Lewis (a pseudonym) v The Queen
[2018] VSCA 40
•27 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0241
| GILBERT LEWIS (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | FERGUSON CJ, WEINBERG JA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 February 2018 |
| DATE OF JUDGMENT: | 27 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 40 |
| JUDGMENT APPEALED FROM: | DPP v [Lewis (a pseudonym)] [Rulings] (Unreported, County Court of Victoria, Judge Wilmoth, 26 and 30 October 2016, 1, 2, 8, 9 and 10 November 2017) |
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CRIMINAL LAW – Interlocutory Appeal – Application for review of judge’s refusal to certify – Applicant being tried in County Court for domestic violence related charges and attempting to pervert course of justice – Applicant’s partner exempted from obligation to give evidence as witness for prosecution – Reliance by prosecution on statements made to police – Whether hearsay evidence admissible under s 65 of Evidence Act 2008 – Whether applicant’s attempt to conceal ‘hoodie’ constituted incriminating conduct – Whether severance ought to have been granted – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Sutton | Paul Vale Criminal Law |
| For the Crown | Mr C B Boyce SC with Mr D Porceddu | Mr J Cain, Solicitor for Public Prosecutions |
FERGUSON CJ
WEINBERG JA
KIDD AJA:
The applicant is currently on trial in the County Court on a single indictment containing 12 charges. The first nine of these charges arose out of a confrontation that took place on 8 June 2016, at the home of the applicant’s partner.
Charge 1 alleges aggravated burglary. Charges 2 and 7 allege intentionally cause injury while charges 3 and 8 allege recklessly cause injury. These are alternatives to charges 2 and 7. Charge 4 is one of intentionally damaging property. Charge 5 alleges extortion with a threat to kill. Charge 6 is one of false imprisonment. Charge 9 is making a threat to kill.
Charge 10 alleges that between 28 July and 1 September 2016, the applicant persistently contravened a family violence intervention order by contacting SW by phone from prison.
Charge 11 alleges an attempt, between 10 and 23 August 2016, to pervert the course of justice. Charge 12 alleges a further such attempt, on 28 August 2016. Both charges involved the applicant seeking to dissuade SW or other witnesses to the events of 8 June 2016, from giving evidence against him.
On 25 October 2017, the applicant’s trial commenced. There were several weeks of preliminary argument, concluding on 10 November 2017. There are more than 500 pages of transcript thus far, and it seems there is more to come. No jury has yet been empanelled.
In summary, what occurred was this. SW was to be the central witness for the prosecution in relation to charges 1–9. She had made two statements to police concerning the events of the day in question, one dated 8 June 2016 and the other 15 June 2016.
In addition, the prosecution sought to rely upon earlier instances of alleged violence on the part of the applicant towards SW as tendency evidence. SW had made three statements to police regarding those matters, dated 15 December 2015, 19 January 2016 and 28 April 2016.
In addition, there was evidence to be led from a police officer, Constable Nicole Bastin, regarding the April 2016 incident. In that regard, it should be noted that Constable Bastin prepared a statement dated 24 November 2016 setting out some of the matters upon which the prosecution proposed to rely as tendency evidence. The November 2016 statement did not come into existence until after the judge had made rulings regarding the various matters that have given rise to the application before this Court.
During the course of preliminary argument below, SW gave evidence to the effect that she did not wish to be called as a witness for the prosecution in the trial. She had earlier objected to giving evidence for the prosecution at committal, and had, at that stage, been excused from doing so.
On both occasions, SW invoked s 18 of the Evidence Act 2008, which provides, inter alia, that a person who is the de facto of an accused, may object to giving evidence against their partner. If the court finds that there is a likelihood that harm would or might be caused to the person, or the relationship between the person and the accused, if the person gives evidence, then the person must not be required to give the evidence.
The judge, having taken into account the various matters set out in s 18(6) of the Evidence Act in determining whether SW should be compelled to give evidence, ruled in her favour. Accordingly, she will not testify for the prosecution in this trial.
The prosecution, having thereby been deprived of the evidence of its primary witness in relation to charges 1-9, gave notice under s 65 of the Evidence Act that it would seek to tender the two statements that SW made to police in June 2016. Also having been deprived of the tendency evidence upon which it proposed to rely, the prosecution gave notice that it would seek to tender the three statements that SW made in December 2015, and January and April 2016.
The tendency notice is a detailed document setting out three distinct episodes of domestic violence whereby the applicant allegedly assaulted SW, and threatened her with further harm. What was sought to be proved, according to the notice, was that the applicant had a tendency to verbally and physically threaten SW, and to assault her, and that he had a particular state of mind consisting of ‘the verbal and physical threatening of [SW] and the assaulting of her’.
Constable Bastin’s statement asserts that on 28 April 2016, she attended at the scene of a domestic dispute. She described the male as stern and aggressive, and said that he was pushing the female around. Constable Bastin identified the female as SW and recorded her allegation that her partner, the applicant, had abused her and had run from the scene. She described SW as ‘emotional, shaking, crying and scared’. SW had told her that she had been to Court that morning regarding an assault that the applicant had committed upon her. She said that afterwards he had verbally abused her. She added that he had blamed her for having made a complaint to police about his previous violence towards her, and had threatened to kill her children if she went to the police again.
This tendency evidence was said to be relevant to each and every one of the first nine charges in the indictment, including the aggravated burglary, and the extortion with threat to kill.
The provisions governing the admissibility of the statements, notwithstanding their character as hearsay, are ss 65(1) and (2) of the Evidence Act. Relevantly, they are in the following terms:
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 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; or
…
In opposing the prosecution’s application to lead evidence of SW’s five separate statements, counsel for the applicant argued first that SW was not a person who was ‘not available to give evidence about an asserted fact’ within the meaning of s 65(1).
Secondly, counsel submitted that SW’s statements were inadmissible in any event because the requirements of s 65(2) were not met. In particular, it was submitted that although the statements may have been made ‘shortly after’ the asserted facts occurred, they were not made ‘in circumstances’ that made it ‘unlikely that the representation [was] a fabrication’. Furthermore, they were not made in circumstances that made it ‘highly probable that the representation [was] reliable’.[2]
[2]See generally R v Williams [2000] FCA 1868 (‘Williams’), to which her Honour referred in the course of her ruling.
The judge ruled in favour of the prosecution’s application to lead evidence of SW’s statements. Her Honour rejected the submission that SW was not relevantly ‘not available’ to give evidence about the asserted facts. In her opinion, that submission was foreclosed by the decision of this Court in Fletcher v The Queen,[3] where a majority (John Dixon AJA with whom Weinberg JA agreed) held that where a de facto partner had been excused from giving evidence pursuant to s 18 of the Evidence Act, that person was ‘not available’ for the purpose of s 65(1).
[3](2015) 45 VR 634 (‘Fletcher’).
Her Honour recognised that in Fletcher, Priest JA had expressed reservations as to the correctness of that construction of s 65(1). However, as she noted, his
Honour had not dissented. In any event, there was a clear majority view to the contrary.
With regard to the requirements of s 65(2)(b) and (c), the judge said:
[SW]’s first statement was signed at 2.24 pm, some two and a half hours after the alleged offending. It is comprised of six hand-written pages which would have taken some time to complete, and could have commenced quite soon after the police arrived, soon after midday, as Mr Porceddu submitted.
He referred me to the decision in Williams where the court said at paragraph 48:
‘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.’
Then, at paragraph 54, the court dealt with reliability, the requirement in sub-paragraph (c):
‘The statutory test is not whether, in all the circumstances, there is a probability … or a high probability … of reliability, but whether the circumstances in which the representation ‘was … made’ determine that there is such a probability. Following the Conway approach, the trial judge was entitled to consider other available evidence as to all the circumstances in which the statement was made. Nevertheless, whilst it was open to His Honour (sic) to consider the consistency of what was said with other material in the Crown case, this is only part of the inquiry as to whether those circumstances make it probable or highly probable that the representation was reliable.’[4]
[4]DPP v [Lewis (a pseudonym)] [Ruling] (Unreported County Court of Victoria, Judge Wilmoth, 30 October 2017) (citations omitted).
Her Honour continued:
… Mr Sutton submitted that many of the charges on the indictment relied only on the word of [SW], so there was no point in looking at other evidence. In fact there is evidence of the ambulance officer who attended the scene very quickly and evidence of the doctor who saw her later. True it is that there are inconsistencies as between [SW]’s statement concerning her injuries and what was used to inflict them, and the ambulance officer’s summation of the injuries he observed. There are also photographs of the injuries taken at the scene which seem consistent with what the ambulance officer described. To the extent that there are inconsistencies, an appropriate direction to the jury as to the proper use they may make of the statements would overcome the risk of their misuse, in the light of the other evidence.
Mr Sutton submitted that there is no way of knowing how spontaneous the claims in the complainant’s statements were, and that it does not take long to make up a lie. The complainant had time to reattach the door to its hinges and to change her jeans. In an angry and upset state she may have decided to gild the lily and so may be unreliable.
The 000 call was made at 11.51 am. The police arrived just after 12 o’clock. Several neighbours gave accounts of hearing shouting and screaming from the complainant’s house, at various times before midday, of seeing the complainant run from her house very frightened and upset, of seeing a green car which was often at the house, and a man who appeared angry drive away in that car. There is evidence that the car belonged to the father of the accused. There is evidence of clothing being found later at the accused’s home, consistent with the descriptions of the man seen by the neighbours.
Constable Fisher arrived at the house at 12.30 and said he found the complainant looking visibly upset, crying, scared and shaking. His statement includes a careful description of the injuries the complainant showed him, seemingly consistent with her description to him as to how they occurred. She told him the accused had left in a green car which belonged to his father, matching the car later seen by police at the accused’s house.
The totality of the evidence strongly suggests there was no fabrication by the complainant, and that her complaint to the police was spontaneous. For the same reasons it is highly probable that her first statement is reliable. Her second statement, made a week later, is an extension of the first, prompted by the need to take her jeans to the police, which she had forgotten about, and relevant as to her injuries. The informant’s statement provides details of the complainant telling her at the scene what she had been wearing at the time of the attack on her, black leggings and jeans, that she had changed out of those clothes, and she handed the black leggings to the informant. She forgot about the jeans which she had left in the bathroom.
I am satisfied that the complainant’s statements are unlikely to be fabrications, and it is highly probable that they are reliable. I find that they are exceptions to the hearsay rule under s 65.[5]
[5]Ibid.
Counsel had also sought, in the alternative, to have SW’s statements excluded pursuant to ss 135 or 137 of the Evidence Act. He invoked what he termed the Haddara,[6] or general unfairness, discretion. However, he focused primarily upon s 137, and did not develop any separate submission regarding either s 135 or the Haddara discretion.
[6]Haddara v The Queen (2014) 43 VR 53.
The judge noted that the main point made in favour of discretionary exclusion was the applicant’s inability to cross-examine SW as to the truth, or reliability, of her various statements. Her Honour observed, however, that to the extent that there were genuine issues as to SW’s reliability, these could be brought out through the cross-examination of others who were present shortly after the alleged assaults had taken place. As she noted, these included the ambulance officer and doctor who attended SW’s house, as well as at least one neighbour. There were also photographs of the scene, and a tape recording of SW’s 000 call, which would all assist the jury in forming a view as to her reliability.
Her Honour concluded:
I am satisfied that for the reasons already set out, the probative value of the complainant’s statements is high, and outweighs the danger of unfair prejudice to the accused. Any such danger is reduced by reason of other relevant and reliable evidence being available, together with appropriate directions to the jury. The jury will be directed as to the disadvantage to the accused of being unable to cross-examine the complainant. For example, consideration will be given to an appropriate direction under the provisions in the Jury Directions Act 2015 for a warning as to the unreliability of hearsay evidence.
Accordingly I rule that the complainant’s statements may be admitted in evidence.[7]
[7]DPP v [Lewis (a pseudonym)] [Ruling] (Unreported County Court of Victoria, Judge Wilmoth, 30 October 2017) (citation omitted).
A second and separate issue that arose during the course of the preliminary argument concerned the admissibility of what the prosecution submitted was ‘incriminating conduct’ on the part of the applicant.
The ruling regarding that evidence was in the following terms:
The prosecution has filed and served a Notice of Incriminating Conduct, pursuant to s 23(1) of the Jury Directions Act 2015, intending to rely on conduct by the accused said to be incriminating.
The complainant stated in her statement that when the accused entered the house on the morning of 8 June she noticed that he was wearing a black hoodie which had the word ‘Everlast’ across the front in white lettering, and with part of the cuff missing from one of the sleeves.
That point became an issue during the submissions because the hoodie, when produced in court, was seen to have both cuffs missing, appearing to have been cut off. In my view nothing turns on that.
Police attended [the accused’s address] at 3 pm that day and spoke to [him] through a window. While speaking to him Constable Van Oorschott noticed he was wearing a hoodie top matching that described in the above paragraph, except that there was no reference to one or more missing cuffs. Sergeant Mc Gibbon made the same observation, and gave evidence on a voir dire, as Constable Van Oorschott was unavailable at short notice. There had been no prior indication that she would be needed to give evidence at this stage.
Sgt McGibbon said he could see the accused clearly through the window, which he said in cross-examination that he did not think was tinted, and he was standing directly in front of it, between one and two metres away. Despite Sgt McGibbon agreeing in evidence that he paid no particular attention to [the accused’s] clothing at the time, and made no notes about it, I accept his evidence of what he observed.
At about 3.30 pm [the accused] opened the door and police entered the house. he was no longer wearing the Everlast hoodie, but a grey jumper instead. He was placed under arrest. The police secured the property and a search warrant was obtained, with a view to searching for a black-handled screwdriver and a black hoodie.
Whilst searching the premises Constable Allen noticed a Samsung flat screen TV box or carton, behind a sofa. As she inspected the box she noticed a square black bag and underneath it she observed a black item of clothing. This was revealed to be a black hoodie with the word ‘Everlast’ written across the front in white writing. That item of clothing was produced and admitted in evidence, and was observed to have both cuffs missing from the sleeves.
The prosecution case is that [the accused] deliberately concealed the hoodie because he had been wearing it during the commission of the alleged offending and it could be used to identify him as the offender. This could be used by the jury as evidence to prove that he committed the crimes.
The prosecution submission is that this is a piece of circumstantial evidence to be considered together with the other evidence, rather than in isolation, as provided by ss 18 and 20 of the Juries Directions Act.
The defence response was that the prosecution argument is significantly weakened by the fact that the accused did not change his track suit pants, and when he left the house under arrest he took his shoes, apparently the same black and green coloured runners he had been wearing that morning, according to [SW]’s statement. He could have concealed these but did not.
Furthermore, the location of the hoodie in a carton did not amount to concealment, submitted Mr Sutton. The box was in the same area as various other items of clothing, and he had the opportunity to conceal it properly, if that was what he was intending. There was evidence from the photos taken at the time that the box had been moved, which could account for the hoodie being found in the box. On the other hand, Mr Sutton submitted, it could have belonged to [SW], and she could have left it there.
Mr Sutton submitted that [the accused] was not fit to be interviewed that day, and so it is putting it too high to say he deliberately concealed the hoodie.
Mr Sutton also referred to the evidence of one of the neighbours, Tam Vu, who said that at the relevant time she saw a man standing outside a nearby house, wearing a blue jacket, which she described as a medium blue, not very light and not very dark.
I note that she said she only saw his shoulders, and that she made the observation while locked in her car, turning around in her seat, having just called the police. She was terrified by the angry appearance of the man, and the response of [SW], and she lay down on the floor of the car after she had observed him. This being the context of her observations of the colour of his clothing, little weight can be placed upon its accuracy.
During his submissions, Mr Sutton submitted not only that the evidence of the concealment of the hoodie should not be led as evidence of incriminating conduct, but that evidence of where it was found should not be led at all, pursuant to ss 135 and 137 of the Evidence Act. He submitted that it was unfairly prejudicial and might cause or result in undue waste of time in the trial.
Mr Sutton agreed that the finding of the hoodie had probative value but its location would cause unfair prejudice to the accused, given that [SW] could not be cross-examined as to whether it was indeed the jumper he had been wearing that morning, and whether she had put the jumper in the box.
I am not persuaded by the defence submissions. In the context of the whole of the evidence, as required by s 20(1)(b) of the Jury Directions Act, I am satisfied that the evidence of the location of the hoodie amounts to evidence of concealment, reasonably capable of being viewed by the jury as evidence of incriminating conduct. It follows that a direction must be given to the jury in accordance with ss 21 and 22 of the Act.[8]
[8]DPP v [Lewis (a pseudonym)] [Ruling] (Unreported County Court of Victoria, Judge Wilmoth, 1 November 2017).
The third issue that has given rise to this application concerned the judge’s refusal to grant severance of charges 1-9 from the remaining charges, and particularly charge 10 from charges 11 and 12.
The ruling on severance followed a submission on behalf of the applicant that the playing of a series of 21 phone calls made by the applicant from prison to SW, which formed the basis of charges 10, 11 and 12, would be unfairly prejudicial. That was said to be so because SW, though the alleged victim of charges 1-9, was not the ‘victim’ of those latter three charges. Knowledge on the part of the jury that there had been an intervention order granted in the past would be highly prejudicial in respect of the matters giving rise to those first nine charges.
More specifically, her Honour said of the application for severance:
Charge 10 is a charge of persistently contravening a family violence order by making telephone calls to [SW]. Although [the accused] made the calls from prison to her, Mr Sutton submitted that she chose to take the calls, despite the recorded message that she could hang up if she did not wish to receive the call. In that sense, he submitted, she is not a victim.
Charge 11 is a charge of attempting to pervert the course of justice by directing [SW] to change her evidence so as to have a charge against him withdrawn. Mr Sutton submitted that a couple in a relationship is entitled to discuss issues which might lead to an application under s 18 of the Evidence Act, which occurred in this case.
Charge 12 is a further charge of attempting to pervert the course of justice by directing [SW] to approach police witnesses in the matter and ensure they did not attend court to give evidence against him. Mr Sutton submitted that it was not a direction to [SW] but just a request by [the accused] that she tell them ‘it’s best they don’t go [to court]’.[9]
[9]DPP v [Lewis (a pseudonym)] [Ruling] (Unreported County Court of Victoria, Judge Wilmoth, 8 November 2017).
The judge went on to say:
Mr Sutton submitted that the content of the calls and the Prosecution Opening as it stands suggest a possible explanation as to why she is not giving evidence, and this would create unfair prejudice for the accused. There is no way any of this can be tested by cross examination of [SW].
Mr Sutton referred to the considerations for severance set out in TJB, in particular the danger of the jury misusing evidence generally, the unacceptable risk of prejudice because of offences that arouse strong emotions, and the danger of the misuse of propensity evidence.
Mr Sutton referred to the principle as it is set out in KRM v R, where the court said that separate trials should be ordered where there are separate victims with no cross-admissibility and where the joinder of charges creates a risk of prejudice.
Mr Sutton submitted that the risk of prejudice is inherent in the jury hearing all 12 charges together, because they would hear from the phone calls that he was in custody, and that there was an intervention order in existence, suggesting that he had done something to warrant that order being made. The jury would not hear from [SW], and might speculate about that, perhaps adversely to the accused. The words they hear uttered to [SW] in the telephone calls will not be subject to testing by cross-examination of her, and that amounts to unfairness and prejudice.[10]
[10]Ibid (citations omitted).
Her Honour went on to summarise the prosecution’s submission, opposing severance:
In response Mr Porceddu relied on the decision in TJB as to the need for fairness to both parties. He submitted that all the facts asserted are so intrinsically linked in a series of offending that it would be unfair to the prosecution for the trials to be severed. For example, the telephone calls from prison are consequent upon what occurred previously. Any unfairness to the accused can be remedied by direction to the jury.
He elaborated by saying that the 21 calls are all intrinsically linked to each other, because it is the same series of calls that aim to weaken the case against him, by persuading [SW] to not give evidence and to get her to persuade the neighbours not to go to court. The fact that he is on remand at the time is a relevant factor because it provides a motive for engaging in conduct to pervert the course of justice, in that succeeding in weakening the prosecution case would result in him being freed from custody. So strong was this motive that he was prepared to contact [SW] in contravention of the order prohibiting this, knowing it was an offence.
Mr Porceddu submitted that any unfair prejudice to the accused which might flow from the jury knowing he is or was in custody can be dealt with by direction to the jury, as to not drawing any negative inference against him. Similarly, the prosecution can only prosecute their case against him for contravention of the family violence order by reference to the existence of that order. It is prejudice but is not unfair because of the circumstances of its alleged breach. It also provides context for the relationship between [SW] and the accused which existed at the time of the aggravated burglary and the injury charges. Mr Sutton took issue with that proposition, submitting that there was no need for any reference to the existence of the intervention order in a trial dealing with the first nine charges.
Mr Porceddu’s submission was that the probative value of the evidence of the intervention order is that it is evidence of a turbulent relationship between the two and makes it more probable that it was the accused who was the offender in this case, as opposed to any other person.
As to [SW] being unavailable to give evidence, and the unfairness for the accused in being unable to cross-examine her, the jury will need to be told not to draw any inferences adverse to the accused because of her absence, and the content of the telephone calls demonstrate that the couple has sorted out their differences.
Mr Porceddu submitted that any unfairness is reduced significantly because the calls demonstrate that that they have reunited as a couple and have reinstated their relationship. Again, an appropriate warning is required.[11]
[11]Ibid.
The judge next went on to say that severance would not cure the problem so far as the applicant was concerned. She noted:
As to a separate trial for charges 10, 11 and 12, severance would not cure the issue as to the accused being in custody, as the prosecution would lead that evidence to explain what the accused said to [SW] in the telephone conversations. Evidence of the alleged aggravated burglary would also be led in each trial if they were severed, otherwise the charge of attempting to pervert the course of justice would make no sense. All three charges depend on that evidence.
As to the matter of convenience, Mr Sutton raised the possibility of the trial of charges 1 to 9 being unnecessarily long if not severed, because of the potential need for the jury to listen to all the call, which he estimated would take about four hours. Mr Porceddu responded with the information that the recordings last just over an hour. A related concern for Mr Sutton was the likelihood of some significant errors in the transcript of the telephone calls, a matter to be dealt with by careful direction to the jury as to the use of transcripts, with a reminder that the calls themselves are the evidence.
Mr Sutton raised the question of the admissibility of the telephone calls in the absence of [SW]. Mr Porceddu responded that he had sought an admission from the defence in this regard but had received no response, and that neither the calls themselves, nor the question of their admission bear any relevance to the question of severance.[12]
[12]Ibid.
Having then set out the principles governing severance, and acknowledging that ‘convenience’ was not a significant factor in this case, her Honour went on to say:
The far more significant factor is the intrinsic link between the charges. That is a compelling factor in favour of a joint trial in this case, and the risk of prejudice can be satisfactorily dealt with by directions to the jury. Evidence of the existence of the intervention order is unavoidable, and although it is prejudicial because it points to the guilt of the accused, it is not unfair in the sense that it would prejudice the fair trial of the accused.
The content of the telephone calls would make little sense to the jury without the context of the alleged events of the 8th June, that is, charges 1 to 9.
For all these reasons I rule that the application for severance be refused, and a joint trial be held.[13]
[13]Ibid.
The rulings challenged and the proposed grounds of appeal
The various interlocutory decisions that are the subject of this application are described in the following terms:
1.The rulings of Her Honour Judge Wilmoth concerning the admissibility of the statements of [SW] dated 8 June 2016 and 15 June 2016.
2.The rulings of Her Honour regarding the alleged concealment of a hoodie.
3.The rulings of Her Honour regarding severance of the charges.
4.The rulings of Her Honour concerning the admissibility of the statements of [SW] dated 13 December 2015, 19 January 2016 and 28 April 2016 and the statement of Constable Nicole Bastin dated 24 November 2016.
The proposed grounds of appeal are as follows:
Ground 1
Her Honour erred in law in ruling as admissible in the trial the evidence contained in the statements of [SW] dated 8 June 2016, 15 June 2016, 13 December 2015, 19 January 2016 and 28 April 2016 and the statement of Constable Nicole Bastin dated 24 November 2016 and the evidence of the alleged concealment of a hoodie, particularly, in circumstances where the primary witness [SW] was unavailable and could not be cross-examined by the defence.
Ground 2
In the alternative, Her Honour erred in law in ruling as admissible in the trial the evidence contained in the statements of [SW] dated 8 June 2016, 15 June 2016, 13 December 2015, 19 January 2016 and 28 Apri1 2016 and the statement of Constable Nicole Bastin dated 24 November 2016, particularly, in circumstances where the primary witness [SW] was unavailable and could not be cross-examined by the defence.
Ground 3
Her Honour erred in law in refusing to sever Charges 1 to 9 inclusive and order a separate trial in relation to those charges.
Ground 4
Her Honour erred in law in refusing to sever Charge 10 and order a separate trial in relation to that charge.
Ground 5
Her Honour erred in law in refusing to sever Charges 11 and 12 and order a: separate trial in relation to those charges.
Ground·6
That Her Honour’s rulings referred to in the previous Grounds would give rise to a substantial miscarriage of justice if the trial were to proceed, particularly in view of the content of the statement of [SW] dated 1 November 2017.
The principles governing review of refusal to certify
Counsel for the applicant foreshadowed bringing an interlocutory appeal against each of the various rulings to this Court, and asked her Honour to certify. In refusing to do so, she referred to ss 295(3)(a) and (b) of the Criminal Procedure Act 2009, which are in the following terms:
295 Right of appeal against interlocutory decision
…
(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies –
(a) if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and
(b) if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal …
The judge said in relation to s 295(3)(a):
That provision must be interpreted in the light of the recent decision of the Court of Appeal in Harris v R where the Court made an observation about the test for certifying. At paragraph 56 the Court said that:
‘… interlocutory appeals are not suitable vehicles with which to challenge routine evidentiary rulings.’
The Court drew from the decision of Weinberg JA in Paulino where His Honour (sic) analysed the meaning of ‘substantially weaken’ as suggesting:
‘…something not very far short of elimination, rather than merely significant, or important. Before a trial judge certifies in relation to an evidentiary ruling, he or she must be satisfied that if the evidence is ruled inadmissible, its exclusion could realistically be expected to affect the outcome of the trial. In my view, having regard to the strong public policy reasons for discouraging interlocutory appeals in criminal matters in general, and particularly those involving nothing more than points of evidence, nothing short of a test approached with that degree of rigour will suffice.’
In this case different considerations apply according to which ruling is being considered, but I do not find it necessary to unpack the effect of each ruling in order to assess the degree to which exclusion would affect the outcome of the trial. Whatever exclusions would apply, there would still be a trial with a strong prosecution case in relation to at least some of the charges.
I also take into account paragraph 59 of the decision in Harris, where the Court stated that:
‘…an interlocutory appeal cannot succeed unless it is demonstrated that it simply was not open to the judge to reach the decision that he or she did.’
Accordingly I refuse to certify.[14]
[14]DPP v [Lewis (a pseudonym)] [Ruling] (Unreported County Court of Victoria, Judge Wilmoth, 10 November 2017) (citations omitted).
Undaunted by her Honour’s refusal to certify, the applicant has applied under s 296(1) of the Criminal Procedure Act for a review of that decision. Pursuant to s 296(4), that application requires consideration to be given to ss 295(3) and 297. The latter section makes it clear that, on an application for review of a refusal to certify, this Court must have regard to the same matters as would govern an application for leave where certification had been granted.
Section 297 relevantly provides:
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may—
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
In Frazier v The Queen,[15] Maxwell P and Kyrou JA stated:
The requirement for certification is no mere formality. Certification is a statutory precondition of the right to seek leave to appeal. As discussed more fully below, the requirement for certification reflects Parliament’s recognition that the judge who has made the interlocutory ruling will usually be best placed to decide whether the applicable precondition to certification in s 295(3) of the Act — in this case, whether the subject-matter was ‘of sufficient importance to the trial to justify it being determined on interlocutory appeal’ — is satisfied.
Accordingly, on an application to review a refusal to certify, this Court will ordinarily attach considerable weight to the judge’s decision regarding the applicable precondition. In any case, such an application is governed by the principles in House v The King. Accordingly, appellate intervention is only justified if specific error is established or the Court is persuaded that the decision to refuse certification was not reasonably open in the circumstances.[16]
[15][2017] VSCA 370.
[16]Ibid [7]–[8] (citation omitted).
As this Court has repeatedly made clear, the requirement of certification was introduced into the legislation that made provision for interlocutory appeals in criminal matters for the purpose of limiting such appeals to questions of very real significance. The notion of ‘sufficient importance’ in s 295(3)(b) must be approached in accordance with that underlying principle. Accordingly, an application to review a refusal to certify faces a greater hurdle than does an application for leave to appeal where certification has been granted.
Even if certification were to be granted, that would be only the first step in a two-stage process. This Court, in the exercise of its discretion, would still have to consider whether the case warranted the grant of leave to appeal. Its answer to that question would obviously be influenced by the apparent merits of the point or points sought to be argued.
Conclusion
The fact that the Evidence Act specifically contemplates the admissibility of hearsay under s 65, in circumstances where such evidence would almost certainly have been excluded at common law, is perfectly obvious.
The only question to be considered by this Court in response to proposed grounds 1 and 2 (putting to one side the issue of incriminating conduct regarding the ‘hoodie’), is whether, in accordance with House v The King,[17] the applicant has established that it was not reasonably open to the judge to rule that the various statements made by SW were admissible.
[17](1936) 55 CLR 499 (‘House’).
There can be no successful challenge to that ruling, if House principles are applied. The fact that the applicant will be deprived of the opportunity to cross-examine SW is a matter of which the legislature, by enacting s 65, must have been fully cognisant.
Both Fletcher v The Queen[18] and the earlier decision of Beach J in DPP v Nicholls[19] are authority for the proposition that SW’s unwillingness to give evidence for the prosecution meant that she was relevantly ‘not available’ to give such evidence in accordance with s 65(1). The expression ‘not available to give evidence’ is defined in Clause 4 of Pt 2 of the Dictionary at the end of the Evidence Act. It was held in Fletcher that an order under s 18 excusing a person who makes good a claim to exemption from giving evidence for the prosecution met that definition.
[18](2015) 45 VR 634.
[19](2010) 204 A Crim R 306.
As regards s 65(2)(b) and (c), the judge’s reasoning for holding that it was unlikely that SW had fabricated the allegations made in her various statements seems to us compelling. Each of the statements, apart from that of 15 June 2016, was broadly contemporaneous with the events described. The statement of 15 June 2016 largely replicated what was in the statement of 8 June 2016, and the lack of strict contemporaneity with regard to that statement is of no real consequence. The remaining statements were otherwise spontaneous, and by their very nature unlikely to have been fabricated. That is particularly so with regard to the 8 June 2016 statement since there was a body of independent support for the allegations contained therein. There was also independent support for the statement made on 28 April 2016 through the evidence of Constable Bastin.
Much the same can be said of her Honour’s finding that the statements were made in circumstances that made it ‘highly probable’ that the representations contained therein were ‘reliable’. At the very least, those findings were reasonably open, and cannot be overturned if House principles are applied.
In McCartney v The Queen,[20] it was held that an appeal against conviction, arising from a refusal by a trial judge to exclude evidence under s 137 of the Evidence Act did not involve House reasoning. However, the Court in that case, citing KJM v R (No 2),[21] went on to say that the position would be different in relation to an interlocutory appeal where House principles would apply. That conclusion was endorsed by this Court in Bray (a Pseudonym) v The Queen.[22]
[20](2012) 38 VR 1.
[21](2011) 33 VR 11.
[22](2014) 46 VR 623 (‘Bray’).
As regards s 137, there is nothing to suggest that the judge failed to appropriately weigh the various relevant matters to which that section is addressed. It was open to her Honour to conclude that a jury, properly directed, could be made to understand that SW’s assertions were untested by cross-examination, and therefore had to be scrutinised with great care.
At the same time, given the circumstances under which they were made, the allegations had about them a sufficient ring of truth as to overcome a number of the traditional objections to the reception of hearsay evidence. Each statement appears to have been made broadly contemporaneously with the alleged offending, as well as being, as we have said, spontaneous in character. For that reason alone, these statements would be likely to be both truthful and reliable. At the very least, it was reasonably open to the judge to make that finding.
With regard to the statement made on 8 June 2016, it should be noted that its reliability is supported by what SW said during the course of the 000 call. That call itself was initiated by a neighbour, but SW spoke to the operator part way through. She identified the applicant as her ‘ex de facto’, and gave his correct date of birth. She said that he had ripped her door off its hinges, come into the house and told her that she had to pay him for his car. She referred to the fact that this had been going on for 12 months. She said that he was holding a screwdriver, and that he had stabbed her with a knife.
The fact that this call was made very shortly after the alleged assaults might very well have allowed what she said to the operator to have been admitted into evidence under the doctrine of res gestae, at common law. In any event, it provides some support for the reliability of her statement of 8 June 2016. There are no significant inconsistencies between what she said in the course of the 000 call, and what she repeated to police shortly afterwards.
There was also some circumstantial evidence supporting SW’s statement of 8 June 2016. At about the time of the attack upon her, a green motor car was seen outside her home. That car matched the description of one belonging to the applicant’s father.
In addition, during one of the telephone calls between the applicant and SW, on 13 August 2016, the applicant queried why he was facing a charge of aggravated burglary. The two of them then discussed the door that had been ripped off its hinges. SW confirmed that she had reattached the door by the time the police came back to her home.
Subsequently, on 22 August 2016, SW said to the applicant over the phone that she had overreacted on the day in question. He then encouraged her to change her version of what had occurred. He told her to say that she had let him in, and that he had had a key to the door. These statements by the applicant can legitimately be regarded as admissions, particularly given that as matters stand, he raises no positive defence to any of the charges brought, but merely argues that the prosecution must prove its case.
Accordingly, we consider proposed grounds 1 and 2 to be untenable insofar as they deal with the admissibility of SW’s statements as hearsay. The fact that the applicant might conceivably be convicted on the basis of these statements, as well as the supporting evidence, without the opportunity to cross-examine SW, is by no means dispositive of his complaint that the evidence should have been excluded under s 137. A similar argument was rejected by this Court in Bray, as was a submission that a trial conducted in these circumstances would necessarily be unfair, warranting exclusion of the evidence under the Haddara principle.[23]
[23]Haddara v The Queen (2014) 43 VR 53 (‘Haddara’).
There were mechanisms available to ensure a fair trial, including the capacity of the judge to give appropriate and strong directions to the jury regarding the dangers of giving too much weight to untested statements. At the very least, it was open to the judge to view the matter in that way.
During the course of oral argument, it was submitted on behalf of the applicant that the judge below had fallen into specific error by failing to deal with the submission that the hearsay evidence of SW should be excluded under the residual unfairness discretion recognised in Haddara. This submission of specific error cannot be upheld. It is correct to say that the judge did not expressly deal with that discretion, as distinct from s 137. The very basis upon which she concluded that there was no unfair prejudice of a kind that should lead to exclusion under that section would apply with equal force, in the particular circumstances of this case, to the Haddara discretion.
Accordingly, her Honour was correct in her refusal to certify in relation to the statements.
As regards the evidence of incriminating conduct, the short answer to the challenge to the admissibility of that evidence lies in a concession, properly made before the judge below, that this particular ruling, if viewed in isolation, would not justify an interlocutory appeal. Given that such a ruling, if taken on its own, would not warrant an appeal, this Court is fully entitled, in the exercise of its discretion, to refuse to entertain a ground challenging it.
A ruling of this kind can fairly be described as a routine evidentiary matter, typical of the multitude of rulings that are given in trials in this State each and every day. The applicant is given ample protection from the dangers of impermissible reasoning on the part of the jury by the provisions of the Jury Directions Act 2015.
On no view should this Court grant leave to appeal in respect of an evidentiary ruling that was not shown to be of sufficient importance to the trial to warrant an interlocutory appeal. This aspect of proposed ground 1 cannot justify overturning the judge’s refusal to certify on this point.
As regards the ruling on severance, it is difficult to see how a challenge can be mounted to the judge’s refusal to grant that application.
Charge 10, which alleges persistent contravention of a family violence intervention order, through a series of telephone calls made by the applicant from prison to SW, is plainly linked to charges 11 and 12, which involve attempts to pervert the course of justice. The very same calls that give rise to charge 10 also give rise to charges 11 and 12.
Charges 11 and 12 in turn, are relevant to charges 1-9 in two separate ways. When dealing with charges 11 and 12, the jury would have to be made aware of the nature of the primary offence or offences in relation to which the applicant was seeking to have SW change her evidence. When dealing with charges 1–9, the prosecution would be perfectly entitled to rely upon the acts giving rise to charges 11 and 12 as incriminating conduct, or what used to be known as consciousness of guilt. The fact that no notice has thus far been given of an intention to rely upon these calls as incriminating conduct does not mean that this will not occur before a jury is empanelled.
Once it is clear that any jury dealing with charges 1–9, or charges 11 and 12, would have to be made aware of the allegations giving rise to all of the charges laid, and the evidence therefore being cross admissible, there was never any basis upon which to grant severance. There would be no point in doing so.
As regards charge 10, although it is true that this carries with it a degree of prejudice, in the jury being made aware of the existence of an intervention order, there is no unfair prejudice of a kind that would warrant or necessitate severance of that charge. Charges 1–9 include allegations of threats made by the applicant to SW that include specific reference to the existence of some form of court order based upon prior acts of domestic violence on his part. The fact that charge 10 encompasses some additional detail regarding such a court order or orders was not of material significance.
Proposed ground 6, which asserts a potential miscarriage of justice, is speculative and unsuitable for determination on an interlocutory application of this type. We simply do not know how the evidence will come out.
The application for review of the refusal to certify must be dismissed.
There are, however, several additional observations that should be made. The applicant has not sought to challenge her Honour’s ruling that the tendency evidence on which the prosecution seeks to rely satisfies the requirements of ss 97 and 101 of the Evidence Act. Presumably, he regards a submission of that kind as foredoomed to fail, based upon the recent decision of the High Court in Hughes v The Queen.[24]
[24](2017) 344 ALR 187.
It is not for this Court, in the absence of full argument as to the admissibility of the tendency evidence (putting to one side its character as hearsay), to express any concluded views on that question. It is, however, worthy of note that the general evidence of the history of domestic violence, which forms the basis of the tendency notice, may not have quite the probative force in relation to the allegation of the threat to kill and extortion, as it does in relation to the other charges brought against the applicant.
It is something of a mystery as to why, in this case, the prosecution would seek to rely upon tendency evidence, which is itself of a hearsay character, when there is ample evidence, it would seem, to support SW’s account of the events of 8 June 2016. There is no doubt that SW was seriously injured on that day, having been subjected to considerable acts of violence. There is no doubt that she identified the applicant as her attacker, literally within moments of the attack. Her first detailed account to police accorded broadly with what other witnesses observed of the scene. The description of the green car, which can be linked to the applicant via his father, also lends support to SW’s account. The applicant’s incriminating conduct in concealing the ‘hoodie’, which was obviously the very garment that he had been wearing earlier that day, is also itself damning.
It will be a matter for the prosecution whether, in these circumstances, it wishes to pursue the tendency notice. If that evidence were led, the judge would have to give a careful direction as to how it could be used and, more importantly, how it could not be used.
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