nurses’ station. SC Dorward had a conversation, which was recorded on the body camera, in which the complainant said:
•a male stranger had entered her room and got on top of her;
•‘he tried to put his penis into my mouth’ and that ‘he put his penis into my mouth’;
•he came in and raped her and that he tried to rape her;
•he tried to put his tongue into her mouth;
•the stranger had a beanie on his head;
•he told her to shut up and say nothing;
•he tried to pull her pants down;
•she pressed her duress alarm (he told her not to);
•she injured her arm and was bleeding;
•the stranger was in her room for about five minutes;
•it was dark in her room at the time;
•the stranger was in his 20s or 30s and of slim build; and
•the attack was terribly frightening and awful.
At 5:11 am the complainant telephoned her son and told him: ‘I’ve been raped’. The complainant was transferred to hospital. Later that morning, the complainant’s son attended the hospital and saw his mother. He said that when he entered her hospital room, his mother quivered and broke down and said that a man had tried to put his tongue in her mouth.
At 8:02 am the complainant underwent a medical examination by Dr Nitin Prakash at the hospital. The complainant told Dr Prakash that she was asleep in her bed at the nursing home where she resides when she woke at about 4:45 am to find an unknown male on top of her. The male tried to place his penis into her mouth. She resisted and pushed her duress alarm. The complainant stated she was unsure of the extent or duration of the penile-oral penetration.
After the medical examination, the complainant spoke to Detective Senior Constable Garner. In his statement, DSC Garner records the following exchange:
I said, ‘Tell me what happened?’
She said, ‘He just barged in and was on top of me. He must have known I about the alarm, it was around my neck.’
I said, ‘How did he get his penis into your mouth, if he was lying on you?’
She said, ‘He moved up while on top of me.’
(the complainant motioned with her hands, the person moving up to her face)
I said, ‘Did he put any part of his penis into your mouth?’
She said, ‘Only just a bit, but I was pushing him off me.’
I said, ‘How much did it go in?’
She said, ‘Only a bit, just past my lips.’
I said, ‘Did it go past your teeth?’
She said, ‘No.’
I said, ‘I've heard he put his hands down the front of your pants?’
She said, ‘No.’
As already noted, the complainant completed a VARE, which commenced at 12:57 pm on 17 August 2021. It was undertaken in the company of an independent third person.
Asked to tell what had happened from the beginning, the complainant said that the door of her room was slightly open and she noticed that someone had walked into the room. The complainant thought it was a staff member but ‘he came and jumped on top of my bed… right on top of me and I couldn’t move’. Although she could not recall what it was called, and was prompted by the independent third person that it was called an alarm, the complainant said that she had an alarm which the person had tried to take away from her. She said that he ‘pressed on me and then he tried to put his penis in my mouth’. She continued:
So he did that but I fought him off and I ran, pressed the bell, pressed this — I happened to and he tried to stop me but I think it must have got through because the staff, they come up and he took off. He just ran out of the room.
She said that she had thought that it was one of the staff who had come into her room ‘until he landed on top of me, … and that’s when he started this, trying to put his penis in my mouth and it was really horrible’.
The complainant said on a number of occasions that the man had tried to put his penis into her mouth. Asked questions about that topic, the complainant said that ‘he definitely didn’t put it into my mouth but it was right close to my lips’ and that she did not think ‘it would’ve got into my mouth at all’.
Other evidence
At trial, the prosecution will also seek to adduce DNA and fingerprint evidence.
During the medical examination, samples were taken from an oral rinse, low gum and upper denture swabs and a lip swab. A report of a forensic examination record that spermatozoa were observed on microscope slides made from the samples taken from the complainant. Sperm fractions were analysed and contained mixed DNA profiles in relation to the oral rinse and lower gum swaps and a single source DNA profile in relation to the lip swab. The report contains the opinion that the applicant is 100 billion times more likely to be the contributor of the DNA found in the sperm fraction.
The applicant’s fingerprints were found at the scene including on the front and back of the complainant’s bed head.
The evidence as to the complainant’s capacity
In his statement to police, the complainant’s son described his mother ‘generally as reasonably clear, concise in terms of her memory … [with] her wits about her’. In addition to that lay evidence, there are the reports of Dr March and a letter from her General Practitioner, Dr Newman.
Dr Shobhana Nambiar was on duty at the emergency department of the hospital to which the complainant was taken and examined the complainant. In her report dated 2 October 2021, Dr Nambiar records that, on examination, the complainant appeared mildly confused, not orientated to the day or month but was otherwise alert, aware of her surroundings and interacting with family.
In his letter dated 17 November 2021, Dr Newman said that the complainant had consulted him as a GP for approximately 20 years. He said that after the complainant’s husband had passed away, approximately three and a half years before, the complainant had suffered more anxiety. He noted that the complainant had recurrent episodes of body shaking and feeling faint which a specialist neurologist had considered to be functional in nature and possibly anxiety related. Dr Newman recorded that there had been several episodes of confusion, with no clear cause identified despite hospital admissions and testing. He noted that, to his knowledge, the complainant did not have a formal diagnosis of cognitive loss.
In her first report, which was prepared four months after the incident, Dr March noted that the complainant was taking a number of medications including steroids (prednisolone), antipsychotic (risperidone), anti-anxiolytic (oxazepam), painkiller, and digoxin for heart regularity. She noted a geriatrician review report (dated 13 February 2020) noted subtle cognitive difficulties and that a letter from her GP recorded several episodes of confusion that had no identified cause, despite investigations during hospital admissions, which Dr March inferred pre-dated the incident.
Based on examination, Dr March noted limited hearing ability and occasional periods of confusion throughout the assessment, at times forgetting a topic previously discussed and clarified. At the time of the assessment Dr March considered that the complainant had a cognitive impairment due to dementia with significant verbal memory deficit and language production changes. She considered that it likely that there were additional contributory factors arising from the incident including the effects of low sleep quality, the trauma impact of the incident and medication side effects.
Dr March considered that the complainant was capable of understanding an obligation to answer questions truthfully. In that respect she said:
Relying on her preserved intellect, and intact verbal skills of intellect, [the complainant] has the ability to understand that she has an obligation to answer questions truthfully. Even though her thinking is concrete, she has reasonable ability to understand the meaning of words, and reasonable general knowledge of facts, these skills providing her the basis to understand this obligation. Furthermore, she has an intact sense of self, and good awareness of who she is, with preserved social comportment and understanding of social situations.
Although Dr March thought that the compliant had a subsisting cognitive impairment due to dementia she said:
In this context, I consider that the evidence obtained from her in the early days of following incident will provide more information than can be obtained months later during a Court process. She currently remembers the incident sufficiently to ‘be haunted’ by it. However, whether she will be able to recall the details with clarity and reliably is highly debatable, particularly noting the likely impact of trauma on her cognitive status since the incident.
The statutory provisions
Part 1 of the Dictionary to the Act defines representation as follows:
representation includes—
(a) an express or implied representation (whether oral or in writing); or
(b) a representation to be inferred from conduct; or
(c)a representation not intended by its maker to be communicated to or seen by another person; or
(d) a representation that for any reason is not communicated;
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.
Note
Subsection (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)….
The Judge’s ruling
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’).
The applicant submitted that the VARE did not meet pars 65(2)(b) or (c). In relation to the former, it was argued that the delay of more than 48 hours precluded the judge from finding that the representations were made shortly after the asserted fact.
In relation to par (c) the applicant submitted that the complainant was elderly and frail, she had been diagnosed with dementia and the Court could not be satisfied that the high reliability threshold in par (c) was met.
The judge held that the exceptions to the hearsay rule in pars 65(2)(b) and (c) were each satisfied.
In relation to par 65(2)(b) the argument revolved around whether the representations contained in the VARE were made shortly after the asserted fact. The judge observed that s 65 did not specify an outer limit and that the nature of the representation was relevant. After referring to the decision of Kaye J in DPP v Asling (No 2)[3] and Sperling J in Mankotia the judge held that it was necessary to consider whether the representor was detailing an event in which they were directly involved or an event that they had observed, the context in which the representations were made, the nature of the event or incident and the nature of the impact it may have had on the person.
[3][2017] VSC 38; approved in the Court of Appeal in Asling v The Queen [2018] VSCA 132.
Having regard to those matters, the judge noted the VARE was conducted a little over two days after the incident, they related to a significant and traumatic event and the complainant had provided a more limited account of what had occurred at the time when she was distressed. The judge said that the effluxion of time between her release from hospital and setting back into the facility was not such as to break the proximate pressure on her in providing a full narrative of that traumatic and personal incident.
As already noted, there was no suggestion of fabrication and accordingly, the judge held that the representations in the VARE were made shortly after the incident and fell within par 65(2)(b).
The judge then turned to par 65(2)(c). The judge referred to the evidence of Dr March but noted that there was no evidence that, at the time of the making of the representation, the complainant was suffering from such a degree of impairment that the circumstances of her making a representation was such that it could not be said that it was highly probable that it was reliable.[4]
[4]DPP v Huici (County Court of Victoria, 25 November 2022, Judge Quin) [82] (‘Reasons’).
The judge noted that the complainant was providing an account of a traumatic incident that had occurred only days earlier. The VARE was conducted in a formal environment and the complainant had indicated her understanding of the importance of telling the truth. The judge considered that any inconsistencies between the accounts given by the complainant went to her general credit and were not relevant to par 65(2)(c). Nor were the representations demonstrably inherently incredible, fanciful or preposterous.[5]
[5]Ibid [88].
Based on these matters, the judge concluded that it was highly probable that the representations in the VARE were highly reliable. For that reason, the judge found that par 65(2)(c) was satisfied.
Proposed grounds of appeal
If granted leave, the applicant would propound the following 3 grounds of appeal:
(1)The learned trial judge erred in finding that the complainant’s representations contained in a VARE interview conducted on 17 August 2021 were made ‘when or shortly after’ the asserted facts occurred.
(2)The learned trial judge erred in finding that the complainant’s representations contained in a VARE interview conducted on 17 August 2021 were made in circumstances that make it highly probable that the representations are reliable.
(3)The learned trial judge erred in failing to find that the probative value of the previous representations set out in the hearsay notice dated 21 June 2022 was outweighed by the danger of unfair prejudice, in circumstances where the complainant had not been and would not be available for cross-examination.
The nature of the appeal
The decision of the judge to admit the evidence was interlocutory. In order to overturn the decision, the applicant is required to establish an error of the kind identified in House v The King.[6] The applicant does not seek to contend specific error on the part of the judge but rather submits that the ultimate conclusions reached by the judge were not reasonably open to her.
[6](1936) 55 CLR 499; [1936] HCA 40.
Before addressing the specific arguments, it is convenient to make some points of general application. First, as the High Court explained in Sio v The Queen, it is ‘no light thing to admit a hearsay statement inculpating an accused’ because where s 65 applies ‘the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion’.[7]
[7](2016) 259 CLR 47, 65 [60] (French CJ, Bell, Gageler, Keane and Gordon JJ); [2016] HCA 32 (‘Sio’).
Second, in applying s 65, it is necessary to identify the precise representation that is sought to be adduced and then to consider the circumstances in which that representation was made in order to determine whether the conditions of admissibility specified in s 65(2) are satisfied.
Ground 1: s 65(2)(b); was the VARE made shortly after the asserted fact
The applicant submits that — having regard to the fact that the VARE was recorded more than two days after the incident, entailed the making of a formal statement and, as appears from its content, was made after the complainant had a period of reflection — the VARE was not made shortly after the events described by the complainant.
The applicant points to a number of examples in which the complainant said that she was not sure about certain details and qualified her recollection by saying that she ‘thinks’ certain things occurred and that in some respects her account of certain aspects were ‘what she can recall at the minute’. The applicant submits that these qualifications reflect the complainant having used the period of time to recall and reflect upon what had happened to her.
The construction of par 65(2)(b) has given rise to three interrelated questions of construction. The first is the ambit of the temporal requirement that the representations be made ‘when or shortly after’ the occurrence of the asserted fact. The second concerns the nature of the circumstances which may be taken into account. The third is the meaning of the word fabrication.
Only the first of these issues is of present concern in the application of par 65(2)(b). As to the third issue, it is well established that fabrication means a deliberate concoction. As to the second issue, it is convenient to examine the nature of the circumstances that may be taken into account under s 65 when addressing the judge’s conclusion that par 65(2)(c) was satisfied.
In dealing with the first question it is relevant, but not dispositive, to observe that par 65(2)(b) echoes the common law res gestae exception. The exception was narrowly confined and concerned utterances that were so clearly associated in time, place and circumstances, with the relevant event that they were capable of proving the existence of the asserted facts.
In Williams, the Full Court of the Federal Court said:[8]
Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase ‘shortly after’. As noted by Sperling J in [Mankotia], s 65(2)(b) ought not be regarded as simply importing a test of:[[9]]
reliability at large. It is a narrower test... [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial.
For these reasons, it would be a mistake, in determining whether a statement has been made ‘shortly after’, to over-emphasise such matters as whether the events in question were ‘fresh’ in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (‘when’) or under the proximate pressure of (‘shortly after’) the occurrence of the asserted fact.
[8](2000) 119 A Crim R 490, 502 [47] (Whitlam, Madgwick and Weinberg JJ); [2000] FCA 1868.
[9][1998] NSWSC 295, 10.
The focus of the condition is not on whether there was likely to be accurate recall by the witness who is unavailable but on the closeness of the temporal connection between the making of the representation and the relevant event or matter that is sought to be proved. It is informed by the same notion that underpins res gestae namely that some representations are inherently bound up and inseparable from the relevant act or incident that is described or from which its occurrence may be inferred and, once fabrication is excluded is likely to be reliable for that reason. Although the express condition is temporal, the requirement that it be contemporaneous with, or shortly after, the event will mean that almost inevitably the representations will also be associated in place and circumstances with the event.
The extent to which a representation, which is not made contemporaneously with the event, is nevertheless made under the ‘proximate pressure’ of the event will often depend on the subject matter of the representation and the extent to which the representor was involved in the incident. A traumatic or unusual event is likely to be exert a more powerful force in the mind of the witness, especially if the witness is directly involved.
In R v Byrce (No 1),[10] Beech-Jones J observed that a delay of 30 hours is difficult to reconcile with the requirement that the representations be made shortly after the event. However, that is a reflection of experience rather than a rule of thumb or guiderail. We agree with the judge that no fixed temporal period is set but equally the concept is not so elastic that it extends to all representations which are recent enough that recall is likely to be accurate.
[10][2014] NSWSC 495, [29].
It is important not to apply par 65(2)(b) as if it were concerned with ensuring reliability in some generalised sense. No doubt par 65(2)(b) is premised on the proposition that a representation made at the same time, or shortly after, an event is likely to be reliable once fabrication is excluded but, as the Full Court of the Federal Court noted in Conway, it would be a mistake to substitute for the statutory text the question whether the event was fresh in the mind of the representor. It would be to invert the process to say that because the event was fresh in the mind of the representor or described an event that was likely to stick in the mind that it should be regarded as having been made shortly after the event occurred.
Ultimately, we have come to the conclusion that it was not open to the judge to find that the VARE was made ‘shortly after’ the incident for the purposes of par 65(2)(b). As already observed, the issue is not whether the complainant was likely to remember the event, but whether in making the statement she was still under the ‘proximate pressure’ of the incident. By the time the complainant was interviewed for the VARE, more than two days had elapsed, the complainant had returned to the age care facility, the immediacy of the event had waned and the complainant had time for reflection and an opportunity to piece together the events of the night.
It is also relevant that the representations were not offered or volunteered in a spontaneous context but were elicited in a formal process in which details were explored and the complainant invited to elucidate and review her account. It is apparent both from the answers she gave and the explanatory nature of the questions that the complainant was being asked to reflect on what had happened. The account lacked any sense of spontaneity that will usually be a hallmark of a representation made shortly after the asserted fact. In reaching that conclusion we would not place any great weight on the apparent qualifications in the account given by the complainant since such qualified language may also be expressed very shortly after an event.
It is true that the representations contained in the VARE had followed earlier accounts given by the complainant which, the applicant accepts, were made shortly after the incident. In some contexts, the extent to which the representations form part of a continuous or relatively uninterrupted account may be relevant in assessing whether they are made shortly after the event. Here, the making of the formal statement in the VARE, which it was intended would stand as the complainant’s evidence in chief at any subsequent trial, can be distinguished in time, place and circumstance, from the immediate accounts given to police by the complainant in the few hours that followed the incident.
We would uphold ground 1. The judge found that pars 65(2)(b) and (c) were each satisfied. That is, her Honour found two independent bases for the admission of the hearsay evidence. It follows that success on ground 1 is not sufficient to overturn the ruling.
Ground 2: s 65(2)(c); ‘highly probable that the representation is reliable’
The applicant submits that the evidence of the complainant’s mental state and history of confused episodes precluded the judge from finding that any of the representations were made in circumstances that make it highly probable that the representations are reliable. He points to the evidence of capacity referred to above to make good the assertion that the complainant’s accounts could not meet the high threshold of par 65(2)(c).
The first step in addressing this ground is to understand the nature and kind of circumstances that may legitimately be taken into account for the purposes of assessing the reliability of the representations. In Sio, the High Court accepted the conceptual distinction between the circumstances in which a representation is made and facts that may show that the asserted fact is true. The distinction has come up in the context of determining whether other representations made by the representor may inform the reliability of the representation.
In R v Ambrosoli, in the New South Wales Court of Criminal Appeal, Mason P (with whom Hulme and Simpson JJ agreed) said:[11]
It would therefore appear that [Mankotia], Conway and [Williams] are at one in:
• focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and
• excluding evidence tending only to prove the asserted fact.
In my view this is a correct approach to s 65(2). To the extent that R v Dean[[12]] and R v Lock[[13]] decide otherwise they should not be followed.
The point of disagreement between [Mankotia] on the one hand and Conway/[Williams] on the other is the legitimacy of resort to inconsistent or consistent statements of the maker of the previous representation or other circumstances (whenever occurring) directly touching the credibility of the maker of the representation at the time of making the representation (cf the victim in R v Bedingfield[[14]]). Sperling J (at 10) indicated obiter that he would disregard these matters (see his reference to excluding from consideration ‘other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect’. On this I prefer the view of the Federal Court, a fortiori because it is presumptively binding having regard to the principle in Australian Securities Commission v Marlborough Gold Mines Ltd.[[15]] I would, however, emphasise that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2).
Accordingly, I would not exclude reference to events outside the time and place of the making of the previous representation itself from the range of ‘circumstances’ capable of reflecting on the unlikelihood of it being a fabrication when made or the high probability of it being reliable when made.
[11](2002) 55 NSWLR 603, 616 [34]–[37]; [2002] NSWCCA 386 (emphasis in original).
[12](Dunford J, 12 March 1997, unreported).
[13](1997) 91 A Crim R 356.
[14](1879) 14 Cox CC 341.
[15](1993) 177 CLR 485; [1993] HCA 15.
In our view, it was open to the judge to conclude that par 65(2)(c) was satisfied.
The circumstances include that the event recorded was traumatic and directly involved the complainant. The fact that a man climbed on to her bed and attempted to insert his penis into her mouth would have been confronting and remarkable. The complainant did not know the intruder and had no reason to embellish or exaggerate the incident. The incident had occurred just over two days before and in the ordinary course there was no risk of the memory dimming with the effluxion of time. The VARE was conducted in a formal environment, the police officers asked mainly non-leading questions and the complainant was given time to reflect and consider her answers. Her account was coherent and there was no obvious signs of impairment or cohesion. The answers were responsive to the question and followed a consistent line.
It is true that, as the applicant submits, at the time the complainant made the representations in the VARE she was elderly, lived in aged care accommodation and had some history of confusion that involved hospital admission. Although Dr March’s opinion as to the complainant’s mental state was obtained four months after the incident, and the traumatic nature of the incident itself and its consequences may have had an impact on the complainant’s capacity in the intervening period, there was at least some history of confusion that predated the incident. Further, it may be acknowledged that the police initiated the VARE process out of concern for the complainant’s capacity. In that respect we note that ss 366 and 367 of the Criminal Procedure Act 2009 provide that a VARE may be used for the purpose of eliciting evidence in chief, where the witness is a child or has a cognitive impairment.
The capacity, including the mental acuity, of the representor may be a circumstance that is relevant to any assessment of the reliability of representations made by that person. Although there was evidence of confusion, Dr March’s opinion was that this was more likely a reflection of an impaired memory. The judge concluded that the complainant was not labouring under any impairment that would cast doubt on the reliability of her account. That conclusion was open to her.
We would add, although the judge did not do so, in considering whether impaired memory or confusion were operative circumstances at the time of the VARE, it would have also been permissible to take into account as a relevant circumstance the complainant’s earlier consistent representations. They were capable of showing that at the time of the VARE her memory was not affected in a way that prevented or impeded her ability to recall recent events or the product of confusion.
In our view the applicant has failed to establish that the judge’s conclusion on par 65(2)(c) was not open to her.
Finally, we note that the prosecution did not seek to rely on the DNA evidence as a relevant circumstance for the purposes of s 65(2). It is not therefore not necessary to consider whether such independent evidence which is capable of corroborating her account might also be relevant to discount any suggestion that the complainant was affected by a confused state of mind or was likely to have imagined the matters she recounted. Further, it might be said, although it is unnecessary to form a concluded opinion, that the fact that the complainant was found to have sperm on her person is a circumstance that makes her later representation that the applicant tried to put his penis in her mouth a circumstance that ‘[in itself warrants] the conclusion that the representation is reliable notwithstanding its hearsay character’.[16]
[16]Sio (2016) 259 CLR 47, 68 [71] (French CJ, Bell, Gageler, Keane and Gordon JJ); [2016] HCA 32.
Ground 3: Should the evidence have been excluded under s 137?
The applicant submits that the inability to cross-examine the complainant is a substantial and unfair prejudice to the applicant. Specifically, he submits that the account will be unchallenged in circumstances where there are obvious and important inconsistencies in the account and the evidence of the complainant is critical to the prosecution case. He also contends that the applicant will be denied the opportunity to establish a factual foundation for alternate hypotheses consistent with innocence.
The applicant accepts that in assessing the probative value of the evidence it is necessary to take into account all of the proposed evidence.
In our view the evidence was highly probative. There appears to be no doubt that the applicant entered the facility as a trespasser, went into the complainant’s room, was on or near her bed and came into physical contact with the complainant. The complainant’s statements that the intruder had tried to put his penis in her mouth is crucial evidence that is supported by the DNA evidence. As already observed, the accounts given by the complainant were largely consistent including very shortly after the incident occurred. The representations were conveyed in a clear way and although the complainant was clearly shaken up and distressed, the account she gave is highly probative. The complainant’s account is an essential pillar of the prosecution case.
We accept that the admission of the hearsay evidence will prejudice the applicant. The relevant prejudice of course is not that it might be believed or is powerful evidence but the unfair prejudice that would be associated with the significant departure from the usual trial practice of adducing direct testimony. The applicant will not be able to cross-examine the complainant and test her account. we also accept that to some degree, the applicant will be denied an opportunity to put a version of events to the complainant from which an alternative hypothesis might emerge. That is especially so given he gave a no comment record of interview.
In our view, the conclusion reached by the judge was well open to her. There are potential inconsistencies in the complainant’s account including for example that in some accounts she only mentioned the intruder trying to put his tongue in her mouth and some different versions that might cast doubt on whether there had been any penetration of a kind that would sustain a conviction for rape. There remains considerable scope to highlight the inconsistencies and differing versions by way of submission. Further, the tribunal of fact will be directed in a manner that will ameliorate the inability to cross-examine. The fact that the evidence will not be able to be challenged in the conventional way will be an important matter in the assessment of the evidence, a matter that will undoubtedly be highlighted by way of direction.
Ground 3 must be rejected.
Conclusion
The application for leave to appeal must be refused.
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