Neill-Fraser v Tasmania (No 2) - [2019] TASSC 11

[2019] TASSC 11

COURT: SUPREME COURT OF TASMANIA

CITATION: Neill-Fraser v Tasmania (No 2) [2019] TASSC 11

PARTIES:  NEILL-FRASER, Susan Blyth
  v
  STATE OF TASMANIA

FILE NO:  2506/2015
DELIVERED ON:  22 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  30, 31 October, 1 November 2017, 8, 9 March 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Evidence – Hearsay – Exceptions – Generally – Respondent sought to cross-examine witness about whether she had made a prior inconsistent statement – Applicant objected to grant of leave on the basis the representation amounted to second hand hearsay – Previous representation was made with reference to a diary, which now cannot be found – Whether representation in diary came from personal knowledge and was made when "fresh in the memory" of witness – Witness had personal knowledge of asserted fact and diary was written when representation was fresh in her memory.

Graham v The Queen (1998) 195 CLR 606; R v XY [2010] NSWCCA 181, cited.
Evidence Act 2001 (Tas), ss 62, and 66
Aust Dig Criminal Law [2796]

REPRESENTATION:

Counsel:
             Applicant:  T Percy QC, C Carr, P Smallwood
             Respondent:  D G Coates SC, J Shapiro
Solicitors:
             Applicant:  Galbally & O'Brien Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 11
Number of paragraphs: 22

Serial No 11/2019
File No 2506/2015

SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA (NO 2)

REASONS FOR RULING BRETT J

22 August 2018

This ruling concerns the evidence of a witness, Sandra Junee Miedecke, called by the respondent, and proof of an asserted prior inconsistent statement of that witness.
Mrs Miedecke's evidence concerns an interaction between the yacht on which she was travelling, and a man in a dinghy, in the area relevant to this case, in January 2009. I do not intend to explain in detailed terms the relevance of the evidence to the issues in this case, but it is clear, and accepted by all parties, that the timing of the interaction affects the probative value of other evidence, and Mrs Miedecke's evidence is intended to establish that timing, and, in particular, to exclude the possibility that the interaction took place on the night on which the crime is this case was alleged at trial to have been committed, 26 January 2009.
Mrs Miedecke's evidence is that on a night around that time, she was on a yacht with two friends. On 24 January, around Australia Day, they had set sail on the yacht to travel to Bruny Island. However, their journey was cut short by adverse weather, and they returned to the marina. The interaction with the man in the dinghy occurred during the course of the journey back to the marina. After this interaction, the boat moored for the night. Her evidence was that on the following morning she did not see "a yacht half sunk or police boats or police cars, anything out of the ordinary". The yacht subsequently departed again and this time travelled along the east coast of Tasmania for two or three nights.
Her further evidence was that on 24 February 2009, she received a telephone call from a police officer, who asked to speak to her husband in relation to "the Chappell inquiry". Her husband was not at home, but during the course of the conversation, the police officer indicated that he was interested in whether her husband was "out on the water around that period". She responded by saying that she could help with the enquiry, and that she had a diary. She then obtained and referred to her diary. Her evidence was that she "gave him the dates of when we left and when we came back". As at the time of giving evidence in this hearing, she was not able to remember those dates. Her further evidence was that she had searched for her diary by looking for it extensively, but had been unable to find it.
At this point in Mrs Miedecke's evidence, counsel for the respondent applied for leave to question Mrs Miedecke as though he were cross-examining her about whether she had made a prior inconsistent statement. Upon obtaining that leave, he would be entitled to question her in that manner, having regard to the provisions of s 38(1)(c) of the Evidence Act 2001. The prior inconsistent statement is asserted to be the information which Mrs Miedecke gave to the police officer during the course of the telephone conversation, which was to the following effect:
(a)that she and her husband had moored their boat on 24 January 2009;
(b)the weather was rough;
(c)a person in a dinghy has asked them if they were okay;
(d)that they had sailed to the east coast on 25 January 2009 and returned to Hobart on 27 January 2009.
If this evidence, including the timing of the interaction were accepted, then that interaction could not have occurred on the night relevant to these proceedings. This would have significance in respect of other evidence concerning the sighting of a person in a dinghy on the night of the crime.
Counsel for the applicant objected to the grant of leave. The basis of the objection is that the evidence of the previous representation by Mrs Miedecke to the police officer is not admissible because it is hearsay, and does not fall within any of the exceptions to the hearsay rule. The underlying submission is that the representation amounts to secondhand hearsay because it was not based on the personal knowledge of Mrs Miedecke, but rather on an earlier previous representation, the contents of her diary. Accordingly, counsel for the applicant submits, there is no point in granting leave because the evidence which is sought to be adduced is inadmissible under s 59 of the Evidence Act. In order to resolve the matter, I agreed to allow counsel for the respondent to cross-examine the witness on a de bene esse basis, as if leave had been granted. During the course of that cross-examination, Mr Shapiro put to Mrs Miedecke that she had told the police officer the matters set out above. Mrs Miedecke acknowledged that she could have done so, but could not now remember whether she did so and whether the dates in the asserted statement were correct. She agreed with a proposition from counsel that, having refreshed her memory from the diary, she was able to give the police officer the relevant information.
In cross-examination by counsel for the applicant during the de bene esse evidence, Mrs Miedecke confirmed that she had "looked high and low for that diary in preparation for giving evidence", but had not been able to find it.
The more detailed explanation of the applicant's objection to the evidence is that what Mrs Miedecke's said to the police officer on 24 February 2009 about the dates on which the interaction with the dinghy took place, and the subsequent dates on which Mrs Miedecke travelled to the east coast, is a prior representation which is not admissible for a hearsay purpose, that is to prove the existence of the facts asserted by the representation. In particular, counsel argues that the evidence does not fall within the exception to the hearsay rule applicable to firsthand hearsay, contained in s 66 of the Evidence Act. The argument is that the representation made to the police officer over the telephone by Mrs Miedecke did not come from her personal knowledge, but rather originated from a previous representation contained in her diary, and hence does not comply with the requirements of s 62. Alternatively, counsel argues that the evidence is not admissible under s 66 because, even if it is firsthand hearsay, the asserted fact, that is, the dates on which the relevant events took place, was not fresh in Mrs Miedecke's memory at the time that she made the representation. Counsel points to the fact that she had to rely on her diary in order to be able to give this information to the police officer.
The argument, therefore, is that leave should not be given to cross examine as to a prior representation which is not admissible in any event. The purpose of granting leave is to enable the evidence to be adduced, either directly through cross examination, or by fulfilling the requirements of s 42 in relation to the proof of the statement by the representee, the police officer. A grant of leave only has utility if the evidence is admissible for a hearsay purpose. Having said this, the only issue taken with the evidence is the admissibility of the previous representation. If I rule that it is admissible, then there is no objection to the evidence of the relevant telephone call being adduced by way of a statutory declaration from the police officer in question.
The hearsay rule is concerned with the exclusion of the evidence of previous representations, if the purpose of that evidence is to prove the existence "of a fact that it can reasonably be supposed that a person intended to assert by the representation". By s 59(2) such a fact is referred to as an "asserted fact". The identification of the asserted fact is relevant to the operation of ss 62 and 66 because:
(a)under s 62, it is the asserted fact of which the person who made the representation must have had personal knowledge; and
(b)under s 66, the representation must have been made when the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
The asserted facts are the facts which it "can reasonably be supposed that" Mrs Miedecke intended to assert by the representation. Counsel for the respondent argues that the fact which Mrs Miedecke intended to assert is not that the events actually took place on the stated dates, but that her diary contained a previous representation that the events had taken place on those dates. However, having considered her evidence, I am satisfied that it can reasonably be supposed that she intended to assert that her diary contained those entries, and also that they were, in fact, the correct dates. It is clear from her evidence that this was the sole purpose of obtaining her diary and reading the dates to the officer. She was ultimately confirming that the dates were correct by reference to her diary, and letting the officer know that she was relying on her contemporaneous note in her diary for accuracy. Hence, it can be concluded that she intended to assert that the events had occurred on the dates in question, and also that she had recorded those dates in her diary.
In respect of the admissibility of the evidence to prove the truth of the first asserted fact, that is that the events occurred on the stated dates, the first requirement for the application of s 66 is that Mrs Miedecke had personal knowledge of the asserted fact when she made the previous representation: the Evidence Act, s 62. By virtue of s 62(2), a person has personal knowledge of the asserted fact if her knowledge of the fact "was or might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact". Counsel for the applicant argues that it can be concluded that Mrs Miedecke did not have personal knowledge of the asserted fact, because she conceded that she relied upon her diary. However, such a circumstance does not, of itself, support the conclusion that her representation to the police officer was second hand hearsay. Mrs Miedecke was not relying on a previous representation made by another person. She had refreshed her memory from a record made by her in respect of something, which it might reasonably be supposed, was based on what she had seen and heard herself. I am satisfied that, in those circumstances, she had personal knowledge of the asserted fact in the sense required by s 62.
A further requirement of admissibility is that the asserted fact was fresh in the memory of the person who made the representation, at the time that it was made: s 66(2). Section 66(2A) provides that in determining this question, the Court may take into account all matters that it considers are relevant to the question, including:
(a)the nature of the event concerned;
(b)the age and health of the person; and
(c)the period of time between the occurrence of the asserted fact and the making of the representation.
The purpose of this provision is to facilitate an holistic and objective assessment by the Court of the determination of whether a fact is "fresh in memory". The provision was inserted by an amendment in response to the decision of the High Court in Graham v The Queen (1998) 195 CLR 606, which held that, under s 66(2) as it then was, a recent or immediate temporal connection was determinative of whether the asserted fact was fresh in memory. In R v XY [2010] NSWCCA 181, Whealy J, with whom the other members of the court agreed, said of the amendments, in particular s 66(2A), at [73]-[74]:
"[73] The Commission found that there was strong support to amend s 66 to clarify that 'freshness' should be determined by a wide range of factors and should not be confined to time. The Commission noted that while focusing primarily on the lapse of time between an event and disclosure of a memory about that event might be justified in relation to memories of unremarkable events, 'the distinct and complex nature of emotionally arousing crime means that the nature of the event concerned should be considered in deciding whether memory is fresh at the relevant time'.
[74] The Commission concluded its enquiry into s 66 by stating: -
'The nature of the events concerned and the age and health of the witness are only examples of a wide variety of considerations which may be relevant to the assessment of what is 'fresh in the memory'. The examples given are not intended to constrain that assessment. On the other hand, it is thought that the proposed amendments makes it sufficiently clear the ALRC's intention in the previous Evidence Inquiry that the quality of 'freshness' will not be confined to the time which elapses between the occurrence of an event and the making of a representation about the event'. [8.122]"
Taking all relevant considerations into account, I am satisfied that when Mrs Miedecke spoke on the telephone to the police officer and made representations to him which included the date of the relevant events, the occurrence of the asserted fact was fresh in her memory. I am satisfied of this notwithstanding her evidence that she referred to her diary to confirm the relevant dates. The conversation took place roughly one month after the relevant events, and those events were of a nature that would have made for easy recall. The precise dates would have been more difficult, and precision was understandably required in relation to them, given the nature of the enquiry which had been put to Mrs Miedecke. I infer that, in those circumstances, she used a contemporaneous note in order to bolster her memory and ensure that what she said to the officer was accurate. This reference to the contemporaneous document in order to confirm the accuracy of her information, does not detract from the conclusion that the events were fresh in her memory. I am satisfied that they were.
This resolves the question of the admissibility of the conversation with the police officer, for the purpose of proving the dates upon which the relevant events took place, as asserted in that conversation. However, even if it were concluded that Mrs Miedecke simply read the dates to the police officer without any independent recollection at that time of those dates, then the evidence of the police officer can still be used to prove the truth of the facts asserted in those entries, that is that the relevant events occurred on the dates in question. That conclusion arises from relevant provisions of the Act in the following way.
The recording of the events on particular dates in the diary amounts to a previous representation of the facts so recorded, including that they occurred on those dates. See the definition of "representation" in s 3 of the Evidence Act, in particular par (c). If the diary was available, then there is no question that the relevant entries would be admissible under s 66. They constitute a representation about the facts asserted therein, about which Mrs Miedecke had personal knowledge, and which were clearly fresh in her memory when she made the entries. The fact that she is called as a witness provides the final condition of admissibility pursuant to s 66. Of course, in addition to the admissibility of the entries as a previous representation, Mrs Miedecke would probably also have been allowed to refresh her memory from them, having regard to the provisions of s 32 of the Evidence Act, but nothing turns on this in respect of this argument.
The question of proof of the contents of a document is dealt with by s 48 of the Evidence Act. Section 48(4) permits a party to adduce evidence of the contents of a document, that is not available to the party, by adducing oral evidence of the contents of the document. By s 3C, a document is taken to be not available to a party if it cannot be found after reasonable enquiry and search by the party. I am satisfied on the basis of Mrs Miedecke's evidence that she cannot find the diary after reasonable enquiry and search, and, accordingly, I am satisfied that the diary should be taken to be not available to the party who seeks to adduce it, the respondent.
This then permits the respondent to adduce oral evidence of the contents of the document. The prosecutor attempted to do so from Mrs Miedecke. Her evidence is that she cannot remember what is contained in that document. It was on this basis that the prosecutor sought leave to cross-examine on the prior inconsistent statement. A purpose of such cross-examination is to comply with the requirements of s 43 in respect of the proof of the prior statement. Director of Public Prosecutions v Finnegan [2011] TASCCA 3. In the de bene esse evidence which followed, on the assumption that such leave had been granted, Mrs Miedecke agreed that she had spoken to the officer and read to him dates from the diary, but could not recall the actual dates. Accordingly, she did not "admit or agree to the substance of the evidence": s 106(1)(a)(ii). The proof that Mrs Miedecke had made a previous representation to the police officer concerning the contents of the document, in which the asserted fact would be relevant to prove the contents of a document, and ultimately the facts asserted in the document, which is inconsistent with her evidence in Court, was therefore admissible as credibility evidence under s 106: Houston v The Queen (1982) 8 A Crim R 392; Tasmania v S [2004] TASSC 84; Director of Public Prosecutions v Finnegan. By s 60, once the evidence has been admitted for that purpose, the hearsay rule will not apply to the evidence. Hence, the previous representation of Mrs Miedecke will be admissible to prove the truth of the facts which "it can be reasonably supposed that" she intended to assert by the representation. As previously noted, I have no hesitation in concluding that even if only on the basis that she had recorded entries in her diary as to the date of the relevant events, irrespective of any independent recollection of those events at the time of the conversation, she was intending to assert to the police officer that the events occurred on the dates so recorded, because the entries were accurate. By s 60(2), s 60(1) will apply whether or not the person who made the representation had personal knowledge of the asserted facts within the meaning of s 62(2). Accordingly, the evidence of what Mrs Miedecke said to the police officer will be admissible to prove the truth of the asserted facts, that is, that the events occurred on the dates recorded in the diary.
As already noted, counsel for the applicant agrees that in the event of this finding, the affidavit of the police officer, Senior Sergeant Puurand, can be tendered by consent. He is not required for cross-examination. There is no objection raised to his evidence having regard to the provisions of s 43 of the Evidence Act. In any event, it would seem that the evidence admitted de bene esse complied with the requirements of this section, and if leave was needed for Mr Shapiro to ask the relevant questions, then I would grant leave retrospectively.

The statement of Senior Sergeant Puurand will be admitted into evidence.