Moore (a pseudonym) v The King
[2023] VSCA 236
•28 September 2023
| 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 OF THE EVIDENCE ACT
(1).... The applicant’s submissions on ground 4
(2).... Relevant principles concerning s 137
(3).... The trial judge’s ruling on s 137
(4).... Consideration of ground 4
KENNEDY JA
WALKER JA
MACAULAY JA:
PART A:INTRODUCTION
The applicant faces trial in the County Court for seven charges of violence against the complainant alleged to have been committed on 30 to 31 August 2021. The prosecution alleges that on 30 August 2021, at about 6:00 pm, the applicant entered the complainant’s home without her permission and remained there until around 5:00 am on 31 August 2021, and that during that time he violently caused her injury,[2] threatened to kill her,[3] prevented her from leaving her unit[4] and endangered her life by smothering her with his hands on her neck, mouth and nose, causing her to lose consciousness.[5]
[2]This alleged conduct is the subject of charge 1: cause injury intentionally, contrary to s 18 of the Crimes Act 1958; charge 2 is an alternative charge of cause injury recklessly, contrary to s 18 of the Crimes Act.
[3]This alleged conduct is the subject of charge 3: threat to kill, contrary to s 20 of the Crimes Act; charge 4 is an alternative charge of threat to inflict serious injury, contrary to s 21 of the Crimes Act.
[4]This alleged conduct is the subject of charge 5: false imprisonment, contrary to common law.
[5]This alleged conduct is the subject of charge 6: reckless conduct endangering life, contrary to s 22 of the Crimes Act; charge 7 is an alternative charge of reckless conduct endangering serious injury, contrary to s 23 of the Crimes Act.
The applicant has pleaded not guilty to the charges. The defence case is that the applicant attended at the complainant’s address and entered her home with her permission. Once inside, he and the complainant became involved in an argument. He denies that he assaulted her, and says that he ‘then left the apartment’.
The complainant passed away in January 2023, in circumstances unrelated to the alleged offending. She is thus unable to give evidence at the applicant’s trial in relation to the offending. However, on 31 August 2021 the complainant made various statements to other persons about what had transpired. The prosecution served a notice of intention to rely on hearsay evidence, pursuant to s 67 of the Evidence Act 2008. The evidence is evidence of previous representations made by the complainant to other persons and is said to be admissible by reason of s 65 of the Evidence Act, which permits the admission of hearsay evidence in certain circumstances where the person who made the representation is unavailable to testify.
The applicant argued below that the hearsay evidence was not admissible, on two bases:
(a)first, that it did not fall within the circumstances in which hearsay evidence is admissible pursuant to s 65; and
(b)secondly, that if it was otherwise admissible, it ought to be excluded in the exercise of the judge’s discretion under s 137 of the Evidence Act because its probative value is outweighed by the danger of unfair prejudice to the applicant.
The trial judge ruled that the evidence is admissible under s 65, and declined to refuse to admit the evidence under s 137. His Honour also certified his decision under s 296 of the Criminal Procedure Act2009. The applicant now seeks leave to appeal from the trial judge’s decision.
For the reasons that follow, we would refuse leave to appeal on grounds 1 and 3; grant leave to appeal on grounds 2 and 4; but affirm the interlocutory ruling made by the trial judge on the basis that:
(a)the evidence in question is admissible pursuant to s 65(2)(b) of the Evidence Act; and
(b)it was open to the judge to decide not to exclude the evidence pursuant to s 137 of the Evidence Act.
PART B:RELEVANT BACKGROUND
(1)The alleged offending
The alleged offending, as set out in the amended summary of prosecution opening, may be summarised as follows.
The prosecution alleges that, at about 6:00 pm on Monday 30 August 2021, the applicant came to the complainant’s home. He banged on the front door. The complainant knew it was the applicant at the door. She told him she would not let him in. The complainant was then lying on the couch in her loungeroom, watching television. The applicant emerged at her bedroom door. The complainant was not aware the applicant had entered her house. The applicant had a drink in his hand. He asked her why she had not answered the door. The complainant said that she was not feeling well.
The prosecution alleges that, in the time the applicant was at the complainant’s home, he said to her that she had ‘fucked [him] around, and no one fucks [him] around’. He also said ‘just tell me the truth, are you with that guy?’ The complainant replied that she did not want a relationship with the applicant. The applicant then became violent. He grabbed the complainant by her hair with his right hand. He punched her multiple times to her face with his left fist; she was unsure of how many times she was hit. The complainant ended up dropping to the floor.
The prosecution alleges that the applicant stripped the complainant of her top and shorts that she was wearing, leaving her in her underwear. He made her lay face down on the floor. He stomped on the complainant’s back when she moved. The applicant took a bottle of juice from the kitchen and poured it over the complainant as she lay on the floor. He also filled an empty bottle with water and poured the water on her at times throughout the episode. The complainant became cold. She asked the applicant for a blanket. He refused.
The prosecution alleges that the complainant attempted to run to the front door to escape the applicant, and he struggled with her. He strangled the complainant with one hand around her throat and his other hand over her mouth and nose, so that she had difficulty breathing. When the applicant let go of the complainant, she went back to the lounge and laid on the floor again for fear of the applicant hurting her further.
The prosecution alleges that the applicant picked up a plate in the kitchen. He threw it at the complainant. It broke on her right forearm and caused a laceration. The applicant placed his knee on the back of the complainant’s neck and with both hands, covered her mouth and nose, and then pulled back, causing the complainant to become incontinent and lose consciousness. The applicant let her go when she urinated on the lounge floor.
The prosecution alleges that the applicant picked up a 20–30 cm knife from the kitchen and said to the complainant ‘where the fuck are your serrated knives so you can learn to bleed out?’ He said that he ‘would go from left to right’. He then sat on the couch near the complainant, watching her with the knife in his hand.
The prosecution alleges that the applicant left the complainant’s home at about 5:00 am on Tuesday 31 August 2021. He came back later in the morning, but the complainant did not let him in and he did not re-enter her home.
All of these allegations are based on accounts the complainant gave to others on 31 August 2021.
(2)The aftermath of the alleged offending
Sometime between 10:00 am and 11:30 am, the complainant went to the home of her neighbour, Paula Thomas,[6] who is now deceased. The complainant did not have a telephone in her house, but Ms Thomas did. At about 11:30 am the complainant called her mother, Julie Dwyer.[7] At 12:20 pm the complainant called 000; that call was recorded. At 1:05 pm police and an ambulance attended Ms Thomas’s unit and the complainant was examined by paramedics. There is footage from Senior Constable Stack’s body worn camera that records her interactions with the complainant. Police observed that the complainant had bruising around her left eye and face, back and right arm; appeared to have swelling around her nose; and had a deep open laceration on her right wrist near the wrist bone.
[6]A pseudonym.
[7]A pseudonym.
Police officers went with the complainant to her home, and took photos, examined and searched the scene. They found the complainant’s clothing, some blood-stained tissue paper, blood in the bathroom and a damp patch on the loungeroom floor.
The complainant was then taken to a nearby hospital, where police took photographs of her injuries. She was administered 1 g of paracetamol at 2:30 pm. A police officer, Senior Constable Rinderhagen, took a written statement from the complainant, which was signed at 5:28 pm.
The next day, 1 September 2021, at around 2:15 pm, the complainant was examined by forensic medical practitioner Dr Brook at the Victorian Institute of Forensic Medicine. Further photographs of the complainant’s injuries were taken. Dr Brook took a history from the complainant and provided a medical report setting out her observations of and conclusions about the complainant’s injuries.
The complainant’s medical records reveal that she was discharged from hospital on 8 September 2021, more than a week after being admitted. The discharge records stated that her ‘current medications on discharge’ were as follows:
acamprosate 333 mg oral enteric tablet, 666 mg= 2 tab(s), Oral, TDS
clindamycin 150 mg oral capsule, 3 cap(s), Oral, TDS
clindamycin 150 mg oral capsule, 3 cap(s), Oral, TDS
CLONazepam 2 mg oral tablet, 1 tab(s), Oral, TDS
Endone 5 mg oral tablet, 1 tab(s), Oral, 6 hourly, PRN
ondansetron 4 mg oral tablet, 1 tab (s), Oral, TDS, PRN
paracetamol 500 mg oral tablet, 2 tab(s), Oral, QID, PRN
pregabalin 300 mg oral capsule, 1 cap(s), Oral, BD
(3)The hearsay evidence in issue
The hearsay evidence in issue in this case is set out in the notice of hearsay evidence. In summary, the representations that the prosecution seeks to have admitted under s 65 of the Evidence Act are as follows:
(a)representations made by the complainant to her mother, Ms Dwyer, in the telephone call at around 11:30 am on 31 August 2021;
(b)representations made by the complainant in the 000 call at 12:20 pm on 31 August 2021;
(c)representations made by the complainant to S/C Stack at Ms Thomas’s home, recorded by body worn camera commencing at 1:05 pm on 31 August 2021;
(d)representations made by the complainant to S/C Stack at the complainant’s home, also recorded by body worn camera commencing at 1:30 pm on 31 August 2021; and
(e)representations made by the complainant in the written statement taken by S/C Rinderhagen and signed at 5:28 pm on 31 August 2021.
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.
Note
Section 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;
By reason of s 62 of the Evidence Act, the operation of s 65 is restricted to ‘first hand hearsay’.
Section 142 of the Evidence Act provides that in any proceeding the court is to find that the facts necessary for deciding a question whether evidence should be admitted or not admitted have been proved if the Court is satisfied that the facts have been proved on the balance of probabilities.
(1)The judge’s ruling
As we have already observed, the judge ruled that the hearsay evidence in question was admissible under ss 65(2)(b) and 65(2)(c). In his ruling the judge referred to some of the key authorities on the construction and operation of s 65, including Huici v The King,[9] and observed that ‘it falls on the prosecution … to establish that the representations relied upon were made in circumstances that made it unlikely that they were … a fabrication’.[10] His Honour then set out the prosecution arguments, as follows:
The prosecution in submissions emphasised that the representor was still under the influence of the incident under the proximate pressure of the alleged events. This proximate pressure applied to a series of representations which were said in effect to be a chronological sequence in which all of them fell within the ‘shortly after’ requirement, and when one considered the circumstances of each, on the balance of probabilities, it was established that the representations were unlikely to be a fabrication.
Indeed, the prosecution submits that the representations were able to be viewed within the spectrum of time required under sub-s 2(b), but also satisfied the test of high probability or reliability under sub-s 2(c). Any inconsistencies or divergences were not capable of upending this conclusion. In the first circumstances, the complainant was reporting the occurrence to her mother within a timeframe that of itself reflected the reliability of her report in which she recounted some of the details of what she alleged, significantly consistent with later detailed representations.
The Triple 0 call was a brief series of representations which were spontaneous, in which she answered generally non-leading questions for the purpose of getting medical and police assistance for herself. Similarly, argued the prosecutor, conversations that Senior Constable Stack recorded by body worn camera again asserted that [the applicant] had entered her unit, assaulted her, injured her, and prevented her from leaving until he left.
The prosecution argued the representations were consistent and any divergence were not the kind which would bespeak of concoction. It argued that the complainant was fearful, suffering from injuries from the assaults and therefore under proximate pressure of the event with the body worn footage being recorded as paramedics were examining her injuries before being transported to hospital.
The prosecution submitted the statement taken by Police Officer Rinderhagen at the hospital was sufficiently proximate and in effect proceeded by way of a free narrative first part, demonstrating a spontaneous connection to the events, and a second part after about question 27, based on his evidence, which was then guided by questions and queries from the officer taking the statement.
It took place at 5:28 pm on 31 August and in it, the complainant provided some other details on the course of the night’s events, which spanned some 11 or so hours. In that account, she stated [the applicant] had returned again to the unit in the morning, but was not let in, a detail which she had included in her description during the Triple 0 call, where he is said have turned up twice again, p3 of the call.
[9][2023] VSCA 5 (‘Huici’).
[10]The transcript records the judge as saying ‘in circumstances that made it unlikely that they were not a fabrication’, but we consider that to be either a transcription error or a misstatement by the judge.
The judge recorded the defence submissions in relation to s 65 as follows:
The defence argued the representations were not made shortly after the asserted fact in a temporal sense, and the nature of the circumstances show the representations were not spontaneous or under proximate pressure of the occurrence of the asserted facts. The defence argued that this demonstrates that it cannot be concluded by way of likelihood that the representations were unlikely to be a fabrication, rather the opposite. That is, that the likelihood of concoction was likely.
It pointed to divergences and inconsistencies in the account of the representor that led to that conclusion, as relevant pieces of the representation, such as the use of the knife, the description of the mode of strangulation, the issue as to the awareness of loss of consciousness, the speculation as to the mode of entry into her home, the implausibility of the account as to the timeframe involved, and the actions described, the lack of cogency in her account, and the ‘unaccounted’ time between the events and the first report by her to the next door neighbour and her mother, giving [the complainant] time, it was said, to reflect and fabricate an account.
…
The defence argued that the state of the representor, that is, still in pain and fearful of the accused returning, still anxious and frightened, were relevant but not dominant or determinant factors in looking at the circumstances, because there had been a break ‘in circumstance to separate the representation from the aftermath of the event’.
The defence highlighted this ‘unaccounted time’ as crucial. With the representations having been made in a different location from the event, and the post break demeanour of [the complainant], ‘strongly militating against admissibility’. It was said that she was not flustered in her presentation. Not the behaviour of someone who has just suffered an assault. She did not appear shaken. She was not crying. She was coherent, not requiring intervention and not still suffering the effect and influence of the events she alleged. ‘The immediacy had waned’, argued the defence, using a phrase from Huici’s judgement. Because she was no longer ‘affected by or under the influence of the event’ in counsel’s description, the representation should be excluded.
…
The defence argued the statement made to police, although jurated, was made, ‘at the third go’. [The complainant]’s third attempt to describe the event by which time she had, ‘had practice’. This, it was said, was not a linear narrative, rather, peppered with different accounts. These are all important matters, it was argued, that went to the question of whether or not it could be concluded the representations were likely to be deliberate lie or the likelihood of fabrication.
It was alternatively described as the complainant being removed from the ‘exigencies of the moment’, and therefore no longer a spontaneous narrative. The defence presented a table of inconsistencies in the accounts of [the complainant]. To this list, the defence added and emphasised the lack of fingerprints, DNA, or other forensic evidence, including any analysis of the substances found at the scene, which police interpret as being [the complainant]’s blood, but remain untested.
The injuries upon [the complainant] and their effects had no real weight in this assessment, it was argued, because otherwise, their significance could persist until the injuries healed. To this, the defence adds the impact of the letters from [the complainant] to the accused, produced for the first time by the defence towards the end of submissions.
These are said to go to the sub-s 2(b) assessment, attaching to her credibility, being inconsistent with her representation as to the relationship prior to the assault, demonstrating a desire to continue a relationship of love and affection which together with her non-attendance on two occasions to s 198B proceedings, demonstrates her unwillingness to cooperate, and her generally uncooperative nature, which enhances the probability of fabrication.
…
[T]he defence highlighted what it said was a lacunae in the evidence available as to the complainant’s state at the relevant times, both as to physical and mental health. There appeared to be no mental acuity assessments or blood tests, reminding the court that it is the prosecution, of course, that has the burden of providing a basis to admit the evidence.
The defence further emphasised the evidence of the informant who took the statements from [the complainant] at the hospital to the effect that she ‘had difficulties staying on point’ and became ‘tangential’, requiring some guidance by his questions. There is little to no evidence, argued the defence, on which to form a view as to reliability, much less high probability of its reliability. These arguments were raised in the context of sub-s 2(b) with each of these matters being relevant to the assessment under sub-s 2(c) as well.
After dealing with the question of whether the evidence ought to be excluded in the exercise of the s 137 discretion, the judge turned to admissibility under s 65. His Honour correctly observed that it was necessary to apply s 65 to each representation individually. However, he said that before he did so, he would deal with certain of the defence arguments, and then said as follows:
As to the so-called divergence and inconsistencies in the account, I have taken these into account but do not, in my view — either together or individually — change my view as to the circumstances in which the representations were made.
The use and relevance of the knife, the mode of strangulation or suffocation, the divergence about loss of consciousness in my view proceed from an objective point of view as unremarkable examples of the complainant attempting under the proximate pressure of the events to provide an account for what took place. The impression of the complainant about the mode of entry of the accused may be correct or not. Either way, this thinking does not add to the issue. The defence asserted entry through the window enhances the likelihood of assault having taken place. This also is speculative.
I disagree with such inferences being drawn and I do not agree — as I indicated during the argument — that the events recounted are implausible or lack cogency. The defence relied heavily on the unallocated time before reporting as crucial. In my view, it is consistent with a number of possible scenarios, and in any event, the likely time, between 5–6 hours, is not so extensive under the circumstances as to lead to having to favour a view consistent with that time for fabrication to occur.
There is no inadequacy as to the circumstances. The Triple 0 call, the body‑worn camera footage are audio-visual documentary evidence that elucidate the circumstances quite sufficiently. The state of the representor speaks for itself. I disagree that her demeanour strongly militates against admissibility, because the matters raised by the defence are not — in my view — reliable indicators of such demeanour or true state of mind.
That is, not being flustered, not being shaken, not crying, not being incoherent. Clearly it is not correct to argue that the complainant did not require intervention. She called Triple 0 and went to see [her neighbour] for that very reason at a time, in my view, when she was still clearly affected and influenced by the events. I do not find the dichotomy (it is not — strictly speaking — a ‘taxonomy’ of reflective and responsive answers), which was provided by the defence, a useful schema of analysis. I disagree with the statement being a ‘practised third go’. This runs counter — in my view — to the argument about her being ‘tangential’ and having ‘difficulty staying on point’, during her statement to the police.
I am unpersuaded that the lack of other forensic evidence affects significantly the assessment of the circumstances of the making of the representation and I disagree that the injuries are irrelevant because otherwise ‘their relevance would persist until healed’. The injuries were in existence at the time of the representations.
His Honour then observed that his ‘rejection of defence submissions’ did not conclude the task, because the prosecution bore the onus in relation to the admissibility of the evidence. He then said as follows:
I am satisfied that, having watched the footage of the body-worn camera repeatedly, and read its transcript carefully, together with the Triple 0 voice recording and its transcript on a number of occasions, as well as looking in detail at the police statement, together with the evidence of Sergeant Rinderhagen that the prosecution has satisfied the court on the balance of probabilities of the matters required under s 65(2)(b) and (c) and the reasons propounded by the prosecution, in the endeavour to so demonstrate.
After that general statement of his conclusion, the judge proceeded to deal with the particular representations in groups. His Honour commenced with the five representations the complainant made to her mother, Ms Dwyer, on the phone. Of those, the judge said as follows:
[I]n relation to the first five representations by [the complainant], contained in [Dwyer]’s statement, to her mother, (1), that [the applicant] held her hostage overnight at her unit, I find this representation to have been made shortly after the asserted fact, and in circumstances that make it unlikely that the representation is a fabrication under s 65(2)(b).
I make the same finding in relation to representation (2), that [the applicant] made [the complainant] lie down on the floor in front of the recliner and poured water over her during the course of the night, (3), that he smashed the porcelain bowl over her and slashed her with it, (4), that he stabbed her wrist, (5) that he told her she would bleed out in the bath.
I find these representations to be made in circumstances also that make it highly probable that the representation is reliable under s 65(2)(c).
As to the eight representations made by the complainant in the 000 call, the judge said as follows:
I find each of them were made shortly after the asserted events were said to have occurred and in circumstances which made it unlikely that each was a fabrication.
The complainant was not recounting a historical situation using nonspecific, unclear or uncertain terms. Rather, she was describing what she said were very recent events to an agency she believed could help her obtain police and medical assistance.
I also find each of the eight separate representations to have each been made in circumstances that made each representation highly probable to be reliable under sub-s2(c), (1), that she was bashed during the night, (2), that she could not get out of the house, (3), that [the applicant] held a knife, (4), that [he] hit her over the head with plates, (5), that [he] jumped on her back, (6), that [he] kicked her, (7), that [he] returned twice after the incident, and (8), that she had injuries in her back, head, and sides.
I find that the representations in this brief call were made to request assistance for her current state, that she provided an account of the events alleged under the proximate pressure of them, unprompted by questions, answered with spontaneity and immediacy.
In relation to the representations made to the police officers and paramedics, recorded on S/C Stack’s body worn camera, the judge said as follows:
I find that the representation made to the police officers … recorded by body‑worn camera, were made shortly after the asserted fact and occurred in circumstances that made it unlikely that each representation was a fabrication.
In my view, these were spontaneous representations made under the proximate pressure of the event. The complainant was being examined for her injuries at the time. I do not find that Senior Constable Stack prompted her. Rather, using mainly non-leading questions or prompts. In that scenario she made 22 representations in the first part of the recorded footage.
I will deal with that first. In relation to those 22 representations, I will not recite each of them, I find that representations five, seven, 11, are representations as to her opinion and speculative representations which are not relevant and I am not satisfied therefore that any of them are admissible under 2(b) as to the unlikelihood of fabrication, nor under sub-s 2(c) to have been highly probable. However, as to each of the other representations, I do find they meet the requirements under 2(b) and (c).
In relation to the second part of the recorded footage from the body worn camera, from the time during which the complainant accompanied S/C Stack to her home, where the incident had taken place, the judge observed that the complainant made four representations. He held as follows:
I find that the four therein listed were made shortly after the asserted fact and in circumstances that made it unlikely that each representation is a fabrication and are under sub-s 2(c) made in circumstances that made them highly probable.
So, again, I will not recite the four of them according to the notice. I find that in relation to these two series of representations made by Senior Constable Stack, the complainant was endeavouring to provide information within circumstances and in a timeframe which was entirely founded upon proximate pressure of the events, encompassed by her representation.
Having taken the timeframe involved into account, the concurrency of her representation with being examined medically by a paramedic, still displaying the effects of her many injuries, and located proximately to the location of the place of the alleged assaults, she made them largely in response to non-leading questions without obvious animus or vengeful or retribute tenor towards the accused, but reflective of the currency and immediacy of the events.
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
As the High Court observed in Sio v The Queen, ‘[i]t is no light thing to admit a hearsay statement inculpating an accused’ under s 65.[11] That is because in those circumstances, ‘the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion’.[12] Nonetheless, s 65 provides a clear legislative authority to do so, subject to the conditions there set out.
[11](2016) 259 CLR 47, 65 [60] (French CJ, Bell, Gageler, Keane and Gordon JJ); [2016] HCA 32 (‘Sio’).
[12]Sio (2016) 259 CLR 47, 65 [60] (French CJ, Bell, Gageler, Keane and Gordon JJ); [2016] HCA 32.
In Sio the Court observed that:
[T]he application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.[13]
Thus, in relation to whether the conditions in s 65(2)(b) or s 65(2)(c) are satisfied in the present case, it is necessary to consider each representation individually, and by reference to the circumstances in which each was made; however, some of them can be addressed together where more than one representation was made at the same time to the same person.[14]
(a)The temporal requirement in s 65(2)(b) — ‘shortly after’
[14]Thomas(a pseudonym) v Director of Public Prosecutions [2021] VSCA 269, [22] (Beach, Niall and Walker JJA) (‘Thomas’).
The representations sought to be admitted in evidence in this case were not made at the time of the alleged offending; that is, they were not made ‘when … the asserted fact occurred’. The question is thus whether they were made ‘shortly after the asserted fact occurred’.
The phrase ‘shortly after’ is a phrase of uncertain import; it requires a normative judgment to be made, depending on the circumstances of the case.[15]
[15]R v Mankotia [1998] NSWSC 295, 9 (Sperling J) (‘Mankotia’).
In a decision of the Full Federal Court in Williams v The Queen,[16] and in the decisions of the New South Wales Court of Criminal Appeal in R v Ambrosoli[17] and Harris v The Queen,[18] the respective courts held that the requirement that the statement be made ‘shortly after’ the events in question was designed to ensure that the evidence in question was unlikely to be a fabrication. In Williams, the Full Court of the Federal Court explained as follows:
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:[[19]]
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.[20]
[16](2000) 119 A Crim R 490; [2000] FCA 1868 (‘Williams’).
[17](2002) 55 NSWLR 603; [2002] NSWCCA 386 (‘Ambrosoli’).
[18](2005) 158 A Crim R 545; [2005] NSWCCA 432 (‘Harris’).
[19][1998] NSWSC 295, 10.
[20](2000) 119 A Crim R 490, 502 [47]–[48] (Whitlam, Madgwick and Weinberg JJ); [2000] FCA 1868 (emphasis added).
More recently, in R v Tarantino, Beech-Jones JA, after setting out the above passage from Williams, summarised the courts’ approach to the words ‘shortly after’ as follows:
Consistent with the emphasis upon a statement being made under the proximate pressure of the occurrence of the asserted fact, typically passages of time of seconds or hours have been held to satisfy the test of ‘shortly after’ (see, for example, R v Ian Dacey; R v Lee Dacey [2013] NSWSC 1875 at [19] and R v Afu; R v Caleo (No 15) [2018] NSWSC 245 at [24]). However, periods of many days and months generally have not (see R v Maglovski [2012] NSWSC 1378 at [13], concerning a period of three months; Williams at [49], concerning a period of five days).
It seems that periods of time longer than a day but shorter than a number of days are the most problematic. In Dacey at [50], Button J held that a 30-hour lapse was not sufficient to make the representation ‘shortly after’ the asserted fact. I made a finding to the same effect in R v Bryce (No 1) [2014] NSWSC 495 at [25] to [32] (‘Bryce’). However, in R v Toki (No 3) [2000] NSWSC 999 at [92] (‘Toki’), Howie J held that a delay of one day between the asserted fact and the making of a representation nevertheless meant that the representation was made shortly after the asserted fact.’[21]
[21][2019] NSWSC 939, [25]–[27] (‘Tarantino’).
In addition to the examples collected by Beech-Jones J in Tarantino, the following cases also help illustrate the approach the courts have taken:
(a)Director of Public Prosecutions v Cooling (Ruling No 1): a statement given to police at hospital around 2.5 hours after the incident, and another around 4.5 hours after the incident, were held to have been made ‘spontaneously during (when) or under the approximate pressure (‘shortly after’) the occurrence of the asserted fact’.[22]
(b)Director of Public Prosecutions v Lo (Ruling No 2): the disclosure by a witness of threats made by the accused one week earlier were held to be ‘shortly after’.[23]
(c)DPP v Paulino (Ruling No 1): evidence of a telephone call, made directly after a court hearing, in which the deceased told a friend that the accused had threatened her during the hearing, was held to be ‘shortly after’.[24]
(d)Tasmania v Dolega: statements made to police between 30 minutes to 1 hour of a wounding incident were held to be ‘shortly after’.[25]
[22][2019] VSC 603, [26] (Coghlan JA) (‘Cooling’).
[23][2018] VSC 148, [73] (Jane Dixon J) (‘Lo’).
[24][2017] VSC 343, [117] (Bell J).
[25](2016) 26 Tas R 312, 321 [18] (Brett J); [2016] TASSC 65.
More recently still, this Court explained the meaning of ‘shortly after’ in Huici as follows:[26]
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),[27] 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.
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.
(b)The ‘circumstances’ in which the relevant representation was made
[26][2023] VSCA 5, [60]–[63] (Niall and T Forrest JJA).
[27][2014] NSWSC 495, [29].
Both ss 65(2)(b) and (c) require the court to have regard to the ‘circumstances’ in which the relevant representation was made. As the High Court observed in Sio, circumstances that have been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule include those that ‘are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed’;[28] or in other words, circumstances that of themselves present negative motive and opportunity to lie.[29]
[28](2016) 259 CLR 47, 66 [64] (discussing s 65(2)(d)(ii)).
[29]DPP v Madina [2019] VSCA 73, [59] (Priest AP and T Forrest JA) (‘Madina’).
The focus of attention of s 65 is directed, not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. There has been some divergence in the authorities as to what those objective circumstances include.[30] In particular, there has been some divergence as to whether, in considering the circumstances in which a representation was made, the court may consider representations made by the person on a different occasion, and potentially to a different person.
[30]See discussion in DPP v Paulino (Ruling No 1) [2017] VSC 343, [25]–[31] (Bell J). See also Azizi v The Queen (2012) 224 A Crim R 325, 337 [50] (Bongiorno JA, Buchanan JA agreeing at [1], Hollingworth AJA agreeing at [109]); [2012] VSCA 205 (‘Azizi’).
In Azizi, this Court approved the analysis adopted by Mason P in Ambrosoli.[31] In that case Mason P said that events subsequent to the representation being made might throw light upon the circumstances of the making of that representation.[32] Mason P’s judgment was approved by the High Court in Sio.[33] The Court there explained what some of the ‘circumstances’ in a given case might include:
When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2)(d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character.[34]
Although the High Court was there concerned with s 65(2)(d)(ii), we consider that these remarks are equally apt for ss 65(2)(b) and 65(2)(c).
[31]Azizi (2012) 224 A Crim R 325, 337 [50] (Bongiorno JA, Buchanan JA agreeing at [1], Hollingworth AJA agreeing at [109]); [2012] VSCA 205 quoting Ambrosoli (2002) 55 NSWLR 603, 616 [34]–[37]; [2002] NSWCCA 386.
[32]Ambrosoli (2002) 55 NSWLR 603, 616 [36]–[37] (Mason P, Hulme J agreeing at [76], Simpson J agreeing at [77]); [2002] NSWCCA 386.
[33](2016) 259 CLR 47, 67–8 [69]–[70] (French CJ, Bell, Gageler, Keane and Gordon JJ); [2016] HCA 32.
[34]Sio (2016) 259 CLR 47, 68 [71] (French CJ, Bell, Gageler, Keane and Gordon JJ); [2016] HCA 32 (emphasis added).
Thus the ‘circumstances’ to be considered in the application of those sections can include previous, or subsequent, statements or conduct of the person who made the representation. However, the other representations must ‘form part of the context in which the representation in question was made’. The better view therefore appears to be that the qualification requires that the other representations have a degree of contemporaneity with the representation in question; it would not permit consideration of later representations made weeks or months after the representation in issue. Furthermore, other representations are permissibly considered to the extent to which they reflect on the unlikelihood of fabrication in the circumstances of the making of the particular hearsay representation,[35] but not if they do no more than tend to address the asserted fact.[36]
(c)The meaning of ‘fabrication’
[35]DPP vAsling(Ruling No 2) [2017] VSC 38, [22] (Kaye JA). See also Lo [2018] VSC 148, [68] (Jane Dixon J).
[36]Ambrosoli (2002) 55 NSWLR 603, 616 [36] (Mason P, Hulme J agreeing at [76], Simpson J agreeing at [77]); [2002] NSWCCA 386; Thomas [2021] VSCA 269, [30] (Beach, Niall and Walker JJA).
There had, historically, been some divergence between courts as to whether fabrication meant only a deliberate concoction, or whether it also included inadvertent misstatements.[37] However, as this Court observed in Huici that it is now ‘well established that fabrication means a deliberate concoction’.[38]
(3)The nature of this Court’s review
[37]By way of example, contrast R v Kuzmanovic [2005] NSWSC 771, [13] (Miles AJ) with DPP v Tran (Ruling No 2) [2019] VSC 824, [25] (Bell J).
[38]Huici [2023] VSCA 5, [57] (Niall and T Forrest JJA). See also Thomas [2021] VSCA 269, [25] (Beach, Niall and Walker JJA).
This Court has previously observed that, on an interlocutory appeal, House v The King[39] principles apply to admissibility decisions of this kind.[40] Thus the question is whether the judge acted upon a wrong principle, took into account an irrelevant consideration, failed to take into account some material consideration, or made a mistake of fact. If a specific error of that kind is demonstrated, then the judge’s exercise of discretion should be reviewed and this Court may exercise its own discretion in substitution for that of the judge, if it has the materials for doing so. In some cases, it may not appear how the primary judge has reached the result embodied in his order; however, if the order is unreasonable or plainly unjust, this Court may infer that in some way there has been a failure properly to exercise the discretion in question. In such a case the exercise of the discretion is reviewed on the ground that a substantial wrong has occurred.[41] In the context of interlocutory decisions of this kind, that latter category of error is often described as the decision not being open to the judge to reach the evaluative conclusion that he or she reached.[42]
[39](1936) 55 CLR 499; [1936] HCA 40.
[40]Lewis (a pseudonym) v The Queen [2018] VSCA 40, [45], [50] (Ferguson CJ, Weinberg JA, Kidd AJA) (‘Lewis’); Thomas [2021] VSCA 269, [9] (Beach, Niall and Walker JJA).
[41]House v The King (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
[42]Bray (a pseudonym) v The Queen (2014) 46 VR 623, 638 [63] (Santamaria, Maxwell P agreeing at [1], Weinberg J agreeing at [2]); [2014] VSCA 276, quoting CV v DPP [2014] VSCA 58, [17].
In the present case, the applicant alleges three distinct errors involving the judge acting on a wrong principle. In addition, ground 2 can be understood as, and was argued as if it was, directed to whether it was open to the judge to be satisfied of the conditions required for the admission of the hearsay evidence under ss 65(2)(b) and/or 65(2)(c).
(4)Ground 1
Ground 1 is as follows:
His Honour reversed the onus of proof in respect of admissibility under s 65(2) in that his ruling was based on a rejection of the submissions made on behalf of the applicant rather than an acceptance of the submissions by the respondent.
(a)The applicant’s submissions on ground 1
In his written submissions the applicant contended as follows:
His Honour erroneously determined the question of whether the representations were made under the proximate pressure of the asserted fact by asking himself whether the matters relied on by Applicant removed the complainant from the proximate pressure of the alleged events, rather than whether the Respondent had satisfied him of the opposite. However, the Respondent’s submissions were not capable of sustaining such a finding.
His Honour reversed the onus of proof by finding that the matters relied on by Applicant were not capable of affecting the Court’s assessment of the circumstances of making of the previous representations. The mere absence of circumstances pointing to the likelihood of fabrication or unreliability is insufficient. His Honour … erroneously accepted a submission by the Respondent to that effect despite making general statements to the contrary in the course of argument.
His Honour ruled in the evidence of [Ms Dwyer] and [the] 000 recording without giving reasons for his decision. In so doing, his Honour appears to have based his decision solely on a rejection of the arguments raised by Applicant.
In oral argument the applicant submitted that the judge had done no more than reject the applicant’s submissions concerning the circumstances in which the representations were made, and that his Honour had failed to find positive circumstances that were capable of satisfying him that either:
(a)the representations were unlikely to be fabrications; or
(b)it was highly probable that they were reliable.
Thus, the applicant submitted, the judge had reversed the burden of proof.
(b)Consideration of ground 1
Ground 1 may be disposed of swiftly. It is not, and cannot be, an error for a judge to consider and reject — and explain his rejection of — the arguments made by a defendant in a criminal proceeding. To do so does not reverse the onus of proof.
To the extent that this ground is to be understood as a complaint that the judge provided no positive reasons for concluding that the representations satisfied ss 65(2)(b) and 65(2)(c) — that is, any reasons other than his Honour’s rejection of the applicant’s arguments — we do not consider that submission can be made good.
First, after dealing with the applicant’s submissions, the judge observed that his ‘rejection of defence submissions does not … conclude the task, because it is the prosecution who bears the onus in relation to admissions in question’.[43]
[43]See [32] above.
Secondly, in relation to the representations made to 000 and the representations made to the two police officers, the judge gave positive reasons why he was satisfied that all of these representations satisfied the requirements of ss 65(2)(b) and 65(2)(c). These are set out in the extracts from his Honour’s ruling at paragraphs [34]–[37] above. This ground does not challenge the adequacy of those reasons, or contend that they were not open.
Thirdly, while we accept that the judge did not state expressly his positive reasons for concluding that the representations the complainant made to her mother satisfied the requirements of ss 65(2)(b) and 65(2)(c), that does not reveal error. That is because immediately before addressing these representations his Honour had stated, in effect, that he accepted the ‘reasons propounded by the prosecution’ as to why the representations were admissible under ss 65(2)(b) and 65(2)(c).[44] His Honour had set out those submissions earlier (and they are extracted above). Thus at this point in his reasons the judge is to be understood as adopting by reference the submissions he had earlier summarised. Those submissions included that the complainant was still under the proximate pressure of the events she had recounted, that she was still suffering from the injuries she had suffered, that these representations were consistent with her later representations and that the complainant was reporting the events to her mother.[45]
[44]See [32] above.
[45]See [29] above.
Ground 1 thus has no prospects of success. We would refuse leave to appeal on this ground.
(5)Ground 2
Ground 2 is as follows:
His Honour erred in finding that there was sufficient evidence put before him by the Respondent to enable him to be satisfied on the balance of probabilities as to the maters set out in s 65(2).
Ground 2 is framed in terms of a finding by the judge that there was sufficient evidence adduced by the prosecution to enable the judge to be satisfied of the matters under s 65(2). As noted above, this ground was to some extent addressed as turning on whether the judge’s conclusion was open to him on the evidence. We will thus address it in that manner.
(a)The applicant’s submissions on ground 2
The applicant’s written submissions relating to ground 2 were relevantly as follows:
The complainant’s police statement was a rehearsal of her earlier representations and as such was not made under the proximate pressure of the asserted fact. His Honour erred in ruling otherwise because this contradicted a previous characterisation by him of that evidence.
His Honour erroneously found that he was able to make a determination of the objective circumstances in which the previous representations were made despite the absence of evidence in respect of any drugs or medications affecting the complainant going to her mental acuity.
…
His Honour erroneously found that the representations in the body worn camera footage found that the representations were spontaneous and under proximate pressure of the asserted fact.
His Honour erroneously found that the complainant’s account was within a timeframe wherein she was still under the proximate pressure of the asserted fact because this is inconsistent with the evidence.
His Honour also erroneously held that the lack of DNA or other forensic evidence were not relevant circumstances for the purpose of the assessment under s 65(2), while giving undue weight to impacts of the complainant’s injuries.
These submissions did not clearly relate to the ground of appeal as formulated, however they were developed in oral argument by reference to two alternative, but related, pathways:
(a)first that there was insufficient evidence for the judge to be satisfied that the conditions in ss 65(2)(b) and/or 65(2)(c) were met; and
(b)secondly, that it was not open for the judge to be satisfied that the conditions in ss 65(2)(b) and/or 65(2)(c) were met.
In oral argument, the applicant placed significant weight on the ‘missing time’ between the asserted facts (ie the conclusion of the assault and false imprisonment) and the making of the representations. He submitted that, in order for there to be an evaluation of whether the complainant was under the ‘proximate pressure’ of the events at the time she made the representations, the court needed to ‘have an understanding of what happened in that time’. He submitted that the complainant ‘had time to rehearse and consider what she was going to tell the police’. He submitted that the time frame of five or six hours ‘did not matter’; rather, what matters is whether the court has ‘sufficient information about what occurred in that time to make a positive assessment of whether the complainant remained under the proximate pressure of the asserted fact’.
The applicant also argued that the circumstances to which the court could have regard in considering whether one or both of ss 65(2)(b) and 65(2)(c) were satisfied included the letters she wrote to the applicant, her failure to attend the two s 198B examinations and the body worn camera footage of the service on her of a subpoena in relation to one of those examinations.
Finally, in oral argument the applicant relied upon the question of whether any drugs or medications may have affected the complainant’s reliability for the purposes of the assessment required by s 62(2)(c). However, he disavowed reliance on this issue in relation to s 62(2)(b).
(b)Consideration of ground 2
In order to assess this ground of appeal it is necessary to deal separately with ss 65(2)(b) and 65(2)(c) because they pose different tests for admissibility.
In so far as s 65(2)(b) is concerned, there are two questions:
(a)Were the various representations made ‘shortly after’ the asserted facts occurred?
(b)And were the various representations made in circumstances that made it unlikely that the representations were fabrications?
The first question, understood in light of the authorities discussed above, required the judge to find facts concerning:
(a)the time and place at which the representations were made;
(b)the time and place at which the asserted facts occurred (or were said to have occurred); and
(c)whether the complainant was under the proximate pressure of the events in question,
so as to reach a conclusion on whether, in the circumstances, the representations were properly characterised as being ‘shortly after’ the relevant events.
The second question required the judge to make factual findings about the circumstances in which the representations were made so as to determine whether those circumstances were such that the representations were unlikely to be a deliberate concoction.
Thus both these questions require attention to the circumstances in which the representations were made, although with a slightly different lens for each question.
(i)Some general observations about ground 2
It is necessary, in light of the High Court’s remarks in Sio, and the later authorities, to consider and answer these questions separately for the different representations made to different people, although it is permissible to group some of the representations together.[46] However, it is appropriate to make some general observations about the circumstances that occurred immediately prior to the making of the first set of representations, namely those the complainant made to her mother on the telephone.
[46]Prasad [2020] NSWCCA 349, [89], [94] (MacFarlan JA, Wilson J agreeing at [158], N Adams J at [196]).
First, there is no dispute that the complainant was injured prior to making the several sets of representations, and that many of those injuries had not healed by the time she came to make the various representations.[47] The applicant, however, submitted that the injuries observed were not serious. On the evidence before the Court, this submission has no merit. The complainant’s injuries were observed by police officers and paramedics and documented in photographs taken at the hospital. They included widespread bruising and abrasions to her face, neck, chest, back and limbs. They were sufficiently serious to warrant the complainant remaining in hospital for more than a week after the event.
[47]Dr Brooks’ report recorded some injuries for which there was evidence of healing, but this was a small minority of the many injuries observed.
There is also no dispute that the complainant’s injuries resulted from an assault. In that regard, we note that Dr Brook’s opinion is that the widespread bruising represented multiple episodes of blunt trauma (eg punch, kick, knock or push), and that the degree of combined injuries over the plane of the body (ie front, sides, back) suggest that they are more likely to be assaultive, rather than purely accidental. Dr Brooks also opined that, although she could not accurately determine the age of the injuries, they could have occurred within the timeframe of the alleged incident. The complainant’s injuries form an important part of the circumstances in which she made the representations and suggest that she had endured a ‘traumatic or unusual event.’
Secondly, it is apparent from the recorded 000 call and from the representations made to S/C Stack that the complainant believed that the applicant had returned to her home after the assault (although he had not entered). As discussed further below, this affects the proper characterisation of the time that had elapsed between the facts asserted in the representations and the making of the representations.
Thirdly, it is apparent from the conversation the complainant had with S/C Stack and the paramedics that she (a) used to drink heavily; (b) she had recently been in ‘detox’ and was not currently drinking; and (c) she was ‘currently’ on medication, namely Lyrica and clonazepam.[48] It is possible that these matters could have affected her ability to recall accurately the events she was recounting, although there was no evidence of how recently she had taken that medication, what the side effects of the two medications are, or whether the complainant had in fact experienced any side effects.
[48]The evidence reveals that the complainant was on medication for epilepsy and anxiety.
As noted above, the applicant did not rely on the possible presence of drugs or alcohol in the complainant’s system as relevant to the assessment of whether s 65(2)(b) was satisfied. That is, he did not assert that those issues bore upon the question of unlikelihood of fabrication. These matters were relied upon only in relation to s 65(2)(c). It is thus unnecessary to deal with that aspect of the applicant’s argument in assessing whether it was open for the judge to be satisfied that the conditions in s 65(2)(b) were met.
Separately, it is appropriate to deal at this point with the applicant’s submission that:
(a)the letters written by the complainant to the applicant after the alleged offending;
(b)the complainant’s failure to attend at two s 198B examinations in 2022; and
(c)the body worn camera footage of service on her of a subpoena
are relevant to an assessment of whether s 65(2) is satisfied.
In our view none of that evidence is relevant to an assessment of the circumstances in which the representations were made, for the purposes of assessing whether the evidence is admissible under either s 65(2)(b) or s 65(2)(c).
In so far as the letters and the body worn camera footage is concerned, these constitute representations by the complainant other than the representations sought to be adduced under s 65. As explained above, while in some cases representations other than the representation in issue may be relevant to an assessment of the circumstances in which the representation in issue was made, those other representations should be part of the ‘context’ in which the representation in issue was made. We do not consider that the complainant’s letters to the applicant, all of which were written after the applicant had been arrested, and most of which were written many months later, constitute part of the context in which the representations in issue were made. The same conclusion applies to the representations in the body worn camera footage dated 4 December 2022. Nor does the fact that the complainant failed to appear at two s 198B examinations constitute part of the circumstances in which the representations in issue were made. We have thus disregarded all this additional evidence in the analysis that follows. For completeness, we also observe that in our opinion none of that evidence sheds any light on whether the representations in issue are unlikely to be fabrications in any event.
We also note that in the written submissions the applicant referred to the absence of any DNA or other forensic evidence as a circumstance relevant to s 65(2). That submission was not developed in oral argument. For completeness, we observe that it has no merit.
Finally, it is necessary to observe that, in light of the manner in which the applicant’s argument was developed at the hearing, it became apparent that there is no dispute that:
(a)the applicant was at the complainant’s house at some time on 30 August 2021; and
(b)that the complainant was assaulted by someone on 30 and/or 31 August 2021 and had serious injuries as a result of that assault.
However, there is a dispute about:
(a)the identity of the offender — that is, the allegation that it was the applicant who assaulted the complainant is in dispute; and
(b)the time at which the assault occurred and the time at which the offender left the complainant’s home.
As a consequence, the applicant’s counsel indicated that no objection was maintained in relation to the admission of representations that went to the fact of the assault, but that objection was maintained in relation to the admission of representations relevant to the identity of the offender and/or the timing of the events. In that regard, the relevant facts in issue to which the representations the subject of objection appeared to be relevant were:
(a)the identity of the person who assaulted the complainant; and
(b)the time at which the events the complainant asserted had occurred had commenced and ended.
(ii)Representations made to the complainant’s mother
The first set of representations in issue were those the complainant was said to have made to her mother on the phone on 31 August 2021, in a phone call from Ms Thomas’s home, which was the unit next door to the complainant’s own home. The representations were set out in the hearsay notice as follows:
1. [The applicant] held her hostage overnight at her unit.
2.He made her lie down on the floor in front of the recliner and poured water over her all night.
3. He smashed a porcelain bowl over her and slashed her with it.
4. He stabbed her wrist.
5. He told her she would bleed out in the bath.
We note that each of these representations plainly identified the applicant as the offender, thus all were the subject of objection.
In the hearsay notice, and in the mother’s written statement to police, these representations were said to have been made at 10:00 am. However, before the trial judge the prosecution’s case was that the phone call from the complainant to her mother was said to have occurred between 11:30 am and 12:20 pm. This was around 6.5 to 7.5 hours after the time at which the applicant was alleged to have left the complainant’s home; however, less time than that had elapsed between the phone call to the complainant’s mother and the asserted fact of the applicant’s return to the premises. It is not possible to be precise about the time that had elapsed between those events.
The complainant, lacking a telephone, had gone to her neighbour, Ms Thomas, for help. She had then telephoned her mother to tell her what had happened. She was seriously injured and scared at the time, having been physically assaulted. She was at a location proximate to the location of the offending, namely the place to which she had gone for help which was next door to her own home. That evidence is sufficient to permit the conclusion that the representations she made to her mother were made ‘shortly after’ the facts to which the representations related. A period of less than 6.5 hours falls comfortably within the kinds of time periods that have been accepted as being ‘shortly after’ in other cases and, given the continued presence of her injuries, and her mental state, it can be concluded that at the time she made the phone call to her mother, she was still under the ‘proximate pressure’ of the events.
We would also conclude that the circumstances in which these representations were made were such that the complainant was unlikely to fabricate her account.
First, we observe that the complainant did not fabricate the fact that she had been ‘bashed’, which supports the proposition that her account as a whole was unlikely to be fabricated. The applicant accepted that this was a relevant factor. She was calling her mother for help after having been violently assaulted, a circumstance that suggests she was unlikely to be lying. There is no evidence to suggest that, in a phone call to her mother, she would truthfully describe what had occurred, but lie about the identity of the person who assaulted her. Finally, her account to her mother was broadly consistent with statements she made later, to others.
The applicant placed considerable emphasis on the time period between the asserted facts and the making of the representations. He submitted that it was necessary for the court to be informed of what occurred in that gap, in order to be positively satisfied of the matters set out in s 65(2)(b). We reject that submission. The question for the court is whether the time period in question is ‘shortly after’, and whether the circumstances in which the representations were made were such that the representations were unlikely to be fabrications. While an account of what occurred in the time period between the asserted fact and the representations will be relevant to that assessment, it is not always necessary for the court to have such an account.
In this case, we accept that, in an abstract sense, it might be said that a period of somewhat less than 6.5 hours is sufficient for a person to concoct a story. However, in the present case the circumstances were such that in our view there is no real likelihood that that occurred. The ‘gap’ occurred immediately after the infliction of serious injuries all over the complainant’s body. It is unsurprising that she may have taken some time to recover from the immediacy of those injuries before seeking assistance. Furthermore, she thought that the offender had returned to her home and reported being scared, which supports a conclusion that she remained under the ‘proximate pressure’, or continuing influence, of the events in question and provides a further explanation for why she did not leave her home sooner to seek help.
The applicant also submitted that the complainant had had time, in this ‘gap’, to reflect, rehearse and consider what she was going to tell the police. As part of that argument, he submitted that ‘she plainly intended to call the police when she attended [Ms Thomas]’s home’. That second proposition cannot be accepted. First, when she got to Ms Thomas’s home, the complainant called her mother, not the police. Second, when she called 000, she asked for an ambulance, not for the police. It was the 000 operator who stated that police would be dispatched. As to the first proposition, it is true that the time that passed between the asserted facts and the representations was such that there was an opportunity for the complainant to decide what she would tell the police, but that does not require the conclusion that the test in s 65(2)(c) is not met. Whenever the time period in issue is longer than an hour or so, such an opportunity may be said to exist. What is important is all of the circumstances attending the making of the representations; and, for the reasons given above, the circumstances in this case were such as to justify the conclusion that the representations the complainant made to her mother were unlikely to be fabrications.
For the above reasons, we consider that it was well open to the trial judge to find that s 65(2)(b) is satisfied in relation to the first set of representations.
In light of that conclusion it is not necessary to consider whether it was also open for the judge to find that s 65(2)(c) is also satisfied in relation to the representations the complainant made to her mother.
(iii)Representations made to 000
The second set of representations were those the complainant made to 000 on 31 August 2021 in a recorded telephone call, set out in the hearsay notice as follows:
1. She [ie the complainant] was bashed during the night.
2. She could not get out of the house.
3. The offender had a knife.
4. The offender hit her over the head with plates.
5. The offender jumped on her back.
6. The offender kicked her.
7. The offender returned twice after the incident.
8. She had injuries to her back, head, and sides.
We note that none of these representations identified the applicant as the offender, however representation 1 was relevant to the timing of the assault. Thus, as we understood the applicant’s argument, only representation 1 was the subject of objection.
In the hearsay notice these representations were said to have been made between 10:00 am and 12:30 pm on 31 August 2021. However, in the prosecution pre-trial submissions the phone call from the complainant to 000 was said to have occurred at 12:20 pm. This was around 7.5 hours after the applicant was alleged to have left the complainant’s home, but less time than that had elapsed between the making of these representations and the asserted fact that the applicant had returned to the premises. Again, it is not possible to be precise about the elapsed time.
Again we observe that the complainant was seriously injured and scared at the time she made the call to 000, having been physically assaulted. As with the earlier representations to her mother, she was at a location proximate to the location of the offending, namely the place to which she had gone for help which was next door to her own home. That evidence is sufficient to permit the conclusion that the representations she made to the 000 operator were made ‘shortly after’ the facts to which the representations related. Again, a period of less than 7.5 hours falls comfortably within the kinds of time periods that have been accepted as being ‘shortly after’ in other cases and, given the continued presence of her injuries, and her mental state, it can be concluded that at the time she made the phone call to 000, she was still under the ‘proximate pressure’ of the events in question.
In light of the manner in which the arguments were put at the hearing, the applicant’s objection to admissibility was maintained in relation to all of the representations in the written statement taken by S/C Rinderhagen.
The hearsay notice recorded the circumstances of these representations as follows:
[The complainant] met SC Rinderhagen at [an address in Ringwood]. She made a written statement. In the statement she detailed the events of the prolonged assault on her by [the applicant] on the evening of 30/8/21 and morning of 31/8/21 at her unit.
However, in the prosecution pre-trial submissions the written statement was said to have been taken at the hospital to which the complainant had been taken by ambulance. That was confirmed by S/C Rinderhagen in his oral evidence at the pre-trial hearing.
The fifth set of representations were made orally to S/C Rinderhagen in the course of him taking a handwritten statement. S/C Rinderhagen explained the process of taking the statement from the complainant as follows:
[PROSECUTION COUNSEL]: How was the statement taken from her in terms of were there questions and answers or how did you take it?---Ah, so general statements with, you know, sort of, um, free narrative. Try to give – you know, the victim to – an – the starting point to go what happened at this time. Follow me through. Let me, you know, guide you through. So she explains what happens. Um, she went through to the best of her knowledge and, obviously, we need to try to clarify a few outstanding points. Um, obviously, someone that had been through some sort of trauma isn't thinking as straight as what they could. That’s why towards the end of the statement there’s a few parts where it says, oh, earlier in the night, earlier in the night. So that sort of - - -
HIS HONOUR: Sorry. I just want to understand this. The first method that you used to obtain a statement was by free narrative?---Narrative. Yes. Correct.
And you’ve noted that free narrative as it was being spoken?---As – as she’s speaking I'm, um, handwriting it down.
Yes. Is that reflected in the statement or is that a statement that you compiled later?---No, no. That’s her statement at the time is the one that’s handwritten. That was signed and dated at the time of speaking to her.
Yes. So you – as she was giving you the free narrative, you paragraphed that?
---Yeah. To – to make it neater paragraphed everything. Um, obviously, when she starts – when someone starts going on a tangent and things we try to sort of bring it back to the topic at hand, um, to sort of make it free – flow obviously a lot better.
But these are – this is a contemporaneous statement in effect?---Yes. Correct.
Yes?---It was taken all bedside, Your Honour.
[PROSECUTION COUNSEL]: And you also say towards the end of her statement she started going back?---Yeah. Started remembering additional, um, information about the events.
And that was – was that put down in a statement as - - -?---Yes. Correct.
- - - as she was saying it to you?---I could provide examples if the court would like.
Yes. Give an example, please?---Yep. Do you mind if I refer to the statement, Your Honour?
HIS HONOUR: No. You can?---So roughly around paragraph 27 where it says, ‘At some point during him going to the kitchen and back’, was – we’d sort of gotten towards the end of a – sort of a topic, um, and then [the complainant’s] thought of these things again. Um, paragraph 32, ‘Also during the night I was on the floor’. These are things that have popped up after the fact as we’re sort of getting towards the statement and she comes up with more details in relation to things. So – so the statement sort of jumps back on itself because of the way the conversation flowed, if that makes sense.
In cross-examination S/C Rinderhagen explained further, as follows:
[DEFENCE COUNSEL]: You said earlier when my learned friend was asking you some questions that she was difficult to converse with?---Yes.
What do you mean by that?---Ah, trying to keep her on track of – I’m obviously trying to obtain a statement to the best of what we can get. Um, she’d explain something and then would ramble on about something else. Continuing on from – straying from what I was trying to get in – on paper, if that makes sense.
It was difficult to keep her focused on what you were actually asking her about?---Yes. Correct.
Difficult to keep her on topic?---To the direct topic.
What do you mean by that?---As in I’m trying to focus on the assaults that have occurred. Um, she would go on about previous history that was not relevant to the offending that had happened that night.
Previous history with people in general?---Specifically [the applicant].
S/C Rinderhagen commenced taking the statement from the complainant at around 2:15 pm and finished at 5:28 pm, when the statement was signed. During that time, S/C Rinderhagen explained:
[D]octors were coming and going, um, assessing her. Ah, CSO – the crime scene officers came down, took photographs. Um, I was on the phone to other members, um, at the scene to try to get an idea of what was going on there. Um, so there was a few things going on at the same point, um, whilst trying to obtain a statement from [the complainant].
Thus the fifth set of representations commenced around 9 hours and 15 minutes after the applicant was alleged to have left the complainant’s home; but less time than that had elapsed between the making of these representations and the asserted fact that the applicant had returned to the premises. Again, it is not possible to be precise about the elapsed time.
Once again we observe that the complainant was still seriously injured at the time she made the representations to S/C Rinderhagen, having been physically assaulted. He observed her injuries, saying this:
You could visibly see swelling, bruising to her face, arms and limbs. Um, it wasn’t until we sort of had a bit more of a look when the doctors were examining her that we could see further injuries down her back to her buttocks, um, around the breasts.
He also observed the complainant to be ‘visibly shaken up’.
It is of course the case that the circumstances in which the fifth set of representations were made were quite different, in several respects, from the circumstances in which the earlier representations had been made. First, the representations were made in a formal statement to police. Secondly, the time that had elapsed between the making of the representations and the asserted facts was longer. Thirdly, the complainant was no longer at the location of the offending, or a location proximate to the offending — she was now at the hospital. She was being treated for her injuries during the course of the taking of the statement.
In our opinion, the fifth set of representations, made to S/C Rinderhagen, were made ‘shortly after’ the asserted facts. In that regard, they can be regarded as a continuation of the conversations that the complainant had had with various people in the course of the day. Furthermore, the applicant was still experiencing the effects of her injuries. The time that had elapsed between the asserted facts and the commencement of the taking of her statement was less than 9 hours, again being comfortably within the timeframe that has, in other cases, been accepted as being properly characterised as ‘shortly after’.
In relation to whether the circumstances were such that the fifth set of representations were unlikely to be fabrications, it is significant that many of these representations were made at a time when medical staff were in and out of the area, assessing the complainant and treating her for her injuries. In addition, crime scene officers came in and photographed her injuries. S/C Rinderhagen gave evidence that the complainant was ‘visibly shaken up’, ‘looked distraught’, was ‘struggling to … articulate certain things’ and appeared ‘scared’.
S/C Rinderhagen’s explanation of the process of the taking of the statement is also relevant. In summary, he described it as involving initially a ‘free narrative’ (ie a spontaneous account) by the complainant, followed by questions from him designed to clarify various points. Again, the complainant did not fabricate the fact that she had been physically assaulted, which supports the proposition that her account as a whole was unlikely to be fabricated. The complainant also understood that she was making a formal statement to police about the events that had occurred, and she signed each page of the handwritten version of her statement.
In these circumstances we consider that it is unlikely that the applicant would have fabricated her account. The immediacy of the event remained, even though the complainant was no longer physically proximate to the place where the assault had occurred. In that regard, we note that there are other cases where representations made at a hospital some hours after an assault have been held to have been made under the proximate pressure of the occurrence of the asserted fact, and thus ‘shortly after’ that fact, one of which involved a statement given to police.[51]
[51]See, eg, Cooling [2019] VSC 603 (involving a statement to police given at a hospital); Thomas [2021] VSCA 269 (involving a statement to a doctor at a hospital).
The applicant asserted that the further time that elapsed between the complainant’s earlier representations and her representations to S/C Rinderhagen meant that the police statement was not part of a ‘continuous or relatively uninterrupted account’, and thus the representations made to S/C Rinderhagen ought to be treated differently. We do not accept that submission. While it is true that the police statement was not part of a ‘continuous or relatively uninterrupted account’, it is also the case that there was relatively little time between the various sets of representations — that is, the phone call to the complainant’s mother occurred at around 11:30 am, the phone call to 000 at 12:20 pm, the body worn camera footage commenced at 1:30 pm and the police statement commenced at 2.15pm. In any event, that is not the statutory question.
The first statutory question is whether the representations were made ‘shortly after’ the asserted facts. As we explained above, the ‘gap’ between asserted facts and the fifth set of representations — of under 9 hours — was such that they are properly characterised as being made ‘shortly after’ the asserted facts. The fact they were not continuous does not require any different conclusion. The second statutory question is whether the circumstances in which the representations were made meant that they were unlikely to be fabrications. In our opinion the additional time that elapsed between the complainant’s phone call to her mother, her phone call to 000, her representations to S/C Stack and the fifth set of representations, made to S/C Rinderhagen, was such that there was no additional opportunity for, or likelihood of, fabrication. The fact they did not comprise a continuous or relatively uninterrupted account does not require a different conclusion.
Again we note that the applicant did not rely on the possible presence of drugs or alcohol in the complainant’s system as relevant to the assessment of whether s 65(2)(b) was satisfied.
For the above reasons, we consider that it was well open to the trial judge to find that s 65(2)(b) is satisfied in relation to the fifth set of representations.
In light of that conclusion it is not necessary to consider whether it was also open for the judge to find that s 65(2)(c) is also satisfied in relation to the representations the complainant made to S/C Rinderhagen.
(c)Conclusion on ground 2
In light of the above, we consider that there was sufficient evidence before the trial judge to enable him to be satisfied on the balance of probabilities as to the maters set out in s 65(2)(b) for each of the representations in issue. We also consider that his Honour’s conclusion that the evidence was admissible under that sub-section was open to him. For completeness, we would add that we consider his Honour’s conclusion was correct.
For these reasons, we would grant leave to appeal on ground 2 but affirm the trial judge’s ruling that the evidence is admissible pursuant to s 65(2)(b) of the Evidence Act.
(6)Ground 3
Ground 3 is as follows:
His Honour erroneously found that the circumstances relied on by the Applicant were not reliable indicators of whether the complainant was under the proximate pressure of the asserted fact at the time of making each previous representation.
(a)The applicant’s submissions on ground 3
The applicant’s written submissions in relation to this ground were as follows:
His Honour also considered the irrelevant matter of whether the circumstances themselves were reliable, rather whether those circumstances themselves impacted the assessment of the truthfulness of credibility of previous representations.
Finally, his Honour’s findings in respect of the circumstances surrounding the making of the police statement, were inconsistent with each other and it was not reasonably open to his Honour to rule as he did. Moreover, his Honour mischaracterised the nature of it and the preceding representations as being spontaneous and informal.
Once again, the written submissions did not clearly relate to the ground of appeal. However, in oral argument this ground was developed by reference to the trial judge’s rejection of the applicant’s submissions concerning the complainant’s demeanour as a reliable indicator of whether she was under the proximate pressure of the asserted facts at the time she made the various representations. No other circumstance was put in issue under this ground.
(b)Consideration of ground 3
For the reasons given at paragraph 117, above, this ground has no prospects of success. There is simply no evidential basis to conclude that there is a particular manner in which a victim of a serious physical assault would typically or normally present to police and paramedics after the assault. Thus the complainant’s demeanour cannot be evaluated in the manner suggested by the applicant. Furthermore, even if there were a typical presentation, the fact that a particular person did not exhibit that demeanour would not be probative of whether the representations that person made were ‘unlikely to be fabrications’.
We would refuse leave to appeal on ground 3.
PART D:GROUND 4: SECTION 137 OF THE EVIDENCE ACT
Ground 4 is as follows:
His Honour erred in finding that the probative value of the evidence outweighed the danger of unfair prejudice to the accused under s 137 Evidence Act 2008.
Section 137 provides as follows:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
‘Probative value’ is defined in the Dictionary to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.
(1)The applicant’s submissions on ground 4
The applicant’s written submissions on ground 4 were as follows:
The probative value of the evidence (as distinct from its importance) is low. There is no requirement to assume the events complained of actually occurred. His Honour rejected the Applicant’s submissions but did not engage in any assessment of the probative value of the evidence. His Honour erroneously found the inability to cross-examine was itself incapable of founding exclusion under s 137.
It was also submitted, by Applicant that the inability to cross-examine the complainant on issues such as her drugs use, medications, and mental health would deprive the accused of the opportunity to seek a direction under s 32 Jury Directions Act 2015. His Honour did not rule on this issue.
His Honour erroneously ruled contrary to submissions by the Applicant, any risk of unfair prejudice arising from the jury overvaluing the evidence and not appreciate its limitations was capable of being cured by submissions and directions.
Evidence is not unfairly prejudicial merely because it tends to prove the guilty of the accused. However here, because the Respondent’s case relied solely on the evidence of the complainant, permitting its reception would essentially require the accused to give evidence.
His Honour erred in finding that the inability to cross-examine the complainant on her failure to attend for examination ordered under s 198B Criminal Procedure Act 2009 and the contents of letters she sent to the accused were not relevant to whether any trial would be unfair.
In oral argument the applicant contended that because the complainant had ‘mental health concerns’ and was on medication, the probative value of the evidence was low. The mental health concerns were identified in broad terms as anxiety and depression. He also observed that the ‘inherent implausibility’ of an assertion is relevant to its probative value, relying on IMM v The Queen.[52] He submitted that the complainant’s account that she and the applicant were in her house for some six hours, for much of which she was made to lie face down on the carpet, was ‘if not inherently implausible, highly suspect’.
[52]IMM (2016) 257 CLR 300; [2016] HCA 14 (‘IMM’).
In contradiction to his written submissions on this ground, the applicant submitted in oral argument that the various defects he had identified in the complainant’s evidence would mean that there would be an application for an unreliability direction under s 32 of the Jury Directions Act and that such a direction ‘would almost certainly be given’.
In oral argument the applicant further contended that the unfair prejudice of which he complained is ‘the danger … that the jury will simply accept the complainant’s evidence given it cannot be challenged and give it more weight than it … deserves’. That unfair prejudice is not, he submitted, capable of being cured by any directions the trial judge might give.
Finally the applicant relied in particular on the decision of the Supreme Court of the Northern Territory in R v Doolan.[53] In that case Graham AJ had held that the requirements of s 65(2)(b) were not met in relation to certain hearsay evidence, where the representations were made seven days after the asserted facts. His Honour also held, by way of obiter, that even if the evidence had been admissible under s 65, he would have excluded it under s 137. His reasons were as follows:
On one hand, clearly the statement is of prime importance to the Crown case. I am told that without that statement the case would collapse and a nolle prosequi will be entered. On the other hand, the prejudice to the accused of having a statement from an alleged victim tendered to a jury is very great indeed. The High Court in Lee v The Queen has stated that ‘confrontation and the opportunity for cross examination is of central significance to the common law adversarial system of trial’. Lord Bingham in the House of Lords case of The Queen v Davis said ‘it is a long established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence’. … There are however, some important fundamental principles that apply to criminal trials. In the first place, as previously noted, an accused person should generally be given the opportunity to test contrary evidence in cross-examination. This is particularly so in a case where there are no independent witnesses to the incident itself and the case would largely rest on an assessment of the two conflicting versions of what occurred. In this case, the various inconsistencies that I previously referred to would have provided fodder for a cross-examiner. … In this case, there has been no cross-examination at an earlier date either at committal or a Basha inquiry. It is also important that a jury have the opportunity to observe the demeanour of witnesses. Thirdly, it is a basic right of an accused to confront the accuser and this is denied in these circumstances.
I would add there are other matters that support exclusion. It would be an exercise in futility to warn the jury about the danger of relying on untested evidence in circumstances when that evidence is almost the only focus of the Crown case. Also to admit the evidence would be, for practical purposes, to reverse the burden of proof, as the accused would inevitably have to give evidence.[54]
(2)Relevant principles concerning s 137
[53][2019] NTSC 53 (‘Doolan’).
[54][2019] NTSC 53, [8]–[9].
As this Court observed in Norris v The Queen:
Section 137 of the Act requires a balancing exercise to be undertaken, in which the probative value of evidence is to be weighed against the danger of unfair prejudice. That exercise requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue. If that balancing exercise results in a finding that the probative value is outweighed by the danger of unfair prejudice, no element of discretion arises: the Court must refuse to admit the evidence.
Evidence is not unfairly prejudicial simply because it renders it more likely that the accused will be convicted. The danger of unfair prejudice contemplated by s 137 may arise in a variety of ways, however, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or misjudge the weight to be given to the evidence. Inability to test the reliability of evidence may carry with it the danger of such misjudgement.[55]
[55][2018] VSCA 137, [44]–[45] (Priest, Niall and Ashley JJA).
Thus evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. Furthermore, in determining the probative value of the evidence for the purposes of s 137, it is necessary to assume that the evidence is both credible and reliable.[56] However, ‘the circumstances surrounding the evidence may indicate that its highest level is not very high at all’.[57]
[56]IMM (2016) 257 CLR 300, 321 [83] (Gageler J); [2016] HCA 14.
[57]IMM (2016) 257 CLR 300, 315 [50] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.
The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. In some cases, taken by itself, the evidence may only, as in the case of circumstantial evidence, strengthen an inference that a fact in issue exists, when considered in conjunction with other evidence. In other cases the evidence, if accepted, may support an inference to a high degree of probability that the fact in issue exists. That is, ‘the evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition’.[58] It may also be accepted that ‘the probative value of evidence, and its importance to the prosecution case, are distinct concepts’.[59]
(3)The trial judge’s ruling on s 137
[58]IMM (2016) 257 CLR 300, 313–14 [45] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.
[59]Volpe v The Queen [2020] VSCA 268, [70] (Priest, T Forrest, Weinberg JJA).
The trial judge dealt comprehensively with the question whether to exclude the impugned representations pursuant to s 137.
First, the judge observed, correctly, that the inability to cross-examine the person who made the representations is not dispositive of the issue arising under s137. He also observed that in Williams the Federal Court, while recognising the evidence may be unfairly prejudicial and that it may be misused by the jury in some unfair way, considered that ‘a strong warning was required to warn the jury of the need for caution’, and that ‘the evidence should only be accepted and relied upon after close and careful scrutiny’. In that case, such a direction had not been given at trial, which led the Court to hold that there was an error.
Secondly, the judge held that that the evidence is highly probative. He observed that the applicant admits having entered the complainant’s home and having been in her presence on 30 August 2021. He also observed that the accounts given by the complainant were largely consistent, and were given shortly after the incident.
The judge then dealt with the applicant’s submission concerning the matters which he said he would be deprived of an opportunity to cross-examine about. His Honour considered those to be either speculative or of low relevance. He dealt with each of them in turn, as follows:
(1), Whether the complainant heard noises coming from her bedroom prior to seeing the accused: In my view, her evidence that she saw the accused emerge from the bedroom is supported by the photographs of the unit, the window and its state, in a significantly objective way.
(2) The time of entry: despite some small divergence in the complainant's account, this seems to be of low relevance in my view.
(3) The events alleged to have occurred, in my view, are supported by the photographic examination of the scene.
(4) The impact of the complainant's mental health, her drug use and rehabilitation efforts, in my view, are not significant matters given the ability to raise the argument by the defence, based on material which comes from the complainant herself.
(5) The impact of medication provided at the hospital: this is based on a ‘discharge document’ which is compiled about a week after the events and about which the defence could potentially cross-examine a medical witness.
(6) [The applicant’s] argument about overvaluation of the evidence, [is] disposed [of], in my view, by appropriate directions as is the case with (8), regarding the jury being moved by sympathy towards the complainant.[60]
[60]The judge correctly observed that the applicant had identified eight matters. His Honour dealt with matters d. and e. in the applicant’s written submissions together as (4), and with matters g. and h. in the written submissions as (6), with the reference to (8) being a reference to matter h. in the written submissions.
The trial judge further held that the applicant’s reliance on the complainant’s non‑attendance at the two scheduled s 198B examinations, in order to demonstrate that she was ‘most likely to be a reluctant or recalcitrant witness who may have not sworn up to her assertions’, was speculative. He held that it was impossible to draw an inference from the body worn camera footage that she would not have given evidence when called upon at trial, or that she would not have given evidence in accordance with her representations. His Honour also rejected the argument that the applicant was unfairly deprived of the opportunity to demonstrate this. He noted that the applicant had not taken up the opportunity to cross-examine the complainant when the matter came before the court for committal, which the complainant attended.
In so far as the applicant sought to rely on the letters sent by the complainant to the accused, in which she asked for correspondence from him and which contain expressions of love and affection, the judge held that those letters, which were sent some significant period of time after the alleged events, did not diminish the value or reliability of her assertions made shortly after the event. Furthermore, his Honour considered that the letters were ‘not hindrances to the defence’, but would enable the applicant to argue, in the absence of cross-examination, that their contents are relevant to the jury’s task.
The judge accepted that there were other issues relating to alleged inconsistencies between the various representations, which would likely have been the subject of cross‑examination, including the use of the knife, the description of the strangulation, the absence of CCTV footage, the issue of loss of consciousness, and the use of the plate. He observed that there is objective evidence about some of these issues. The judge did not accept that the defendant's inability to cross-examine the complainant about these issues would inevitably render the trial unfair. He did not accept the applicant’s argument that the court lacks a substantial understanding of the circumstances of the representations, which will not be able to be tested by cross-examination. In that regard, His Honour distinguished Madina.
His Honour concluded his analysis of s 137 by referring to this Court’s decision in Huici, as follows:
The prejudice to the accused was recognised in Huici … in that there is a significant departure from the usual trial practice of adducing direct testimony. However, even while recognising the denial of an opportunity to put a version of events to the complainant from which an alternative hypothesis might emerge, and some differences in the account might cast doubt on the allegations, of a kind that would not sustain a conviction, the court indicated that there remained scope to highlight the inconsistencies and lacunae in the evidence by way of submission, and that directions to the jury would ameliorate the inability to cross-examine.
(4)Consideration of ground 4
As noted above, it is well-established that House v The King[61] principles apply to an interlocutory appeal in relation to a trial judge’s decision whether to exclude evidence under s 137.[62] In the present case there was no suggestion that the judge had made any specific error; rather, it was submitted that it was not open to the judge to conclude that the unfair prejudice to the applicant was outweighed by the probative value of the evidence.
[61](1936) 55 CLR 499; [1936] HCA 40.
[62]Lewis [2018] VSCA 40, [50] (Ferguson CJ, Weinberg JA, Kidd AJA), referring to McCartney v The Queen (2012) 38 VR 1; [2012] VSCA 268; KJM v The Queen (No 2)(2011) 33 VR 11; [2011] VSCA 268; Bray (a pseudonym) v The Queen (2014) 46 VR 623; [2014] VSCA 276.
In our opinion it was well open to the trial judge to conclude that in this case the probative value of the hearsay evidence sought to be adduced was high.
There was no dispute that the representations in issue were relevant: that is, they were probative of facts in issue. In our opinion the impugned representations are probative in the second sense identified above: that is, they constitute evidence that, if accepted, supports an inference to a high degree of probability of two facts in issue, namely the identity of the person who assaulted the complainant and the time at which the events described occurred. In other words, the evidence, if accepted, would establish a sufficient condition for the existence of those facts. There is no dispute that the complainant was assaulted; there is no dispute that he was at her home at some point in time on 30 August 2021; there is also no dispute that she knew the applicant, and thus could not have been mistaken in her identification of him as the offender. Thus, assuming that the representations are credible and reliable,[63] they are strongly supportive of the allegation that it was the applicant who assaulted her. Her representations are also strongly supportive of the fact that she was falsely imprisoned in her home by the applicant for many hours, even if the time at which the offender left the premises is not established with precision.
[63]We note that many of the applicant’s submissions in relation to ground 4 challenged the reliability of the evidence. We have put these matters to one side as not being relevant to the question of the probative value of the evidence.
The next question is whether it was open for the judge to conclude that the highly probative nature of the evidence is not outweighed by unfair prejudice to the applicant.
We accept that there is a real — and unfair — prejudice to the applicant in admitting hearsay evidence of the impugned representations because the applicant will not be able to cross-examine the maker of the representations: that is, they will be untested. That may result in the jury giving the representations undue weight. We also accept that ‘confrontation and the opportunity for cross examination is of central significance to the common law adversarial system of trial’.[64] The unfair prejudice is relevant even though the admissibility of evidence where cross-examination is not possible is expressly authorised by s 65. But it is plain that an inability to cross-examine the maker of the representations cannot be determinative, otherwise s 65 would never result in the admissibility of hearsay evidence, where the maker of the representation is not available, in a criminal trial.
[64]Lee v The Queen (1998) 195 CLR 594, 602 [32] (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ); [1998] HCA 60.
In a case of this kind the jury will undoubtedly be given a direction concerning the forensic disadvantage to the applicant by reason of the fact that the complainant cannot be cross-examined and her representations tested. It will be open to the judge to give ‘appropriate and strong directions regarding the dangers of giving too much weight to untested statements’.[65] It is also possible, as the applicant accepted, for him to seek a direction under s 32 of the Jury Direction Act to the effect that the representations may be unreliable.[66] Furthermore, the issues the applicant has identified in relation to the reliability and credibility of the complainant — including the inconsistencies between the various sets of representations, the fact the complainant was taking prescription medication that might have affected her mental state, and the complainant’s letters to the applicant — can all be put before the jury by way of evidence and/or submissions. Indeed, in the hands of a skilled criminal advocate, those matters would be readily capable of being used — absent the witness — to obtain a legitimate forensic advantage for the defence case.
[65]Lewis [2018] VSCA 40, [59] (Ferguson CJ, Weinberg JA, Kidd AJA).
[66]No such direction having been sought or refused, we make no comment on whether such a direction would be appropriate in the present case.
To the extent that the jury may be assisted by observing the demeanour of the witness,[67] two of the sets of representations were recorded on a body worn camera and thus the jury will have an opportunity to observe the complainant’s demeanour at the time she made those representations. In addition the 000 call was recorded, so although the jury cannot see the complainant making those representations, they can hear her do so.
[67]See, eg, Doolan [2019] NTSC 53, [8] (Graham AJ). We note that the United Kingdom Court of Appeal has observed that ‘it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth’: Sri Lanka v the Secretary of State for the Home Department [2018] EWCA Civ 1391, [36] (Lord Leggatt).
We do not accept that to admit the hearsay evidence would in a practical sense reverse the burden of proof, because the accused would inevitably have to give evidence.[68] In light of the issues the applicant has identified in relation to the reliability of the representations, it would be open for him to call medical evidence concerning the effect of the medication the complainant was taking, to cross-examine the complainant’s mother and the police officers, and to point out to the jury the various inconsistencies he has identified in the various sets of representations. It may be that he will determine that it is in his interests to give evidence; but that is not a foregone conclusion. And for him to make that forensic decision is not to reverse the burden of proof.
[68]Contrast Doolan [2019] NTSC 53, [9] (Graham AJ).
In so far as it is suggested that, if evidence of five broadly consistent accounts is admitted, the jury might use the consistent repetition to conclude that the account is true, it does not follow that this would cause ‘unfair prejudice’ to the applicant. Once the impugned representations are admitted under s 65(2)(b), they are admitted for the purpose of proving the facts contained in the representations, not simply for proving that those representations were made. In that sense the evidence is relevant and has substantial probative value as evidence of the truth of what was asserted. The evidence thus supports the prosecution case, but it is not thereby unfair to the applicant. Furthermore, the inconsistences in the various representations made to different people that the applicant has identified, discussed above, offer the applicant an opportunity, in his address to the jury, to challenge the reliability of the representations.
However, even if there is a danger of ‘unfair prejudice’ by reason of the repetition of the representations, it does not follow that the evidence must be excluded under s 137. That section requires exclusion only if the danger of the unfair prejudice would outweigh the probative value of the evidence. In the present case, and bearing in mind the role of an appellate court on an interlocutory appeal, we consider it was open to the trial judge to conclude that the danger of any unfair prejudice would not outweigh the probative value of the evidence. That is particularly so in light of the ability of the judge to fashion appropriate directions to the jury about the prejudice to the applicant and the permissible use of the evidence. It must be assumed that the jury will follow such judicial directions.[69]
[69]DPP v Crawford (a pseudonym) [2023] VSCA 173, [68] (Priest and Kennedy JJA); Qadir (a pseudonym) v The King [2023] VSCA 155, [35] (Priest, Walker, Kaye JJA). Again, contrast Doolan [2019] NTSC 53, [9] (Graham AJ).
For completeness, we also observe that in our view the trial judge was correct not to exclude the evidence pursuant to s 137.
For these reasons we would grant leave to appeal on ground 4, but affirm the trial judge’s ruling that the evidence in question is not excluded pursuant to s 137 of the Evidence Act.
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[13]Sio (2016) 259 CLR 47, 64 [57] (French CJ, Bell, Gageler, Keane and Gordon JJ); [2016] HCA 32.
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