Norris v The Queen
[2018] VSCA 137
•24 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0055
| AAMIR NORRIS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2018 0056 | |
| RUARIRI ROSS (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicants.
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| JUDGES: | PRIEST, NIALL and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 May 2018 |
| DATE OF JUDGMENT: | 24 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 137 |
| RULING APPEALED FROM: | DPP v [Norris & Ross] (Unreported, County Court of Victoria, 5 March 2018) |
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CRIMINAL LAW — Interlocutory appeal — Applicants charged with aggravated burglary, intentionally cause injury and theft — Witnesses not available to give evidence — Whether judge erred in not excluding committal evidence of witnesses — Application for leave to appeal refused — Evidence Act 2008, ss 65, 137 — Haddara v The Queen (2014) 43 VR 53.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Norris | Ms F H Todd | Slades and Parsons Solicitors |
| For the Applicant Ross | Mr M Page | Leanne Warren & Associates |
| For the Respondent | Mr C B Boyce SC with Ms C J Duckett | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA
ASHLEY JA:
Introduction
An indictment filed in the County Court charges each applicant with aggravated burglary[2] (charge 1), intentionally causing injury[3] (charge 2) and theft[4] (charge 3).
[2]Crimes Act 1958, s 77.
[3]Crimes Act 1958, s 18.
[4]Crimes Act 1958, s 74(1).
Save that the applicant Norris has indicated that he intends to plead guilty to intentionally causing injury, both applicants have indicated that they will plead not guilty.
Although they each made statements to the police and gave evidence at committal proceedings against the applicants, the two complainants in the case, Ms Hilina Gezahegn and Mr Abdullahi (‘Abdul’) Addo, have been excused from giving evidence in the applicants’ trial. Both complainants gave evidence on voir dire before the trial judge that they feared for their safety if they gave evidence. Having received their evidence, the judge was ‘satisfied that they are both genuinely in fear for their personal safety if they were to give evidence’, and he purported to excuse them from doing so.
Pursuant to s 65 of the Evidence Act 2008 (‘the Act’), the prosecution then sought to rely on the evidence that both complainants gave in the committal proceedings. Although counsel for both applicants conceded that, within the meaning of s 65, each of the complainants ‘is not available to give evidence about an asserted fact’, they contended that the evidence ought to be excluded pursuant to s 137 of the Act, or pursuant to the common law unfairness discretion.[5]
[5]See Haddara v The Queen (2014) 43 VR 53 (Redlich, Weinberg and Priest JJA) (‘Haddara’).
By a ruling dated 5 March 2018 (‘the ruling’ or ‘the interlocutory decision’) the trial judge refused to exclude the evidence. Pursuant to certification granted under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) — ‘that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’ — the applicants seek leave to appeal the interlocutory decision.
The applicant Norris relies on four grounds,[6] as follows:
[6]Initially, the applicant Norris relied on three grounds. At the hearing, counsel sought leave to rely on a fourth ground, ground 4. Since the respondent did not oppose such leave, the Court deemed it appropriate to grant it.
1. The learned trial judge erred in not excluding the evidence of the complainants Abdul Addo and Hilina Gezahegn, finding that the probative value of the evidence outweighed the danger of unfair prejudice to the applicant pursuant to s 137 of the Evidence Act 2008.
2. The trial judge erred in failing to consider the probative value of the evidence in accordance with the definition of ‘probative’ value in the Act, specifically that he failed to consider the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. In particular, the trial judge erred in assessing the probative value of the evidence as high in the context of:
a. the inconsistencies between the complainants’ evidence and independent evidence from mobile phone records, photographs and CCTV footage;
b. the fact that crucial portions of the committal recording were inaudible;
c. the lack of corroborating evidence; and
d. the established willingness of one of the complainants to lie on oath in these proceedings.
3. The learned trial judge erred by not excluding the complainants’ evidence pursuant to the common law fairness discretion.
4. In deciding whether to admit the committal evidence at trial, the learned trial judge applied the wrong principles by characterising the exclusionary test in s 137 of the Evidence Act, and the ‘Haddara discretion’ as relevant considerations in the exercise of a discretion to admit evidence pursuant to s 65(3) of the Evidence Act 2008.
The applicant Ross relies on two grounds, formulated as follows:
1. That the Learned Trial judge erred in not excluding the evidence of Abdul Addo and Hilina Gezahegn, pursuant to s.137 of the Evidence Act 2008, the error being finding that the probative value of the impugned evidence outweighed the danger of unfair prejudice to the Applicant.
2. The Trial judge erred by not excluding the Complainants evidence pursuant to the common law fairness discretion.
For the reasons that follow, we would refuse leave to appeal.
Summary of the alleged offending
An outline of the prosecution’s case is to be found in the Summary of Prosecution Opening.
In October 2016, Ms Gezahegn and Mr Addo were living together in a flat situated on an upper floor of the Carlton Housing Commission high-rise flats. The prosecution case is that on Monday, 31 October 2016, at 10.28 am, the applicants forced their way into the complainants’ flat and there attacked Mr Addo with an extended ASP baton, striking him to his body and head (charge 1, aggravated burglary). Ms Gezahegn had been in bed asleep, but woke up and started screaming. She grabbed her iPhone and attempted to call the police, but the applicant Ross took it from her (charge 3, theft). When Mr Addo tried to wake another occupant of the flat, the applicants struck him some more with the baton (charge 2, intentionally causing injury).
The applicants eventually left the flat with Mr Addo between them, but he escaped and made his way to the ground floor. Police then attended the scene, and not long afterwards, both applicants were arrested, interviewed and charged.
Reluctant witnesses
By the time the indictment against the applicants was filed in the County Court, Mr Addo had been imprisoned. When the applicants’ trial came on for hearing on 26 February 2018, the prosecutor informed the judge that she had ‘commenced conferencing the witnesses for this trial’ the previous week, and she had ‘been instructed by Mr Addo and Ms Gezahegn, who are the two primary witnesses, complainants, in the trial … that they do not wish to give evidence’. The witnesses, the prosecutor said, ‘have personal safety concerns’, and ‘if called they will not give evidence’. (We do not pause to reflect upon the appropriateness of a prosecutor being ‘instructed’ by a prosecution witness.) The prosecutor informed the judge that, in light of the complainants’ reluctance to give evidence, under s 65 of the Act she sought a ‘declaration’ that the witnesses are ‘unavailable’; and she made application that the prosecution be permitted to rely upon the complainants’ statements and their committal evidence.
As a result of what Mr Addo and Ms Gezahegn had ‘instructed’ the prosecutor, the prosecution arranged for barristers on a pro bono basis to give each complainant legal advice concerning their situation. (Presumably the barristers would have advised the witnesses of the importance and great social significance of giving evidence in a criminal trial; that the witnesses had a duty to give truthful evidence unless they had a lawful excuse for refusing to do so; and that, absent any lawful excuse, failure to give evidence in the applicants’ trial would constitute a serious contempt.[7])
[7]For example, see R v Garde-Wilson (2005) 158 A Crim R 20 (Harper J); Smith v The Queen (1991) 25 NSWLR 1 (Kirby P, Mahoney and Meagher JJA); Principal Registrar of Supreme Court of NSW v Thanh Vu Tran (2006) 166 A Crim R 393 (Buddin J).
Thereafter, in a voir dire conducted the next day (that is, 27 February 2018), in answer to questions asked by the prosecutor, Mr Addo confirmed that he had made a statement to police on 31 October 2016, and had given evidence at committal proceedings in May 2017. When questioned further by the prosecutor, Mr Addo said he ‘would like to not give evidence anymore’. He said, ‘Ah, Your Honour, I’d like to, um, not give evidence as well as drop, drop the case if I could, because, um, personally, I just don’t want any problems, I want a normal life, and second of all, I don’t want to be looking over my shoulder for the rest of my life’. Mr Addo said he had ‘had some threats that was [sic] held against me’, linked to giving evidence in the trial. He said he was ‘threatened to be stabbed’ in one unit of prison; and, after being moved to another unit, was assaulted by people who told him he was being assaulted ‘because of the statement and the evidence that [he had] given to police’. When asked whether those assaulting him had told him that the applicant Ross had asked them to do so to ‘make sure’ that he did not give evidence in the trial, Mr Addo said that he would ‘rather not say’. Mr Addo agreed, however, that he had told Corrections Victoria personnel that he was assaulted because of the statement and evidence that he had given relevant to the applicant Ross.
The prosecutor also elicited evidence on the voir dire from Hilina Gezahegn. She agreed that she made a statement to police on 31 October 2016, and gave evidence at committal proceedings on 30 May 2017. Both her statement and her evidence were truthful. Ms Gezahegn agreed that she had been subpoenaed to give evidence at the trial, but was ‘scared to give evidence’, for reasons of her ‘personal safety’. She said that she heard what happened to Mr Addo in prison ‘a couple of months or so’ ago. He ‘got bashed in prison, so he got threatened like to drop the case’. Ms Gezahegn said that ‘he got bashed and ended up going hospital’, and she did not want to ‘get the same thing’. She said that Mr Addo told her he got bashed by ‘five boys’ who jumped him at the same time, because he had made a statement. Ms Gezahegn also said the people unknown to her had told her that she had to ‘drop the case’.
Neither Mr Addo nor Ms Gezahegn were cross-examined by the applicants’ counsel.
Ultimately, the judge purported to ‘excuse’ the complainants from giving evidence. His Honour said that he was ‘satisfied that they are both genuinely in fear of their personal safety if they were to give evidence’. Whether the judge had power in those circumstances to excuse the witnesses from giving evidence has not been the subject of challenge in this Court. Nor has there been any challenge to the notion that the witnesses are thereby ‘not available to give evidence about an asserted fact’ within the meaning of s 65 of the Act. Indeed, so much was conceded. We note, however, that neither witness explicitly and unequivocally refused to give evidence at the trial, the effect of their evidence to the trial judge merely being that they had a preference not to do so.
Application is made under s 65 of the Evidence Act 2008
In submissions made after the complainants had given evidence on the voir dire, counsel for both applicants conceded that, in circumstances in which the complainants had been excused from giving evidence, they were ‘not available to give evidence’ within the meaning of s 65 of the Act. Both, however, objected to the admission of such evidence on two bases: first, invoking s 137 of the Act, on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicants; and, secondly, on the basis of the common law ‘unfairness discretion’, the continued existence of which was recognised in Haddara.[8]
[8]Haddara, per Redlich and Weinberg JJA, 7–78 [51]–[72]; Priest JA contra, 100–7 [158]–[182].
Apart from the complainants’ statements,[9] the committal evidence consists of an audio recording, there being no available video of the evidence. And as is usual, a transcript of the evidence has been produced. The applicants’ counsel submitted to the trial judge — and the prosecutor conceded — that there are a number of instances where some words of one of the cross-examiners appear to be missing from the transcript and the recording. And, as is not uncommon, the transcript contains a number of places where the word ‘indistinct’ is typed, the transcriber apparently being unable to decipher particular words used by cross-examiner or witness. Indeed, counsel for the applicants referred the judge to six instances where, so it was submitted, the incomplete audio recording unfairly disadvantaged their clients.
[9]By virtue of s 130(3) of the CPA, the evidence-in-chief of a witness at committal ‘must be confined to the witness identifying himself or herself … and attesting to the truthfulness of [his or her] statement’. As to the rules with respect to statements, see s 112.
The prosecutor submitted to the trial judge that the evidence of the complainants was the ‘backbone’ of the prosecution case. Significantly, counsel for the applicant Norris conceded that their committal evidence was ‘highly probative and could be described as the lynchpin of the Crown case, as there is no other direct evidence of the offending’. It was submitted by the counsel for both applicants, however, that Mr Addo had perjured himself in the course of his committal evidence to a degree that significantly reduced the probative value of his evidence (although it was not submitted that Ms Gezahegn had told obvious lies in her evidence at the committal).
Counsel relied on the inability to cross-examine the complainants in a more complete fashion than at the committal. Further, relying on Darmody[10] vis-à-vis s 137 of the Act, it was submitted for the applicants that there was a danger of unfair prejudice in that the jury may use the evidence to make its decision ‘on an improper, perhaps emotional basis’, ‘logically unconnected with the issues in the case’; and that the applicants’ cases may be damaged ‘in some unacceptable way by provoking some irrational emotional response or giving evidence more weight than it should have’.
[10]R v Darmody (2010) 25 VR 209, 217 [40] (Nettle and Ashley JJA, and Habersberger AJA) (‘Darmody’).
The judge’s ruling
The judge refused to exclude the committal evidence of the complainants.
His Honour observed that it had been conceded that the witnesses ‘are not available to give evidence within the meaning of s 65 of the Evidence Act 2008’.
The judge observed that notwithstanding ‘that there are a number of instances where some words of one of the cross-examiners appear to be missing from the transcript and the recording’, ‘the vast majority of the questions put to the complainants in cross-examination and their respective answers are intact and clear’.
With respect to the six instances where it was submitted that the incomplete audio recording unfairly disadvantaged the applicants, the judge — having both listened to the audio recording of the evidence and read the statements and transcript — concluded that there was no substantial ‘disadvantage’ or ‘unfairness’ demonstrated by the admission of the evidence.
The judge held that the probative value of the evidence was not outweighed by the danger of unfair prejudice. He considered that Mr Addo had not been shown to have told lies ‘about any matter directly related to the occurrence of the alleged offences’, although he ‘does appear to have told lies in connection with some peripheral matters’. The judge observed that the jury ‘here, as in all cases, will be directed that it can accept all of a witness’ evidence, none of it or parts of it’. He did not consider ‘that there is any unacceptable danger here that a jury would mis-estimate the weight of Mr Addo’s or Ms Gezahegn’s evidence’.
Of particular relevance to the additional ground (ground 4) relied on by counsel for the applicant Norris, the judge said:
The use of the word ‘may’ in sub-s (6) of s 65 indicates that a court does have a discretion as to whether the evidence should be admitted, and I consider that s 137 of the Act is relevant to the exercise of that decision [scil, discretion?], as would be the general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receives a fair trial, as referred to by Redlich and Weinberg JJA in the matter of Haddara v The Queen; that is, the common law discretion relied upon by the accused.
His Honour observed that, even ‘if it be thought that there was some inherent potential prejudice that might flow to an accused from a lost opportunity to explore various matters in cross-examination, I do not consider that the matters raised by counsel, either individually or when looked at as a whole, give rise to the likelihood of an unfair trial’. Referring to Luna,[11] the judge said that any danger of unfair prejudice ‘will be reduced by appropriate directions to the jury pursuant to the Jury Directions Act 2015, concerning hearsay evidence’.
[11]Luna (a Pseudonym) v The Queen [2016] VSCA 10 (Redlich, Priest and Beach JJA) (‘Luna’).
His Honour concluded his ruling as follows:
… Firstly, I assess the probative value of the committal evidence of the complainants as high. Secondly, I assess that the danger of unfair prejudice to the accused, if the committal evidence is admitted, is low. Thirdly, I do not consider that any such danger outweighs the probative value of that evidence.
Accordingly, I shall give leave to the Crown to tender the committal evidence of Mr Addo and Ms Gezahegn, subject only to the proviso to which I have previously referred. Their respective statements to police were adopted by them in their evidence and form part of their committal evidence.
The applicants’ submissions in this Court
In this Court, counsel submitted that the danger of unfair prejudice in this case amounts in general to the risk the jury will give too much weight to the evidence because it cannot be tested by cross-examination. It was submitted that the relevant cross-examination at committal was not able to extend to various important areas that would be put if the witness were available to give evidence, including details of Mr Addo’s prior and subsequent convictions for violence, drugs and dishonesty offences.[12] The unfairness is compounded by the fact that the evidence consists mainly of an audio recording with which there has been some technical difficulties.
[12]In written contentions, it had also been argued that evidence from independent sources, including crucial phone records and photographs of the scene, could not now be put to the complainants; and that evidence of collusion and concoction was not fully tested at committal. Reliance on the supposed absence of telephone records was, however, expressly eschewed in the course of oral argument, and the other matters did not appear to be pressed.
With respect to the exercise of the unfairness discretion, counsel relied on the lost opportunity for ‘trial’ cross-examination; the anticipated speculation by the jury concerning the absence of the witnesses; and the risk of undue weight being afforded to the evidence in circumstances where the evidence is unreliable.
Furthermore, in a novel and somewhat ingenious submission, counsel for the applicant Norris contended that the judge erred by viewing s 65(6) as investing the Court with a discretion separate and distinct from the ‘discretion’ to exclude evidence under s 137,[13] or pursuant to the common law unfairness discretion.[14] Counsel submitted that s 65(6) does not equip the trial judge with a discretion to admit evidence, capable of being taken into account when deciding whether to exclude evidence under s 137 or pursuant to the unfairness discretion.
[13]See [44] below.
[14]See [27] above.
Analysis
As we have indicated, the application under s 65, and the judge’s ruling, proceeded upon the assumption that the two complainants were ‘not available to give evidence about an asserted fact’. In circumstances where the two critical witnesses had not refused to give evidence, and had not been compelled by the court to do so,[15] it may be doubted that the assumption rested on a sound foundation. That said, it is the case, of course, that the ruling might always be revisited on a surer footing.
[15]Section 12 of the Act provides:
12Competence and compellability
Except as otherwise provided by this Act—
(a) every person is competent to give evidence; and
(b)a person who is competent to give evidence about a fact is compellable to give that evidence.
Thus, it should be noted that Part 2 of the Dictionary to the Act sets out those circumstances in which a person is taken not to be available to give evidence about a fact. It is provided:[16]
[16]Emphasis added.
4Unavailability of persons
(1)For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—
(a) the person is dead; or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
(d) it would be unlawful for the person to give the evidence; or
(e) a provision of this Act prohibits the evidence being given; or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
And so far as relevant, s 65 of the Act provides:
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.
…
(3)The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied—
(a) cross-examined the person who made the representation about it; or
(b) had a reasonable opportunity to cross-examine the person who made the representation about it.
…
(6)Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by—
(a) the person to whom, or the court or other body to which, the representation was made; or
(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c) the person or body responsible for producing the transcript or recording.
…
The circumstances of this case may be contrasted with Sio.[17] In Sio, the appellant was convicted of robbery in company and causing wounding or inflicting grievous bodily harm. A co-offender, Filihia, allegedly had gone to a brothel in the company of the appellant, and had there stabbed and robbed a worker. Filihia, who pleaded guilty to murder and armed robbery, had participated in an electronically recorded interview after his arrest, then provided a supplementary statement to the police, stating it was the appellant who put him up to robbing the brothel. He stated that it was the appellant who gave him the knife and provided the transportation. When called at the appellant’s trial, however, Filihia refused to take an oath or affirmation or to answer any questions at all relating to the matter, even after receiving advice from pro bono counsel as to the consequences of his silence, and being cautioned by the trial judge that he risked punishment for contempt of court.[18] It was in those circumstances that Filihia was judged to be ‘unavailable’, and his electronically recorded interview and supplementary statement were admitted into evidence.
[17]Sio v The Queen (2015) 249 A Crim R 533. See also Sio v The Queen (2016) 259 CLR 47.
[18]Sio v The Queen (2015) 249 A Crim R 533, 536 [8].
Further, the circumstances of the present case are very different from Darmody, in which the complainant in a trial for intentionally causing injury refused to give evidence at the accused’s trial. In that case, the prosecutor had told the judge that the complainant, who was in prison, was unwilling to give evidence, and raised the possibility of treating the complainant as an unfavourable witness under s 38 of the Act. When the complainant was called on a voir dire inquiry concerning his availability to give evidence, he said that he did not wish give evidence. The judge then cautioned him that he risked being dealt with for contempt and gave him an opportunity to take legal advice. Even after taking advice, however, the complainant’s attitude remained the same. He said that he was not prepared to give evidence so long as he remained in prison, although he would be prepared to give evidence on his release on parole.[19] It was in those circumstances that the prosecution was permitted to introduce the complainant’s committal evidence at trial pursuant to s 65.
[19]Darmody, 211 [7]–[8].
The facts of Nicholls[20] and Fletcher[21] may also be contrasted with those of the present case. In both of those cases, the relevant prosecution witness said to be ‘not available’ was the de facto partner of the defendant or accused. Pursuant to s 18 of the Act, the witnesses had objected to giving evidence against their de facto spouses, and had effectively been excused from doing so by the court.[22]
[20]DPP v Nicholls (2010) 204 A Crim R 306 (Beach J) (‘Nicholls’).
[21]Fletcher v The Queen (2015) 45 VR 634 (Weinberg and Priest JJA and J Dixon AJA) (‘Fletcher’).
[22]Subsection 18(6) provides:
(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that—
(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the accused, if the person gives the evidence; and
(b) the nature and extent of that harm outweighs the desirability of having the evidence given.
As we have indicated, whether the judge had power to excuse the witnesses from giving evidence at the trial has not been the subject of challenge in this Court. It may be doubted, however, that he did have power to do so, since it is one thing for a judge to rule that certain evidence that a witness may give is inadmissible, and another entirely for a judge to excuse a witness from giving evidence at all. Nicholls and Fletcher are particular examples of cases where witnesses have not been required to give evidence as a result of a specific statutory power authorising a court to absolve a spouse, de facto partner, parent or child of an accused from giving evidence in defined circumstances. But as Kirby P said in Smith:[23]
A blanket refusal to give evidence is reserved by the law to a very small class of persons and office-holders who, for reasons of high policy, are exempted from being compellable witnesses. It is undesirable in principle that this small category should be expanded, particularly when another and different procedure exists fairly to protect a competent and compellable witness in respect of the obligation to answer particular questions. That procedure permits the giving of as much evidence as is possible which does not carry the risk of self-incrimination. It requires the precise formulation of the question alleged to have the objectionable tendency. It permits a judicial ruling (and appellate review) against the touchstone of a concrete interrogation rather than the kind of global objection ventured here. It allows a court to judge more accurately the justifiability of the witness’ refusal to answer. That refusal can be tested against the suggested risk which the witness faces. It permits decisions to be made on concrete facts rather than hypothesis and speculation.
[23]Smith v The Queen (1991) 25 NSWLR 1, 10.
Notwithstanding the foregoing observations, however, the parties have — as we have been at some pains to point out — approached the matter on the basis that the witnesses were ‘not available’ within the meaning of s 65, and on the basis that there was no challenge to the judge’s decision to excuse the complainants from giving evidence. Hence, the judge and counsel alike appear to have taken into account the fact that the two complainants had been advised of their position, including the consequences of their failure to give evidence at trial. We therefore approach the merits of the present applications on that understanding.
Based on established authority, the present applications must be examined consistently with House principles.[24] Thus, the question to be considered, at this stage, is whether the trial judge’s ruling admitting the complainants’ committal evidence may be seen to be erroneous in the House sense. Approaching the present matter according to House principles, and upon the assumptions on which the parties proceeded, we can detect no error in the reasoning underpinning the impugned ruling.
[24]House v The King (1936) 55 CLR 499 (‘House’). See KJM v The Queen (No 2) (2011) 33 VR 11 (‘KJM’); CGL v Director of Public Prosecutions (No 2) (2010) 24 VR 482; Bray (a Pseudonym) v The Queen (2014) 46 VR 623; Pope (a Pseudonym) v The Queen [2017] VSCA 324.
At the risk of repetition, counsel for the applicants accepted that the evidence of the complainants is highly probative. They contended, however, that the evidence is inadmissible under s 137 of the Act, or, alternatively, should be excluded in the exercise of the common law unfairness discretion.
In our opinion, it was well open to the trial judge to rule as he did, both in relation to s 137 of the Act, and in relation to the common law unfairness discretion.
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.[25] 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.[26]
[25]IMM v The Queen (2016) 257 CLR 300, 314 [47] (French CJ, Kiefel, Bell and Keane JJ).
[26]See R v Cook [2004] NSWCCA 52, [27] (Simpson J).
Evidence is not unfairly prejudicial simply because it renders it more likely that the accused will be convicted.[27] 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.[28] Inability to test the reliability of evidence may carry with it the danger of such misjudgement.[29]
[27]Papakosmas v The Queen (1999) 196 CLR 297, 325 [91] (McHugh J).
[28]R v Yates [2002] NSWCCA 520, [252] (Wood CJ at CL).
[29]DPP (NSW) v JG (2010) 220 A Crim R 19, 48 [119] (Basten JA).
In our opinion, the inability to cross-examine Mr Addo on his prior and subsequent criminal history is not of great moment. We would think that evidence of his criminal antecedents, capable of founding inferences favourable to the defence, is readily capable of being introduced at trial without the need for the witnesses’ presence. Indeed, in the hands of a skilled criminal advocate, evidence of those matters would be readily capable of being used — absent the witness — to obtain a potent and legitimate forensic advantage for the defence cases.
Insofar as counsel for the applicants submitted that it was not ‘open’ to the judge to conclude that the admission of two passages[30] from the evidence of Mr Addo containing indistinct portions occasioned no unfairness, we reject that submission. As to the first identified passage, the judge considered that, when Mr Addo’s statement is looked at together with the passages of cross-examination which preceded it, ‘there is no disadvantage of any substance in admitting his committal evidence’. And as to the second identified passage (which related to three questions), the judge said that: ‘although one or more words are missing from the three questions concerned, when viewed in context of the preceding and following questions — and also with Mr Addo’s evidence-in-chief — I consider that there is no uncertainty as to the meaning of those answers and no demonstrated disadvantage or prejudice to the [applicants]’. In our view, these conclusions were well open to the judge.
[30]Counsel accepted in oral argument that, in relation to a third passage from the evidence of Ms Gezahegn which was initially the subject of complaint, it was indeed open to the judge to conclude that there was no relevant unfairness flowing from its admission.
For these reasons, we are unable to conclude that it is reasonably arguable that the judge erred in failing to exclude the complainants’ evidence from the committal on the basis that its probative value was outweighed by the risk of unfair prejudice. Moreover, for much the same reasons, we are unable to see that it is reasonably arguable that the absence of the witnesses, and the introduction of their committal evidence, may result in an unfair trial.
Furthermore, assuming in the applicants’ favour that there may be some unfairness to the defence cases flowing from the absence of the complainants, any such unfairness is, in our view, capable of adequate amelioration by judicial direction. Thus, it may be expected that the trial judge will instruct the jury of the need to take into account perceived disadvantages flowing from the inability to observe the complainants giving their evidence, and of the need for caution when evaluating the meaning of those passages of evidence in which part of the question or the answer is indistinct. We anticipate that the judge will also direct the jury as to the differences between cross-examination at committal and trial, and instruct the jury to take into account any identified disadvantages flowing to the applicants’ cases from the inability of counsel at trial to cross-examine on further or new matters relevant to the defence cases that have arisen since the committal proceedings.
Turning finally to the submissions advanced by counsel for Norris under cover of ground 4, in our view they cannot be accepted. It will be remembered that the judge observed that the use of the word ‘may’ in s 65(6) ‘indicates that a court does have a discretion as to whether the evidence should be admitted’, s 137 of the Act and the common law unfairness discretion being relevant to the exercise of such discretion. Plainly, however, s 65(6) does not invest the trial judge with a freestanding discretion to admit evidence. It is no more than a machinery provision.
Thus, once a decision is made to admit the evidence of a ‘previous representation’ of a person who is ‘not available to give evidence about an asserted fact’, s 65(3) makes clear that the hearsay rule does not apply to ‘a previous representation made in the course of giving evidence’, so long as the accused ‘cross-examined the person who made the representation about it’, or ‘had a reasonable opportunity to cross-examine the person who made the representation about it’. Subsection (6) does no more than set out the method by which the previous representation may be adduced, by providing that ‘the making of a representation to which [s 65 (3)] applies may be adduced by producing a transcript, or a recording, of the representation’.
We accept that the impugned statement of the judge — that the use of the word ‘may’ in s 65(6) ‘indicates that a court does have a discretion as to whether the evidence should be admitted’ — suggests that his Honour considered that the subsection imbued him with a discretion which was to be exercised in combination with a decision under s 137 and the exercise of the Haddara discretion. To that extent, the judge erred. But it is an error which cannot avail the applicants, since it is plain that, in considering whether the evidence should be admitted, his Honour took into account the relevant considerations properly informing a decision under s 137 and the exercise of the unfairness discretion. The judge’s erroneous conclusion that he had a further discretion could not have influenced the ultimate decision to admit the subject evidence.
Conclusion
In light of the foregoing, none of the proposed grounds of appeal can be upheld.
The applications for leave to appeal against the interlocutory decision must be refused.
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