Moore (a pseudonym) v The King

Case [2023] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0117
STEVEN MOORE (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the respondent and the reasons have been prepared in a form which omits identifying details.

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JUDGES: KENNEDY, WALKER and MACAULAY JJA
WHERE HELD: Melbourne
DATE OF HEARING: 1 September 2023 
DATE OF JUDGMENT: 28 September 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 236
JUDGMENT APPEALED FROM: DPP v [Moore] (County Court of Victoria, Judge Gucciardo, 3 July 2023)  

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CRIMINAL LAW – Interlocutory appeal – Admissibility of hearsay evidence – Causing injury intentionally or recklessly, threat to kill or serious injury, false imprisonment, reckless conduct endangering life or serious injury – Complainant now deceased – Previous representations by complainant to mother and police officers – Whether previous representations were made ‘shortly after the asserted fact occurred’ and in circumstances that made them unlikely to be fabrications – Inability to cross-examine complainant caused unfair prejudice – Whether probative value of evidence outweighed by unfair prejudice – Prejudicial effect remediable by jury directions – Leave to appeal granted – Interlocutory decision affirmed.

Evidence Act 2008, ss 65(2)(b)–(c), 137.

Sio v The Queen (2016) 259 CLR 47, Huici v The King [2023] VSCA 5, Azizi v The Queen (2012) 224 A Crim R 325, R v Ambrosoli (2002) 55 NSWLR 603, IMM v The Queen (2016) 257 CLR 300 followed – Williams v The Queen (2000) 119 A Crim R 490, Harris v The Queen (2005) 158 A Crim R 545, R vTarantino [2019] NSWSC 939, R v Doolan [2019] NTSC 53 discussed.

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Counsel
Applicant: Mr C Hooper
Respondent: Mr D Glynn

Solicitors
Applicant: Angus Cameron Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

PART A:. INTRODUCTION

PART B:. RELEVANT BACKGROUND

(1).... The alleged offending

(2).... The aftermath of the alleged offending

(3).... The hearsay evidence in issue

(4).... Additional evidence

PART C:. GROUNDS 1, 2 AND 3: SECTION 65 OF THE EVIDENCE ACT

(1).... The judge’s ruling

(2).... Authorities concerning the operation of s 65

(a)          The temporal requirement in s 65(2)(b) — ‘shortly after’

(b)          The ‘circumstances’ in which the relevant representation was made

(c)          The meaning of ‘fabrication’

(3).... The nature of this Court’s review

(4).... Ground 1

(a)          The applicant’s submissions on ground 1

(b)          Consideration of ground 1

(5).... Ground 2

(a)          The applicant’s submissions on ground 2

(b)          Consideration of ground 2

(i)     Some general observations about ground 2

(ii)    Representations made to the complainant’s mother

(iii)   Representations made to 000

(iv)   The representations made to S/C Stack at neighbour’s home

(v)     The representations made to S/C Stack at the complainant’s home

(vi)   The representations made to S/C Rinderhagen in the formal statement

(c)          Conclusion on ground 2

(6).... Ground 3

(a)          The applicant’s submissions on ground 3

(b)          Consideration of ground 3

PART D:. GROUND 4: SECTION 137…

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AGLC
Moore (a pseudonym) v The King [2023] VSCA 236
Case
[2023] VSCA 236
Decision Date

CaseChat Overview and Summary

In Moore v The King, the appellant, Moore, sought to appeal against an interlocutory decision of the County Court of Victoria, which admitted hearsay evidence of statements made by the deceased complainant in the context of criminal proceedings against him for causing injury intentionally or recklessly, threatening to kill or cause serious injury, false imprisonment, and reckless conduct endangering life or serious injury. The court was tasked with determining whether the hearsay evidence was admissible under section 65 of the Evidence Act 2008, considering the unavailability of the complainant due to her death, and whether the probative value of the evidence outweighed any unfair prejudice to the appellant. The appellant argued that the hearsay evidence should not have been admitted because it did not meet the criteria set out in subsections 65(2)(b) and (c) of the Act. These subsections require that the representation was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or was made in circumstances that make it highly probable that the representation is reliable.

The court examined the circumstances under which the statements were made, including whether they were made spontaneously and in the immediate aftermath of the events in question. The judge had accepted that the statements were made while the complainant was still under the influence of the immediate pressure of the events, and in a context that made it unlikely that they were fabrications. The court also considered whether the inability to cross-examine the complainant caused unfair prejudice to the appellant, and whether this was remediable by jury directions. The court concluded that the probative value of the evidence was not outweighed by the unfair prejudice to the appellant, and that the prejudicial effect could be remediated by appropriate jury directions. Consequently, the court granted leave to appeal but affirmed the interlocutory decision to admit the hearsay evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The various representations are set out in detail later in these reasons. (4)Additional evidence In addition to the hearsay evidence and the evidence concerning the immediate aftermath of the events in question, the applicant also sought to rely on the following evidence:(a)Letters that the complainant sent to the applicant after he had been arrested and remanded in custody. Some of these were undated, but many of them were written and sent in 2022. Before the trial judge the prosecution submitted that the first of these letters was sent on 3 May 2022, which was some eight months after the representations were made.(b)The fact that on 30 November 2022 the complainant failed to appear to give evidence at an examination pursuant to s 198B of the Criminal Procedure Act.(c)Body worn camera footage taken on 4 December 2022 of the service on the complainant of a subpoena to compel her attendance at a s 198B examination to be held on 5 December 2022.(d)The fact that on 5 December 2022 the complainant failed to appear to give evidence at the s 198B examination set down for that day.PART C:GROUNDS 1, 2 AND 3: SECTION 65 OF THE EVIDENCE ACT Proposed grounds 1, 2 and 3[8] concern whether the judge erred in admitting the hearsay evidence pursuant to the exception in s 65. The starting point of the analysis must be pt 3.2 of the Act, which is concerned with hearsay. Section 59(1), in div 1, establishes the hearsay rule, and provides that: 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.[8]We will refer to the proposed grounds of appeal as grounds of appeal, for convenience. Division 2 of pt 3.2 contains a number of exceptions to the hearsay rule. Relevantly, s 65 creates an exception in criminal proceedings if the maker of a representation is not available to give evidence. Section 65 relevantly provides as follows: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—(a)was made under a duty to make that representation or to make representations of that kind; or(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)was—(i)against the interests of the person who made it at the time it was made; and(ii)made in circumstances that make it likely that the representation is reliable.NoteSection 67 imposes notice requirements relating to this subsection. 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;

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In relation to representations made in the written statement taken by S/C Rinderhagen at 5:28 pm on 31 August 2021 at the hospital, the judge said as follows:I accept the evidence of the police officer which elucidates the process and circumstances in which the statement was made, containing 31 representations. The prosecution wishes to rely on each of them. I accept that the first part was by way of a free narrative which was related by the complainant mostly without prompting, but separated out into short sentences by the officer for the purposes of the statement and enumerated. And that from about paragraph 27 onward, the officer asked [the complainant] to either return to some themes already mentioned, which required clarification, bringing the witness back to relevant material when she drifted from the specific aspects being reported, and prompted the representor as to some subjects about which he required a response. I accept his evidence as to [the complainant]’s state, and his conscious endeavour not to lead or suggest any answer by his prompting. And that the latter part of the statement may have returned upon some aspects briefly covered in the first section. I find that the statement was made by [the complainant] while still subject to the proximate pressure of the events described whilst her physical and mental state had not overcome the immediacy of the event and had not waned. Insofar as previous statements or conduct of [the complainant]’s are concerned, I consider them as relevant to the extent that they touch upon the reliability of the circumstances of the making of those previous representations, rather than its facts that show the current assertions to be true, see Huici at paragraphs 69 and 70. But they are capable on reflecting on the unlikelihood of it being a fabrication when made, or the high probability of it being reliable when made. In my view, the representation from those made to [Ms Dwyer], the Triple 0 call, to Senior Constable Stack on body-worn camera, to the statement, form parts of a continual and relatively brief uninterrupted account in terms of both the test of ‘shortly after’ and in terms of the circumstances favourable to the assessment of unlikelihood of fabrication. Unlike in Huici in relation to the complainant’s VARE, the representations to the mother, the Triple 0 and body-worn camera footage were in my view given in a spontaneous context, elicited not in a formal context. In relation to the statement to Rinderhagen, even though the setting was more a formal process to more fully explore and elucidate her account, nevertheless it is my view that it did not deprive the account of the kind of spontaneity which is the hallmark of a representation made shortly after the asserted fact. If, as the defence asserted, [the complainant] was well beyond the immediacy of the event and no longer upon its proximate pressure, this being her ‘third go’ — as expressed by the defence — the process of the statement taking would have been different. This was not a rehearsed, studied, well thought out account which had been reflected and solidified in [the complainant]’s mind as to the story of her assault based on a reflective exercise and on looking back to its details. This remained a qualified attempt to describe an event, the immediacy and attendant confusion, uncertainty and episodic fragmentation of which were still proximate and clearly indicated its proximate nature to the events described. I am satisfied as to its admissibility, both as to 2(b) and 2(c) in relation to each of the representations contained in the notice, that is 1–31 respectively.I note that these representations properly do not include the matters contained in the statement at paragraphs 4, 13, 39 and 44. I have examined each of those 31 representations and am satisfied that the tests have been fulfilled in relation to each, and I so rule.(2)Authorities concerning the operation of s 65