R v Amato
[2021] ACTSC 155
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Amato |
Citation: | [2021] ACTSC 155 |
Hearing Dates: | 19, 20 July 2021 |
DecisionDate: | 27 July 2021 |
Before: | Murrell CJ |
Decision: | Crown allowed to adduce evidence of some previous representations made by the deceased. Otherwise, applications refused |
Catchwords: | EVIDENCE – PRE-TRIAL APPLICATION – Admissibility of evidence – admissibility of previous representations of the alleged victim – previous representations made before alleged victim’s death – where deceased diagnosed with vascular dementia – whether presumption of competence displaced – where representations made between 20 seconds and 5½ hours after asserted fact occurred – consideration of section 65(2)(b) of the Evidence Act 2011 (ACT) EVIDENCE – PRE-TRIAL APPLICATION – Admissibility of evidence – admissibility of tendency evidence concerning the accused – consideration of distinctiveness or consistency of tendency – consideration of prejudice to the accused |
Legislation Cited: | Crimes Act 1900 (ACT) ss 15, 25 Evidence Act 1995 (NSW) ss 66A, 72 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) |
Cases Cited: | Bufton v The Queen [2019] VCA 96 Hughes v The Queen [2017] HCA 20; 236 CLR 338 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 |
Texts Cited: | Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 16th ed, 2021) |
Parties: | The Queen ( Crown) Mario Amato ( Accused) |
Representation: | Counsel R Christensen ( Crown) J White SC ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) | |
File Number(s): | SCC 219 of 2020 |
MURRELL CJ:
The Trial
The accused, Mario Amato, is charged that on 13 November 2018 he:
(a)Committed manslaughter of Sheila Capper (the deceased) by an unlawful or dangerous act, contrary to s 15(2) of the Crimes Act 1900 (ACT) (Crimes Act); or, in the alternative,
(b)Caused grievous bodily harm to the deceased, contrary to s 25 of the Crimes Act.
The accused and the deceased were residents of the Southern Cross Care Residential Aged Care Facility located in Campbell (SCC).
At the time of the alleged offence, the accused was 58 years old, and the deceased was 89 years old.
It is likely that the accused had an acquired brain injury. He also suffered from Type 1 diabetes. By September 2015 he had been admitted to hospital on more than 140 occasions for self-induced hypoglycaemia. In the context of severe depression, he was admitted to SCC at this time. His liberty was restricted; for example, he was required to be present at SCC at mealtimes to facilitate the administration of insulin.
In August 2016, the deceased was admitted to SCC. She was suffering from vascular dementia, glaucoma, and other physical ailments.
The Crown case is that, on 13 November 2018, the accused entered the residents’ laundry room at SCC. The deceased followed the accused into the room. In the laundry room, the accused deliberately pushed the deceased, propelling her backwards through the laundry doorway and into a corridor, where the deceased fell to the ground. Her right hip was fractured. Following hospital treatment, on 4 December 2018, the deceased died.
The trial is to proceed in September 2021 before a judge alone.
The applications in context
The Crown seeks to lead the following evidence of previous representations and tendency.
(a)Pursuant to s 65 (2)(b) of the Evidence Act 2011 (ACT) (Evidence Act), hearsay evidence of representations made by the deceased at various points in time between 20 seconds and 5½ hours after the fall.
(b)Alternatively, pursuant to s 66A of the Evidence Act, evidence of the representations that were made by the deceased within about a minute of her fall.
(c)Pursuant to s 97 of the Evidence Act, evidence to prove that the accused had tendencies:
(i)to be frustrated at the behaviour of other SCC residents; and
(ii)to act upon that frustration by displaying physical aggression.
Facts in issue that are relevant to the applications are the mechanism by which the deceased fell (whether she was pushed by the accused) and whether the accused intentionally pushed the deceased.
On the applications, the Court was taken to affidavits of Ms Drumgold dated 28 June 2021 and 16 July 2021, an affidavit of Ms Pittney dated 25 March 2021, contemporaneous CCTV footage of the corridor outside the laundry room (Exhibit 1), and statements of witnesses (part of Exhibit 2). Dr Van Diemen expressed her expert opinion about the deceased’s cognitive capacity based on the deceased’s medical and resident records; she had not clinically assessed the deceased.
The deceased’s prior medical condition
In December 2014, Ms Wade (a pseudonym), the deceased’s daughter, realised that the deceased may be exhibiting symptoms of dementia.
A support plan prepared in July 2016 noted that the deceased was struggling to manage in her own home and wished to move to an aged care facility, primarily because of cognitive deterioration. The deceased was “becoming increasingly forgetful and confused, which [was] making it difficult for her to manage at home alone”. She had short-term memory difficulties and was sometimes repetitive. Ms Wade reported a recent rapid decline in the deceased’s ability to cook and care for herself.
At that stage, the deceased stated that her eyesight was poor; she suffered from glaucoma and had little sight in her left eye, which made it difficult for her to see steps when she was walking. She said that she had suffered several falls. Her mobility problems were exacerbated by sciatica in her left leg. However, she preferred to avoid using her walking stick. At times, she went out alone. She did some of her own shopping.
In August 2016, the deceased became a resident at SCC.
Ms Wade stated that, considering her age, in November 2018 the deceased was very mobile and steady on her feet. She attended to all her personal needs without assistance. Until shortly before the incident, the deceased visited cafes, enjoyed weekly resident outings, and came to Ms Wade’s house at weekends. She ironed her own blouse every day in the residents’ laundry. She kept her room neat and tidy. However, she suffered from short-term memory problems. In the last six months of her life, the deceased did not manage her own financial affairs, although she accompanied others to do banking and continued to undertake small cash transactions. The deceased had a diminished vocabulary and, consequently, she had difficulty expressing herself verbally. Nevertheless, she was fully aware of her surroundings and generally aware of events that occurred.
A care plan dated 22 October 2018 noted that the deceased did not understand complex sentences; simple words and short phrases were required, and communication was improved by a stress-free environment.
Patient notes show that, on 5 November 2018, the deceased resisted taking medication and required comfort and reassurance. On several occasions between 5 and 13 November, she became agitated, resisted staff assistance, and waved her hands above her head, and/or told staff to leave her alone.
The accused’s behaviour prior to 13 November
SCC case notes record that on 24 February 2017 the accused was “rude and awful” to residents in the dining room, calling them “stupid”. When a staff member spoke to him, he said “I don’t follow the rules and won’t be following them”.
On 5 April 2018 a female resident who wished to walk past the accused touched him on his chest and stumbled over his feet. The accused responded by pushing her away.
On 31 May 2018, on the SCC bus, the accused had an argument with a female resident. He slapped her head, saying “you are a nasty and annoying bitch” and “I hate you, get down from the bus”. When staff spoke to him, he said that he would react in the same way in the future as he could not tolerate the resident.
On 16 October 2018, a doctor spoke to the accused about “some behaviour issues” involving “respecting other residents as a sign of being able to manage his impulsiveness”.
A care plan dated November 2018 observed that the accused had behavioural issues that had manifested in swearing and expressing verbal anger, calling other residents “stupid”, badgering them and calling them “fuckwits”, addressing a resident as “you fucking bitch” and banging the table in the dining area.
At breakfast on 8 November 2018, the accused became verbally aggressive towards other residents seated his table, calling them “stupid”. Later, he told a staff member that he “had to have coffee to calm down”.
The incident on 13 November 2018
Just prior to the incident, the accused and the deceased were standing in the corridor outside the laundry room door and communicating verbally and by gestures.
Recently, entry to the laundry had been changed to keypad entry. Ms Chaplin (a pseudonym), a carer, walked past the accused and the deceased. The deceased was agitated because she could not gain access to the laundry. She asked “why is the door locked?” Ms Chaplin said that she would ascertain the key code. She left to do so.
CCTV of the hallway outside the laundry shows that the accused entered the laundry, followed by the deceased. Later, the deceased fell through the laundry doorway into the hallway with her body at an angle of about 45° and her right arm extended towards the ground. She landed on her right side.
It was Ms Chaplin’s recollection that she had returned to the laundry area to find the deceased lying on the floor of the hallway. A couple of times, the deceased said “He pushed me. He pushed me.” The deceased was agitated and in pain. Ms Chaplin asked Ms Norris (a pseudonym), a cleaner, to stay with the deceased while Ms Chaplin located nursing staff.
The laundry door was closed. While Ms Norris was attending to the deceased, the accused opened the door and exited the laundry. As he did so, the deceased said to her “He did it. He did it. That man”. The accused looked at the deceased. Ms Norris asked him whether he had seen what had occurred and he replied “She just had a fall” and went to his room. Ms Chaplin then returned with the nurses.
Ms Bowman (a pseudonym), a registered nurse, responded to the call for assistance. The deceased was traumatised. When asked what had happened, the deceased said that she couldn’t believe what had happened. When asked whether she remembered how she came to be on the floor, she said “I don’t remember”. Ms Bowman arranged for an ambulance to attend SCC, while another registered nurse started dressing the deceased’s right arm.
Ms Wilcox (a pseudonym), a registered nurse, also attended the deceased in the hallway. The deceased was in a lot of pain. She said “why this me?” and “why is this happening to me?” While she was treating the deceased, Ms Wilcox saw the accused calmly exit his room and walk to the laundry.
Ms Ashley (a pseudonym) went to the hallway as one of the registered nurses was dressing the deceased’s elbow. The laundry door was shut and Ms Ashley opened it. The accused was sitting on a chair with his legs crossed, bobbing his head. In answer to her question, he stated that he didn’t know anything about the deceased being on the floor and that he had not touched her. As to the incident, the deceased said “I don’t know. I don’t know”.
The deceased was conveyed by ambulance to Calvary Hospital.
Ms Wade attended the hospital. When she arrived, the deceased was alert but in great pain. Immediately, the deceased began to say that she couldn’t believe what had happened to her. The painkilling medication that she was receiving appeared to be ineffective. It was not until the deceased was given morphine at about midnight that she appeared to gain some pain relief. When Ms Wade asked the deceased what had happened, the deceased repeatedly referred to a “different door” and a “new door”. When asked further questions, the deceased continued to speak of a door. Ms Wade could not work out what she was talking about. The deceased referred to being grabbed or pulled. She motioned in a pushing motion, suggesting to Ms Wade that the door had been pushed. The deceased stated “He banged the door” and “He was out”. When asked whether “he” was one of the staff, the deceased said that he was not. When asked whether she had been pushed or hurt, the deceased said “The door, the door, he was out, the boy was out, the boy that goes out”. She continued to refer to a young boy being out. The deceased referred to someone down the end, suggesting by her actions that she was referring to the end of the corridor in which her room was located. Ms Wade asked the deceased where the person sat in the dining room and the deceased indicated that the person to whom she was referring usually sat a couple of tables away from her. The deceased again referred to the young boy at the door, motioning with her hands as if to indicate that she was pushed and said “He pulled me. I don’t know what happened to the boy after”.
Medical Evidence
The deceased’s last health care plan (dated 27 November 2018, two weeks after the accident) noted alerts for “high falls risk”, “severe cognitive impairment”, and “physical, verbal and wandering behaviours”. At that stage she was displaying confusion as to place and time and wandering behaviour.
Dr Van Diemen said that, like other dementias, vascular dementia affected higher cognitive functions such as reasoning, planning, judgement and memory. It was often associated with mood changes.
Dr Van Diemen noted that, based on medical records, prior to the incident the deceased could communicate her needs to staff and enjoyed participating in SCC activities. Staff still trusted her to use a hot iron. Periods of agitation were common in dementia patients. However, based on the patient notes referring to agitation and other conduct by the deceased in early November, it was difficult to comment on the degree to which there had been a recent increase in agitation or a recent deterioration in the deceased’s condition. Ms Wade’s evidence indicated that the deceased was still very independent in the activities of daily living. There was nothing to show that she was at the end stage of cognitive decline.
Dr Van Diemen gave evidence that, within seconds of a trauma (such as a fall), adrenaline was generated, increasing a person’s pain threshold (and reducing their experience of pain) for at least half an hour and up to an hour after the trauma. A physical injury and associated pain could severely impact on cognition. Similarly, an unfamiliar environment, such as a hospital environment, was cognitively challenging for any older person, particularly an older person with pre-existing cognitive impairment. She noted that, in the emergency department on 13 November 2018, staff had been unable to obtain a history from the deceased; she had been incapable of communicating at that point. Dr Van Diemen observed:
This may not reflect a rapid advancement in Sheila Capper’s dementia but rather that being acutely unwell in a foreign environment has enhanced the effect of her dementia on her capacity to communicate, in addition to the effects of acute pain. In the acute hospital setting it is not unusual for a patient of advanced age to have a fluctuating level of communication and/or cognition (that may or may not be directly related to their pre-existing medical conditions).
Representations of the deceased
The Crown sought to adduce evidence of six occasions when representations were made by the deceased.
(a)Occasion 1: Approximately 20 seconds after she fell to the ground, the deceased stated to Ms Chaplin “He pushed me, he pushed me”.
(b)Occasion 2: Approximately 60 seconds after she fell to the ground and as the accused walked out of the laundry room and passed her, the deceased stated to Ms Norris words to the effect of “that man did it” or “he did it. He did it. That man”.
(c)Occasion 3: Between about three minutes and eight and a half minutes after the deceased fell to the ground, the deceased said to Ms Bowman “I can’t believe what happened”. When asked “do you remember how were you on the floor?” the deceased replied “I don’t remember”.
(d)Occasion 4: About three to eight minutes after the deceased fell to the ground, as Ms Wilcox treated her injuries, the deceased stated, “why did it happen to me?” and “why this me?”.
(e)Occasion 5: Approximately 25 minutes after the deceased fell to the ground, while Ms Wilcox was dressing the deceased’s elbow, Ms Ashley had a conversation with the deceased in which the deceased stated “I don’t know. I don’t know”.
(f)Occasion 6: Approximately two and a half to five and a half hours after the deceased fell to the ground, at the Hospital the deceased made the following representations to Ms Wade.
(i)The deceased stated that she “could not believe what had happened to her and that she couldn’t believe this”.
(ii)In response to a question from Ms Wade, the deceased referred to a “different door”. Following questions about the door, the deceased said “he was out”.
(iii)The deceased clarified that “he” was not a staff member.
(iv)When asked if she had been pushed or if someone had hurt her, the deceased stated “the door, the door, he was out, the boy was out, the boy that goes out”.
(v)The deceased continued to refer to the “door” and the “young boy being out”.
(vi)When asked if another resident had been there when it happened, the deceased referred to someone “down the end”, pointing as if to indicate down the end of the corridor in which her room was located.
(vii)The deceased continued to refer to a “new door”, motioning with her hands as if to indicate that the door had been pushed.
(viii)The deceased stated that “he banged the door”.
(ix)The deceased articulated verbally and indicated by gesture that, at mealtimes, the person to whom she was referring sat a couple of tables away from her in the dining room.
(x)The deceased again referred to the young boy and the door and motioned with her hands as if to indicate that she had been pushed.
(xi)The deceased stated “He pulled me. I don’t know what happened to the boy after.”
The accused submitted that, as preliminary matters, it was necessary to consider the relevance of any representations and the competence of the deceased.
Relevance
The accused submitted that the representations were not relevant.
Section 55 (1) of the Evidence Act provides:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The representations made on occasions 1 and 2 do address a fact in issue. The deceased stated that she was pushed, that the accused did something that caused her fall and/or her injuries and that the person responsible for her condition was the accused.
It is ambiguous as to whether the representations made on occasions 3 and 4 illuminate any fact in issue. They appear to be expressions of shock at the deceased’s injuries, although the statement “I can’t believe what happened” may refer to the fact that the deceased did not expect to fall and whatever it was that caused her to fall came as a surprise to her.
The representation made on occasion 5 does not refer to any fact in issue.
If accepted, apart from (i), the representations made on occasion 6 could rationally affect a fact in issue, i.e. that the accused had done something that had caused the deceased to fall and injure herself. Individually and/or in combination, the deceased appears to have been representing that her fall had something to do with a door that was new or different (keypad entry had recently been installed for the laundry door), that she had been pushed or pulled (or the door had been “banged”) by a “young boy” (the accused was significantly younger than the deceased) who was not a staff member, and that the culprit occupied a room further down the hallway (as did the accused) and sat a few tables away from her usual seat in the dining room (as did the accused).
The representations made on occasions 1, 2 and 6 are relevant to the assessment of the probability of the existence of a fact in issue in the proceedings and, while borderline, I will treat the statement “I can’t believe what happened” as satisfying the low threshold for relevance.
Competence
Section 13 (1) provides:
13Competence—lack of capacity
(1)A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)—
(a)the person does not have the capacity to understand a question about the fact; or
(b)the person does not have the capacity to give an answer that can be understood to a question about the fact;
and that incapacity cannot be overcome.
Section 61 of the Evidence Act extends the operation of the competence requirements in s 13(1) to prior representations sought to be adduced under s 65. It provides that:
61Exceptions to the hearsay rule dependent on competency
(1)This part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of section 13 (1) (Competence—lack of capacity).
(2)This section does not apply to a contemporaneous representation made by a person about the person's health, feelings, sensations, intention, knowledge or state of mind.
NoteFor the admissibility of contemporaneous representations, see s 66A.
(3)For this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact.
There is a presumption of competence: s 61(3). The presumption is displaced if the court is satisfied of the contrary on the balance of probabilities: R v GW [2016] HCA 6; 258 CLR 108 at [14] (in relation to the mirror presumption in s 13(6) of the Evidence Act).
Competency focuses on a representor’s capacity to understand a question about a fact and give a comprehensible answer to the question about the fact. Capacity must be considered at the time “when the representation was made”: s 61(1).
A confused or irrational answer to a question about a fact may lead to the conclusion that the representor lacked the capacity either to understand the question or to give a comprehensible answer: The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144 at [20].
The accused submitted that the presumption of competence was displaced because, when considered as a whole, the representations made by the deceased were contradictory, confused and irrational, consistent with the deceased suffering from severe cognitive impairment by reason of dementia, as documented in patient notes made before and after the incident. The accused noted that, when the deceased spoke of a door to Ms Wade, Ms Wade could not understand what the deceased was saying, although she was very familiar with the deceased’s language difficulties. Further, the deceased was affected by severe pain and, once conveyed to hospital, was disorientated by her unfamiliar surroundings.
I am not satisfied that the presumption of competence is displaced in relation to any of the representations.
The representations made at SCC on occasions 1 and 2 were volunteered; they were not guided by a question that may have been misunderstood. The representations were quite clear and rational. Although the deceased was affected by significant pain, her pain threshold would have been raised by adrenaline.
At the hospital, the deceased was disorientated and unable to communicate a history to hospital staff. She was in severe pain. However, she did communicate with her daughter. Having regard to the deceased’s limited vocabulary and capacity to express herself, the representations made at the hospital were rational and most were consistent, albeit there was inconsistency in relation to the important aspect of pulling, pushing or banging of the door. Although Ms Wade could not understand the reference to the door, it does make sense in the context that the laundry door had recently been changed to keypad entry.
Section 65 of the Evidence Act
The hearsay rule in s 59 of the Evidence Act provides:
59The hearsay rule—exclusion of hearsay evidence
(1)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.
(2)For this part, a fact mentioned in subrule (1) is an asserted fact.
(3)For the purposes of deciding under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Section 62 (1) defines “previous representation” as “a previous representation that was made by a person who had personal knowledge of an asserted fact”.
Section 65 provides for an exception to the hearsay rule where the person who made the previous representation is unavailable to give evidence. It states:
65Exception—criminal proceedings if maker not available
(1)This section applies in a criminal proceeding if a person who made the 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 happened 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.
…
In relation to each of the representations that the Crown seeks to rely on, the Court must consider the following questions.
(a)Is the deceased unavailable to give evidence about the asserted fact?
(b)Was the representation about “an asserted fact”?
(c)Was the representation made “when, or shortly after” the asserted fact happened?
(d)Was the representation made “in circumstances that make it unlikely that the representation was a fabrication”?
The serious consequences of admitting a hearsay statement inculpating an accused in circumstances where the accused will have no opportunity to cross-examine the maker of the statement emphasises the need for close attention to the conditions of admissibility prescribed by s 65 (2) rather than making an “impressionistic evaluation”: Sio v The Queen [2016] HCA 32; 259 CLR 47 (Sio) at [60]–[61].
Unavailability
There was no dispute that the deceased was a person who was not available to give evidence about the asserted fact. The deceased died on 4 December 2018.
Section 4(1)(a) of Part 2 of the Dictionary to the Evidence Act provides that:
4Unavailability of people
(1)For this Act, a person is taken not to be available to give evidence about a fact if—
(a)the person is dead; or
…
Representation about an asserted fact
It is necessary to consider each representation which asserts a relevant fact sought to be proved: Sio at [56].
I am satisfied that most of the representations concern an asserted fact.
In relation to occasion 1, the asserted fact was that “he” (inferentially, the accused) pushed the deceased, causing her to fall.
In relation to occasion 2, the asserted fact was that “that man” (inferentially, the accused) was responsible for the deceased’s fall (or, at least, was responsible for her injuries).
It cannot reasonably be supposed that the statements made on occasion 3 or 5, or the questions asked on occasion 4 asserted a particular fact. The statement “I can’t believe what happened” that was made on occasion 3 refers to a state of mind rather than an asserted fact. The distinction is discussed below in the context of s 66A of the Evidence Act.
In relation to the statements made on occasion 6, it can reasonably be supposed that the deceased intended to assert the following facts of which she had personal knowledge:
(a)the incident in which she was injured was associated with a “new door” or a “different door” (inferentially, the door to the laundry room, which had recently been changed to keypad entry);
(b)in the laundry room, a male did something to the deceased (pushed or pulled her) and/or to the laundry door that was related to the deceased’s fall and injury; and
(c)the male was the accused (the person who “was out”, who was a “young boy” relative to the deceased, who was not a staff member, who occupied a room “down the end” of the corridor and who sat a couple of tables away from the deceased in the dining room).
Representation made when or shortly after the asserted fact happened
Section 65(2)(b) recognises that the spontaneity of an utterance tends to make it unlikely to be a fabrication. In Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 of s 65 (2) the Full Court stated at [48]:
[T]hat 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.
In that case, the Full Court considered that a lapse of five days did not satisfy the requirement of spontaneity in s 65(2)(b).
The representations made by the deceased on occasions 1 and 2 were made within a minute of the incident and readily qualify as having been made “shortly after the asserted fact happened”.
As to the representations made to Ms Wade at the hospital, it is less clear that they were made “shortly after the asserted fact happened”. It is debatable whether they were made under the “proximate pressure” of the incident. One of the difficulties is that the timing of each representation that was made at the hospital is unclear.
I am not satisfied that the representations that were made at the hospital were sufficiently spontaneous to fall within the s 65(2)(b) exception.
Made in circumstances that make it unlikely that the representation was a fabrication
The Court must be affirmatively satisfied both that a representation was made at or shortly after the asserted fact happened and in circumstances (presumably, circumstances additional to the circumstance of relative contemporaneity with the asserted fact) that make it unlikely that the representation was a fabrication.
Relevant circumstances include objective circumstances that, of themselves, tend to negative motive and opportunity to lie or are otherwise likely to mean that the asserted fact truly occurred: Sio at [64] and [72]. Relevant circumstances may also include the fact that a representation was made in the context of other representations that contradict or undermine the representation under consideration. As the High Court stated in Sio at [71]:
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.
The accused submitted that, where used in s 65 (2), the word “fabrication” is not confined to intentional concoction but extends to a representation reflecting an honest mistake. In support of the submission, the accused relied upon observations of Sperling J in R v Mankotia [1998] NSWSC 295; 108 A Crim R 189, Miles AJ in R v Kuzmanovic [2005] NSWSC 771 at [13], Ipp JA (with whom Grove and Dowd JJ agreed) in R v Kazzi [2003] NSWCCA 241; 140 A Crim R 545 at [14]–[15] and Brett J in Tasmania v Dolega [2016] TASSC 65; 26 Tas R at [19].
I am far from convinced that the word “fabrication” extends to circumstances where the representor may have been honestly mistaken. “Fabrication” suggests deliberate concoction. In s 65(2)(b) the word has been chosen in preference to the expression “reliable” that is used in s 65(2)(c) and (d). However, I will assume for the sake of argument that “fabrication” does include circumstances where a representor is honestly mistaken.
In relation to the representations made on occasions 1 and 2, the following circumstances make it unlikely that the representations were deliberately untrue or resulted from a mistake.
(a)The degree of proximate pressure; the representations were made almost immediately.
(b)The representations were volunteered, not elicited.
(c)Despite her dementia, the deceased could communicate straightforward matters. She was in pain, but her pain threshold would have been elevated by adrenaline and she had not yet received medication to relieve pain that may have impacted on her mental acuity.
(d)The deceased was in a familiar environment and speaking to familiar people who were responsible for her care and well-being. Any confusion associated with the statements made at the hospital does not necessarily imply that the deceased may have been confused when making the representations on occasions 1 and 2.
(e)There is no known reason for the deceased to have lied about the accused’s involvement.
Consequently, I am satisfied that the representations made on occasions 1 and 2 were made in circumstances that make it unlikely that they were fabricated, either in the sense that they were deliberately untrue or in the sense that they reflected an honest mistake.
Contemporaneous representations and s 66A
In the alternative to the application under s 65, the Crown sought to admit the representations made on occasions 1 and 2 under s 66A of the Evidence Act. The competence requirement attaching to other previous representations does not apply to contemporaneous representations about a person’s “knowledge”: s 65 (2) Evidence Act.
As I have found that the deceased was competent when she made all the representations, it is not necessary to decide the alternative application. However, in case I am wrong about the deceased’s competence, I will deal briefly with the alternative application.
The Crown submitted that the representations made to Ms Chaplin and Ms Norris were contemporaneous representations about the deceased’s knowledge of what had occurred during the incident and were admissible as evidence that what the deceased said about her knowledge was in fact true, i.e. that what she said had actually happened.
Section 66A is an exception to the hearsay rule in s 59 of the Evidence Act.
Section 66A must be considered in the context of its location in Division 3.2.2 of the Evidence Act (ss 62–68), which defines “previous representation” (s 62), contains exceptions to the first-hand hearsay rule (ss 63–66A), and sets out procedural requirements relating to hearsay exceptions (ss 67–68).
Section 62 provides:
62Restriction to first-hand hearsay
(1)For this division (other than in subsection (2)), a previous representation is a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2)A person has personal knowledge of an asserted fact if the person’s 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 someone else about the fact.
(3)For section 66A (Exception—contemporaneous statements about a person’s health etc), a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation mentioned in the section was made.
The exceptions to the hearsay rule in ss 62–66 each address “a previous representation … about an asserted fact”, enlivening the reference in s 62(2) to “knowledge… based on something that the person saw, heard or otherwise perceived …”
However, s 66A makes no reference to the need for knowledge to be acquired in this way. Rather, s 66A provides:
66AException—contemporaneous statements about a person’s health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
When s 66A is read with s 62 and understood in the context of the other exceptions, it is clear that s 66A provides an exception where the representation concerns the representor’s perception of their physical well-being or state of mind (using that expression broadly to include their feelings, sensations, intention and knowledge of matters). It applies when the fact in issue is the representor’s state of mind rather than a fact that is external to the representor.
As stated by Odgers in Uniform Evidence Law (Thomson Reuters, 16th ed, 2021), often a representor’s statement about their physical health or state of mind refers to the reasons (as believed by the representor) for their physical feelings or state of mind, but any such reference is incidental. The representor’s statement does not provide any evidence to substantiate the asserted cause of their state of mind; it is simply evidence that the state of mind exists at that point in time.
This approach is consistent with the opinion expressed by Spigelman CJ in R v Hannes [2000] NSWCCA 503; 36 ACSR 72 at [480]. His Honour was considering the earlier s 72. In the case of the Evidence Act 1995 (NSW), s 66A was previously s 72. In relation to a written representation “must take Mark with me”, his Honour assumed that the representation could be treated as evidence of the writer’s intention at the time of writing but opined that the representation was inadmissible to establish as an objective fact that “Mark” was someone other than the writer.
The statements made on occasions 1 and 2 were not statements about the deceased’s physical well-being or state of mind. They were not statements about her “knowledge” in the sense that that term is used in s 66A; for example, she was not asserting that “when I was lying in the corridor I knew at that time that the deceased had pushed me”. Consequently, they are not admissible under s 66A to prove what actually happened.
The tendency evidence application
Pursuant to s 97 of the Evidence Act, the Crown applied to lead evidence to prove that the accused had tendencies:
(a)to be frustrated at the behaviour of other SCC residents; and
(b)to act upon that frustration by displaying physical aggression.
The Crown relied primarily on tendency (b), as it incorporated tendency (a).
The Crown submitted that the six incidents referred to at [18]–[23] supported the tendencies.
Admissibility of Tendency Evidence
Like any evidence, to be admitted, tendency evidence must be relevant in the sense that, if it was accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue: s 55 (1) Evidence Act.
When determining relevance, it is assumed that the tribunal of fact will accept the evidence: IMM v The Queen [2016] HCA 14; 257 CLR 300.
Section 97 of the Evidence Act (the tendency rule) provides that:
97The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party's intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
…
In the present case, there is no issue that the Crown has given appropriate notice.
Evidence may inform a fact in issue if it may support an inference that, on the occasion of the alleged offence, the accused thought or acted in accordance with a tendency to think or act in that way. In Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 (Vojneski) at [47], the plurality (Murrell CJ and Refshauge J) stated:
In criminal proceedings, tendency evidence is often called to show that, at the time of the alleged offence, the accused tended to think or act in a particular way that makes it more likely that he or she committed the offence because the behavioural or mental tendency of the accused conformed to the offending behaviour. Or, to put it another way, evidence may support an inference that the accused tended to behave or think in a particular way which makes it more likely that the accused did so at the time of the offence.
(citations omitted)
As stated by Gageler J in In Hughes v The Queen [2017] HCA 20; 236 CLR 338 (Hughes) at [70]:
Applied to evidence of past conduct, tendency reasoning is no more sophisticated than; he did it before, he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.
Under the tendency rule, a relevant tendency is a tendency to “act in a particular way” or “have a particular state of mind. In Vojneski at [44] the plurality stated:
A tendency under s 97 of the Evidence Act is a tendency “to act in a particular way or to have a particular state of mind”, i.e. a tendency to think or act in a relatively distinctive (“particular”) way. To qualify as “tendency evidence”, evidence of one or more “tendency incidents” must show a behavioural or mental “tendency” and must not be a random collection of incidents that say nothing “particular” about the offender’s thinking or behaviour.
Logically, as pointed out by Burns J in R v Johnston [2012] ACTSC 89; 6 ACTLR 297 at [45], if behaviour is relatively ordinary, significant repetition of the behaviour by the accused may support the existence of a tendency.
In other words, when considering whether thinking or conduct shows that the accused tended to think or act in a “particular” way, it may be important to consider both the distinctiveness of the thinking or behaviour and the frequency with which the accused has thought or behaved in that way.
The proposed evidence must have “significant probative value”. “Probative value” is defined in the Dictionary to the Evidence Act as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”, i.e. the degree to which it may inform a fact in issue.
“Significant probative value” is not defined in the Evidence Act. In Hughes at [41], a majority of the Court (Kiefel CJ, Bell, Keane, and Edelman JJ) identified two relevant considerations as:
(a)the extent to which the evidence supports the tendency; and
(b)the extent to which the evidence makes more likely the facts making up the charged offence.
In Vojneski at [54] the plurality said:
… in practice, when considering whether tendency evidence has “significant probative value” it is important to examine the similarities between the tendency incidents. A high degree of similarity between tendency incidents may show a strong and distinctive tendency which, because of its strength and distinctiveness, may be more influential in the context of fact-finding.
In McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 the judgments of the plurality (at [32]) and Edelman J (at [36]) stressed that, to have significant probative value, tendency evidence must evidence behaviour that is distinctive, inter alia having close regard to context.
If evidence has significant probative value, then the court must then consider s 101(2) of the Evidence Act, which provides:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
…
(2)Tendency evidence about a defendant … that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
As I observed in R v Kitsun [2016] ACTSC 212, evidence that an accused has a tendency to think or act in a relatively disreputable way is inherently prejudicial. However, the reference in s 101(2) is a reference to unfair prejudice; the risk that the fact finder will misuse the evidence by relying upon the evidence to reason in an improper way or be diverted by the inflammatory content of the evidence, which cannot be adequately addressed by direction.
Prior to the introduction of the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT), s 101 stated that, for tendency evidence to be admissible, the probative value of the evidence must “substantially” outweigh any prejudicial effect. This is no longer the case, “reducing the height of the hurdle the Crown must overcome to secure the admission of tendency evidence”: Taylor v The Queen [2020] NSWCCA (per Bell P).
In summary, when deciding whether evidence is admissible to establish an asserted tendency, a court must consider the following questions:
(a)Has the tendering party identified a s 97 tendency (a tendency to think or act in a “particular” way)?
(b)Are the incidents relied upon (individually or in combination) capable of establishing the asserted “particular” tendency (having regard to distinctiveness and degree of repetition)?
(c)What is the relevant “fact in issue” in the proceedings?
(d)If the factfinder accepted that the incidents occurred and showed the asserted “particular” tendency, do the incidents have significant probative value; could they be important or of consequence in proving or disproving the existence of the fact in issue?
(e)What unfair prejudice (risk of misuse) attaches to the tendency evidence?
(f)Does the probative value of the tendency evidence outweigh any prejudicial effect, considering the availability of directions that may mitigate the prejudice?
Consideration of application to adduce tendency evidence
The proposed tendency evidence fails to satisfy the requirements for admission.
The asserted tendency (in effect, to become frustrated at the behaviour of other SCC residents and respond to that frustration by displaying physical aggression towards the resident/s causing the frustration) may meet the description of a tendency to think and/or act “in a particular way”.
If so, the tendency/s reflect relatively ordinary thinking and conduct rather than quite distinctive thinking and/or conduct. As the incidents relied upon do not establish frequent acts of aggression in response to frustration, the existence of the asserted tendency/s is not bolstered by evidence of repetition. In other words, the evidence of the incidents provides only limited support for the existence of a “particular” tendency.
I am prepared to accept that, with the exception of the incident of October 2018 (involving statements by a doctor, not thinking or conduct of the accused), in combination the incidents may be capable of establishing the asserted tendencies. If so, they do not provide strong evidence and they do not evidence a very distinctive or consistent tendency.
The fact in issue in the proceedings is whether the accused deliberately pushed the deceased. The asserted tendency is a tendency to become frustrated about residents in general (or, at least, the residents the subject of past expressions of frustration). There is no evidence that the tendency had been displayed previously towards the deceased. The evidence is neutral as to whether, in the hallway or inside the laundry room, the accused became frustrated by the deceased, thereby giving rise to a likelihood that the tendency was sparked.
In those circumstances, the incidents could not be of significant probative value; they could not be important or of consequence in proving the existence of the fact in issue.
The accused submitted that, if the evidence was admitted, there was a danger of unfair prejudice to him that was not outweighed by the probative value of the evidence. Adverting to examples of unfair prejudice that were identified by Bell P in Taylor v The Queen [2020] NSWCCA 355 at [122] (xxiii), the accused submitted that the evidence involved a plethora of factors that might distract, involved minor incidents to which disproportionate weight might be attached, and might evoke an emotional or irrational response in the factfinder.
As I have found that the evidence does not meet the requirements of s 97, it is not necessary to decide the s 101 issue. However, I note that the second of the “dangers” identified by the accused goes more to the question of “significant probative value” than danger of unfair prejudice. I consider that any danger of unfair prejudice is minor and could be virtually eliminated by adequate directions.
Sections 135 and 137 of the Evidence Act
As I am satisfied that the exception to the hearsay rule in s 65 of the Evidence Act applies to the representations made on occasions 1 and 2, I must consider whether they should be excluded for discretionary reasons.
The accused submitted that, if the representations were admitted, there was an unfair prejudice because he could not cross-examine the deceased, the only source of direct evidence about what occurred in the laundry room.
Sections 135 and 137 of the Evidence Act provide:
135General discretion to exclude evidence
The Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
…
137Exclusion of prejudicial evidence in criminal proceedings
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 defendant.
The probative value of the representations made on occasions 1 and 2 is high; they directly implicate the accused as in some way responsible for the deceased’s fall and/or injuries.
The prejudice that was identified is inherent in any evidence of a previous representation that is admitted pursuant to s 65(2) such that, of itself, the prejudice would rarely operate to neutralise the exception. Further, the prejudice can be addressed by appropriate directions about the inability to cross-examine: Bufton v The Queen [2019] VCA 96 at [61].
In Prasad v The Queen [2020] NSWCCA 349 the Court rejected the proposition that evidence that had been admitted under s 65(2) of the Evidence Act 1995 (NSW) should have been excluded under s 137 because the accused was unable to cross-examine the representor. Macfarlan JA (with whom Wilson and N Adams JJ agreed) stated:
[113]A difficulty for the appellant in the present case is that his trial was a judge-alone trial in relation to which it could be assumed, even more readily than in the case of a jury, that the judge would comply with appropriate directions as to the use of the evidence. …
[114]In my view the appellant has not shown that the prejudice he would suffer by being unable to cross examine the complainant was other than what could ordinarily be expected from the admission of important evidence under s 65. …
The probative value of the evidence substantially outweighs any prejudicial effect.
Had I been satisfied that the representations made on occasion 6 were otherwise admissible, I would have excluded them under s 135 and/or s 137 of the Evidence Act on the basis that their probative value was outweighed by the danger of unfair prejudice to the accused. The representations were elicited through Ms Wade’s questions at a time when the deceased would have been significantly disorientated and cognitively impaired by the combined effect of underlying dementia, the hospital environment, extreme pain (and, later, the influence of strong painkilling medication).
Orders
The orders of the Court are:
(1)Pursuant to s 65(2) of the Evidence Act, the Crown may adduce evidence of the previous representations made by the deceased on “occasion 1” and “occasion 2”.
(2)Otherwise, the applications are refused.
| I certify that the preceding one hundred and twenty-eight [128] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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