GAGELER CJ, EDELMAN, STEWARD, GLEESON AND BEECH‑JONES JJ
STEVEN MOORE (A PSEUDONYM) APPELLANT
AND
THE KING RESPONDENT
Steven Moore (a pseudonym) v The King
[2024] HCA 30
Date of Hearing: 5 June 2024 Date of Judgment: 14 August 2024
M23/2024
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation
C T Carr SC and J R Murphy with P D Coleridge for the appellant (instructed by Angus Cameron Lawyers)
B F Kissane KC with J P O'Connor for the respondent (instructed by Office of Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Steven Moore (a pseudonym) v The King
Evidence – Interlocutory appeal – Admissibility – Hearsay evidence – Judicial discretion to exclude evidence – Standard of appellate review – Where s 65 of Evidence Act 2008 (Vic) applied in criminal proceeding if person who made previous representation was not available to give evidence about asserted fact – Where appellant due to stand trial for seven offences committed against one complainant – Where complainant passed away in unrelated circumstances – Where respondent notified appellant of intention to adduce evidence of previous representations made by complainant – Where trial judge ruled evidence satisfied s 65 and refused to exclude evidence of representations under s 137 of Evidence Act – Whether Court of Appeal required to apply principles in House v The King (1936) 55 CLR 499 or "correctness" standard in reviewing trial judge's decision under s 137 of Evidence Act – Whether Court of Appeal erred in assessing danger of unfair prejudice that would result from admission of evidence of representations.
Words and phrases – "appellate court", "correctness standard", "discretionary decision", "evidence", "hearsay", "hearsay rule", "interlocutory", "not available", "probative value", "representation", "standard of review", "unfair prejudice".
GAGELER CJ, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ. During pre-trial argument, the appellant unsuccessfully objected to the prosecution adducing evidence of "representations" made by the complainant in the immediate aftermath of her detention and assault allegedly committed by the appellant. The complainant has passed away since she was detained and assaulted.
The trial judge found that the evidence of the representations was admissible under the exception to the "hearsay rule"[1] provided for in s 65 of the Evidence Act 2008 (Vic), and declined to exclude the evidence under s 137 of that Act. The appellant was granted leave to appeal from the trial judge's ruling to the Court of Appeal of the Supreme Court of Victoria, but the Court affirmed the trial judge's (interlocutory) decision that the evidence in question was not excluded under s 137.[2]
The principal issue arising in this appeal is whether, in hearing an interlocutory appeal concerning the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Steven Moore (a pseudonym) v The King [2024] HCA 30
Case
[2024] HCA 30
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an interlocutory appeal by the appellant, who was facing trial for several offences, including assault and false imprisonment, allegedly committed against the complainant. The complainant had since passed away. The respondent sought to adduce evidence of previous representations made by the complainant under section 65 of the *Evidence Act 2008* (Vic), which allows for hearsay evidence in criminal proceedings when the maker of the representation is unavailable. The trial judge had ruled that this evidence satisfied section 65 and refused to exclude it under section 137 of the *Evidence Act*, which permits a judge to exclude evidence if its probative value is outweighed by the danger of unfair prejudice.
The central legal issues before the High Court were whether the Court of Appeal had applied the correct standard of review when assessing the trial judge's decision under section 137, and whether the Court of Appeal had erred in its assessment of the danger of unfair prejudice arising from the admission of the complainant's previous representations. The appellant argued that the Court of Appeal should have applied the principles from *House v The King* (1936) 55 CLR 499, which involves a more deferential approach to discretionary decisions, or alternatively, a "correctness" standard. The appellant also contended that the danger of unfair prejudice, particularly due to the inability to cross-examine the complainant, outweighed the high probative value of the evidence.
The High Court held that the Court of Appeal did not err in its assessment. It was noted that while it is generally assumed juries will follow judicial directions, this assumption is not immutable and is protected by the exclusionary powers under sections 135 and 137 of the *Evidence Act*. In the context of this case, the Court of Appeal's observation that it must be assumed the jury would follow directions to ameliorate the danger of prejudice was soundly based, as the danger of prejudice was considered modest. The High Court concluded that the danger of prejudice to the appellant did not outweigh the probative value of the evidence, and therefore, the trial judge's decision not to exclude the evidence under section 137 was correct.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The appellant accepted that the probative value of the evidence of the representations was high, but contended that its exclusion under s 137 was warranted because that probative value was outweighed by the danger of unfair prejudice resulting from the admission of that evidence, especially such danger of prejudice as would follow from the appellant's inability to cross-examine the complainant. For the reasons that follow, that contention should not be accepted. The trial judge correctly declined to exclude the evidence. The appeal should be dismissed.Background The appellant is due to stand trial in the County Court of Victoria for six offences under the Crimes Act 1958 (Vic), and one offence under the common law, alleged to have been committed against the complainant on 30 and 31 August 2021. The respondent alleges that the appellant entered the complainant's home without her permission at about 6.00 pm on 30 August 2021 and remained there until around 5.00 am on 31 August 2021. During that time, the appellant is alleged to have: intentionally or, in the alternative, recklessly caused injury to the complainant;[5] made a threat to kill her or, in the alternative, to inflict serious injury;[6] prevented her from leaving her unit;[7] and recklessly engaged in conduct that placed her in danger of death or, in the alternative, danger of serious injury by smothering her with his hands on her neck, mouth and nose, causing her to lose consciousness.[8] The appellant has also been charged with attempting to pervert the course of justice as a consequence of a letter he wrote to the complainant from custody on 18 July 2022 asking her to have the charges against him withdrawn and offering to pay her if she did what he asked. [5]Crimes Act 1958 (Vic), s 18.[6]Crimes Act, ss 20, 21. [7]False imprisonment, contrary to common law. [8]Crimes Act, ss 22, 23. The appellant has pleaded not guilty to all the charges other than the charge of attempting to pervert the course of justice. In relation to the contested charges, the appellant admits that he entered the complainant's home on the evening of 30 August 2021, but says he did so with her permission. He admits that once he was inside the complainant's home they had an argument but states that he then left. He denies he assaulted her or was otherwise responsible for her injuries. The complainant passed away in January 2023 in circumstances unrelated to the alleged offending. After her death, the respondent served a notice under s 67 of the Evidence Act notifying its intention to adduce evidence at the appellant's trial of representations made by the complainant under the exception to the hearsay rule[9] provided for in s 65 of the Evidence Act. Section 65 applies to criminal proceedings where the maker of a previous representation is not available to give evidence about an asserted fact. Of present relevance are several representations said to have been made on 31 August 2021 by the complainant: (i) in a telephone call to her mother sometime between 11.30 am and 12.20 pm; (ii) in a triple‑0 call at 12.20 pm; (iii) to a police officer at 1.05 pm as recorded by a body worn camera; (iv) to the same police officer at 1.30 pm, also recorded by a body worn camera; and (v) in a written statement taken by a different police officer and signed by the complainant at around 5.28 pm. [9]Evidence Act, s 59(1).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAGELER CJ, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ
Lastly, the appellant contended that the Court of Appeal erred in considering the effect of any directions to ameliorate the danger of unfair prejudice by observing that "[i]t must be assumed that the jury will follow such judicial directions".[80] It is correct that it is only an "assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges".[81] That assumption is not immutable. The possibility that unfair prejudice in the form of the jury misusing evidence might not be alleviated in some circumstances by directions can be accepted. That danger is protected against by the exercise of the exclusionary powers conferred by ss 135 and 137 of the Evidence Act.[82] However, considered in context, the Court of Appeal did not state to the contrary. Instead, the Court's observation was directed to the circumstances of this case.[83] In this case, the assumption that a jury would follow the suggested directions to alleviate the relatively modest danger of prejudice that was accepted as having arisen from the admission of the evidence of the representations was soundly based. [80]Moore [2023] VSCA 236 at [187].[81]Gilbert v The Queen (2000) 201 CLR 414 at 420 [13], see also at 426 [32].[82]See HML v The Queen (2008) 235 CLR 334 at 385 [116].[83]See R v Georgiou [1999] NSWCCA 125 at [7].Conclusion The danger of prejudice to the appellant from the admission of the evidence of the representations does not outweigh the probative value of that evidence. The trial judge's decision not to exclude the evidence of the representations made by the complainant under s 137 of the Evidence Act was correct. The appeal should be dismissed.
Ratio Decidendi
Legal Principle Established
Established by:
GAGELER CJ, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ