R v Bufton (Ruling No 1)
[2019] VSC 232
•11 April 2019 (Revised 3 May 2019)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0283
| THE QUEEN | |
| v | |
| JANICE JOY BUFTON | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2019 |
DATE OF RULING: | 11 April 2019 (Revised 3 May 2019) |
CASE MAY BE CITED AS: | R v Bufton (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 232 |
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CRIMINAL LAW – Murder – Evidence – Hearsay evidence – Maker of representations not available – Whether evidence admissible pursuant to exception to hearsay rule – Whether evidence should be excluded due to danger of unfair prejudice – Evidence admissible – Evidence Act 2008 s 65(2)(b), (c), ss 135, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Armstrong | Mr J Cain, Office of Public Prosecutions |
| For the Accused | Mr T Danos | Irwin & Irwin Law |
HIS HONOUR:
Introduction
The accused faces a charge of having murdered her former partner by deliberately running him over with a motor car on the driveway of her property in country Victoria. Benjamin Weston (‘Weston’), an eye witness to the event, made a statement to the police on the day of the event as to his observations of the fatal incident and related matters. The account provided by the witness was damaging to the claim made by the accused that the collision was accidental. The day after making the statement, the witness took part in a video-recorded walk-through and interview (‘the walk-through’) with police at the scene of the alleged crime.
Weston is now deceased. Weston died on 8 October 2018, before the committal hearing was held in this case. Therefore, the defence had no opportunity to test the evidence of Weston in court.
The prosecution filed and served a hearsay notice pursuant to section 67 of the Evidence Act 2008 (‘the Act) in respect of the evidence of the witness. The notice specified section 65(2)(b) and (c) as the relevant exceptions to the hearsay rule upon which the prosecution intended to rely.
The accused seeks the exclusion of the entirety of the statement and walk-through of Weston. The defence outline challenged the contention that the representations in question come within the requirements of the exceptions relied on, and in the alternative relied on sections 135 and 137 of the Act as warranting exclusion of the representations.
Facts
The accused is charged with the murder of Colin Snooks (‘Snooks’) on Monday 30 October 2017.
Snooks met the accused in 2008 while they were both working for a community project in Stawell. Snooks separated from his wife in January 2016, and went to live with the accused at her property at 221 Fyans Road in Fyans Creek shortly afterwards. He took with him a caravan in which he had previously travelled around Australia with his wife. The accused’s property was a rural property with a long driveway leading to her home.
A sometimes volatile relationship developed between Snooks and the accused during 2016. There were periods of separation and a number of occasions on which Snooks complained to police that the accused had frequently assaulted him.
Commencing just before Christmas 2016, Snooks lived in his caravan for some months at Green Hill Lake Reserve in Ararat. He there befriended Weston, a self-described ‘grey nomad’. Weston was 71 years old and retired.
On multiple occasions in 2016 and 2017, Snooks indicated his desire to leave the relationship with the accused and remove his caravan from her property.
For several months leading up to October 2017, Snooks resided again with the accused at Fyans Creek.
On 12 or 13 October 2017, Snooks met with his wife Carol to discuss divorce proceedings between them. On 24 October 2017, Snooks and the accused met Carol Snooks by chance in Ballarat. On 26 October 2017, Snooks again met with Carol to discuss divorce papers. He told her that the accused was angry after the Ballarat meeting, and that he intended to take his caravan to Green Hill Lake Reserve the next week.
On 29 October 2017, Weston rang Snooks to inform him that he had returned to Green Hill Lake Reserve. While on the phone, he heard Snooks and the accused arguing, and the call ended abruptly.
The next morning, Monday 30 October 2019, Snooks and Weston drove to Ararat in Snooks’ red dual cab Holden Colorado utility and Snooks went to the bank while Weston waited for him. They then drove to Stawell where Snooks visited his solicitor. After a further trip to Halls Gap they drove together to the accused’s property. It was Snooks intention to collect his caravan, which was still there. They arrived at the premises at about 12.30 pm.
On the account of Weston as set out in his statement, they drove up the driveway to the house. Snooks turned the car around and backed up to the caravan which was parked in the driveway to the right of the house. As they got out of the vehicle, the accused came out of the house, came up to them, and started yelling abuse at Snooks. She told him he was not taking the van. He told her he was. A long argument ensued in which she accused Snooks of infidelity to her with his ex-wife and criticised his behaviour towards her. Snooks said little in reply. While the argument was proceeding, Weston tried to attach the caravan to the vehicle, without success.
The accused then reached inside the open driver’s side door of the utility and removed the keys from the ignition.
She then yelled at Weston, attacking him for being present. Weston then decided to leave, announcing that decision to Snooks. He started walking along the driveway towards Fyans Road. Snooks followed him and caught up, asking Weston to call 000 and speak to the police. Weston dialled the number and then handed his phone to Snooks. Weston remained where he was as Snooks walked further along the driveway towards the road.
Weston noticed the accused getting into Snooks’ vehicle and starting it. She drove it around the rear of her house. A short time later, she came back around into the driveway, pausing momentarily near the caravan. Revving the engine hard, she then drove along the driveway in Weston’s direction at a speed he estimated as ‘at least 40 km/h’. He jumped off the driveway to avoid being struck. The vehicle continued on in the direction of Snooks, who was further up the driveway towards the road. Snooks was facing away, and still talking on the phone.
Weston yelled, ‘Watch out!’ He said that Snooks turned around with a look of horror on his face. He leapt off the driveway to his right. The utility swung over to the right and ran ‘straight over the top of him’. The bonnet of the utility hit Snooks and he went straight under the wheels. Weston saw no brake lights. The car skidded and came to a stop, with Snooks lying on his right side facing the front. He was unconscious.
Weston indicated in his statement that he ran up to the scene and yelled at the accused, ‘You stupid bitch! You’ve killed him’. He told the accused to get back in the car and back it up. Weston was then able to pull Snooks partially out from under the car. He described further aspects of the aftermath, in which he spoke to the 000 operator, and the accused provided CPR to Snooks.
The time stamp in the 000 recording indicated the collision took place at 12.50 pm. In the recording, before Weston could be heard asking the accused to back up the vehicle, the accused could be heard to say, ‘…he ran in front of us’. Weston said ‘This is fucking murder, he didn’t run in front of ya’.
Police arrived at the scene at 1.13 pm. Snooks was deceased. The accused told the police, ‘He jumped out in front of me. I couldn’t get out of the way’.
Specialist police arrived from the Major Collision Investigation Unit (MCIU) and the Homicide Squad. A comprehensive examination of the scene was conducted, and a scale plan prepared.
Detective Leading Senior Constable Hardiman of the MCIU arrived at the scene at 6.30 pm. He examined the scene and later carried out a reconstruction of the collision. He reached the following main conclusions:
a.The area of impact was on the southern grass verge approximately 93 metres from the front gate;
b.The area of impact was approximately one metre after the commencement of skid marks[1] on the grass caused by braking, which ran for 22.2 metres in total;
c.At the commencement of the skid marks, the vehicle was travelling at a minimum speed of 45 km/h;
d.After the track of the driver’s side wheels left the gravel driveway for the grass verge on the southern side, the vehicle’s tyre marks showed three distinct changes in direction over the next 53 metres to the point of impact. These were a right hand steering manoeuvre from the driveway onto the southern grass, a movement left slightly back towards the driveway, and finally, a right steering manoeuvre towards the southern grass away from the driveway.
[1]In his evidence at the committal hearing at page 57, the witness stated the marks were technically known as anti-lock braking marks rather than skid marks. I will call them skid marks for convenience.
A typed statement was taken from Weston by a uniformed policeman from Stawell within hours of the event. It was signed by Weston at 4.10 pm on 30 October 2017.
Commencing at 11.10 am the next day, Weston took part in a walk-through of the scene at Fyans Creek with Detective Sergeant Solomon of the Homicide Squad. The procedure continued until 11.27 am. During the procedure, Weston elaborated on, and in some respects, slightly modified the account he had given in the statement.
The accused was interviewed by police on 30 and 31 October 2017. She claimed that it had been her intention to drive past Snooks to the front gate and to close the gate to try to make him speak to her about their relationship. On legal advice, she declined to comment in response to questions about the circumstances of the collision. She did say, however, that it was not her fault.
The post mortem examination of Snooks revealed multiple fractures and other injuries, including fractures to the right tibia, fibula and wrist.
The hearsay notice
The prosecution filed a hearsay notice under s 67 of the Evidence Act 2008 (‘the Act’) in respect of previous representations made by Weston in his statement and ‘video re-enactment’. The notice indicated that the prosecution sought to rely on s 65(2)(b) and (c) of the Act by way of exception to the hearsay rule.
The notice stated:
The substance of the previous representations is
a.As to observations of the accused when she attended at Green Hill Lake Reserve at Ararat:
b.As to the termination of a telephone conversation with Colin Snooks on 29 October 2017; and
c.As to the events of 30 October 2017 prior to and during his attendance at 221 Fyans Rd, Fyans Creek.[2]
[2]Hearsay Notice [6].
Law
Section 59 of the Act provides:
59 The 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) Such a fact is in this Part referred to as an asserted fact.
(2A)For the purposes of determining 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.
In the Notes following that provision, a number of specific exceptions to the hearsay rule are set out. One of these is section 65 of the Act.
Section 65 of the Act relevantly 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.
(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 –
…
(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probable that the representation is reliable; or
(d) was –
(i)against the interests of the person who made it at the time it was made;
(ii) made in circumstances that make it likely that the representation is reliable.
Legal principles
As noted by Kaye JA in his most comprehensive and helpful ruling in the matter of DPP v Asling (Ruling No 2),[3] sections 65(2)(b) and (c) have been discussed in a number of decisions of appellate courts including by the Full Court of the Federal Court in Conway v The Queen (‘Conway’)[4] and in Williams v The Queen (‘Williams’),[5] the New South Wales Court of Criminal Appeal in R v Ambrosoli (‘Ambrosoli’)[6] and Harris v The Queen (‘Harris’)[7], and by the Victorian Court of Appeal in Azizi v The Queen (Azizi’).[8]
[3][2017] VSC 38.
[4](2000) 172 ALR 185 (‘Conway’).
[5](2000) 119 A Crim R 490 (‘Williams’).
[6](2002) 55 NSWLR 603 (‘Ambrosoli’).
[7](2005) 158 A Crim R 454 (‘Harris’).
[8](2012) 224 A Crim R 325 (‘Azizi’).
In addition, there are other more recent decisions of note, including that of the High Court of Australia in Sio v The Queen (‘Sio’),[9] and those of the Court of Appeal in Asling v The Queen (‘Asling’)[10] and DPP v Clarke, Stanley, Wells & MW (‘Clarke’).[11]
[9](2016) 259 CLR 47 (‘Sio’).
[10][2017] VSCA 132 (‘Asling’).
[11][2017] VSCA 115 (‘Clarke’)
Section 65(2)(b), imposing as it does a temporal requirement on the occurrence of the fact relative to the making of the representation, was considered by the Court in Conway to have its origins in the common law doctrine of res gestae. The addition of the words ‘shortly after’, however, was, as the Court stated, a ‘significant departure’ from that doctrine.[12]
[12]Conway (n 4) [123].
The phrase ‘shortly after’ is not defined in the Act. In Williams, the Full Court of the Federal Court stated:
[47]Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase, ‘shortly after’. As noted by Sperling J in Mankotia, at [10], s 65(2)(b) ought not be regarded as simply importing a test of:
…reliability at large. It is a narrower test…[I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial.
[48]For these reasons, it would be a mistake, in determining whether a statement has been made ‘shortly after’, to over-emphasise such matters as whether the events in question were ‘fresh’ in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact…[13]
[13]Williams (n 5) [47] – [48] (citations omitted).
That the above passage represents the rationale behind the use of the phrase ‘shortly after’ has been confirmed in other decisions.[14]
[14]Ambrosoli (n 6); Harris (n 7); DPP v Asling [2017] VSC 38.
In Harris, the Court of Criminal Appeal was concerned with the admission into evidence by the trial judge, in a prosecution for manslaughter, of a statement made by the deceased almost precisely 24 hours after he had been struck to the head by the appellant. It was argued on behalf of the appellant that ‘shortly after’ meant ‘immediately after’, and that it had not been open to the trial judge to find the representation had been made ‘shortly after’. That contention was rejected by Studdert J, with whom Grove and Whealy JJ agreed. As he put it:
No attempt has been made in the decided cases to prescribe the words ‘shortly after’ by the passing of any defined period of time. Each case has to be considered having regard to its own particular circumstances. For example…a statement made by a person recovering consciousness five days after an event may well be considered to have been made ‘shortly after’ that event.
I have come to the conclusion that it was open to the judge in the circumstances of the present case to determine that what the deceased told the police was conveyed ‘shortly after’ the incident he described.[15]
[15]Harris [39] – [40].
As to the precise ambit of the ‘circumstances’ as the word is used in section 65(2)(b) and (c), the position now seems to be clear.
In Ambrosoli, it was determined that the circumstances upon which the provisions focussed were the circumstances of the making of the previous representation. Mason P, with whom Hulme and Simpson JJ agreed, said:
It would therefore appear that R v Mankotia, Conway and R v Williams are at one in:
·focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and
·excluding evidence tending to only prove the asserted fact.
In my view this is a correct approach to s 65(2)…[16]
[16]Ambrosoli (n 6) [34] – [35] (citations omitted).
It has been accepted, however, that the ‘circumstances’ include previous, or subsequent statements or conduct of the person who made the representation, or other events or circumstances, whenever occurring, to the extent to which they reflect on the reliability of the circumstances of the making of the particular representation.[17]
[17]Ibid [36]–[37]; Azizi (n 8) [50]; Sio (n 9) [69]–[70].
The law, then, is that in determining the circumstances in which a representation was made for the purposes of s 65(2)(b) or (c), a court is not permitted to have regard to whether or not the representation in question is consistent with other evidence touching on the subject matter of the representation. As was stated by the Court of Appeal in Clarke:
Although the authorities permit a court to have regard to other previous representations, or other matters to the extent that they bear upon the circumstances in which the impugned previous representation was made, they do not permit a court to take into account other evidence which tends only to address the asserted fact.[18]
[18]Clarke (n 11) [80].
In respect of section 65(2)(c), no temporal connection between the representation and the occurrence of the asserted fact is required, but the requirement that the circumstances ‘make it highly probable that the representation is reliable’ is an ’onerous one’.[19]
[19]Conway (n 4) [145]-[146].
Prosecution submissions
The prosecution filed written submissions and made oral submissions in Court.
In satisfaction of the requirement of the authorities to provide sufficient particularity of the representations relied on, Mr Armstrong, for the prosecution, provided to the Court and the defence at the commencement of the oral hearing, a marked up copy of the statement of Weston delineating 12 representations sought to be proved under one of the exceptions to the hearsay rule.[20] In many cases the numbered representation was in fact a series of connected representations. For example, representation 10 encompassed Weston’s account of the entirety of the evidence in which the accused is alleged to have driven Snooks’ vehicle from the back of the house before running down Snooks. This portion of the statement contained a large number of separate representations. For convenience, all of the individual representations encompassed by the numbered representations outlined were dealt with together.
[20]Marked up statement of Weston became Exhibit A on the pre-trial.
On the question of relevance, Mr Armstrong submitted that evidence of all of the representations of Weston was clearly and unarguably relevant. A number of the representations went to demonstrate the nature of the relationship between the accused and Snooks, and in particular, her domineering behaviour towards him. The bulk of the representations went directly to the events which occurred on 30 October 2017, leading up to, at the time of and following the collision in which Snooks died.
Mr Armstrong submitted that it cannot be disputed that the hearsay evidence sought to be admitted is first-hand hearsay.
In support of his contention that all of the representations were admissible under the exceptions to the hearsay rule contained in s 65(2)(b) and (c), Mr Armstrong took me to many of the authorities to which I have already referred in this ruling insofar as they explained the scope of the ‘circumstances’ to be considered under both parts.
Mr Armstrong sought the admission of all of the representations marked in the statement and those contained in the walk-through, which he characterised, in effect, as one representation, under one or other or both of s 65(2)(b) and (c). He submitted as follows:
(a)The link between the happening of the events described by Weston and the representation he made is undeniable. The statement was made on 30 October 2017, the very day of and within a few hours of the occurrence of the asserted facts. The video-recorded walk-through occurred less than 24 hours after the occurrence of the asserted facts. In the case of almost all of the representations, they clearly were made ‘shortly after’ the asserted facts occurred;
(b)Weston has no criminal history in any state or territory and was not criminally concerned in any way in the events;
(c)The statement and the walk-through were largely, if not entirely, consistent with each other;
(d)There was no apparent motive for Weston to have concocted or fabricated any of the representations he made. He had the appearance of simply being an eye witness recalling and describing what he had seen, shortly after the events;
(e)At the time Weston made the observations, it was broad daylight, there was no obstruction to his vision, and he was not affected by alcohol or any other substance;
(f)The representations were made when the events were very fresh in his mind, and on both occasions were made to a police officer, and in the context of an understanding he must have had that were he to say something false, it would expose him to the risk of prosecution. This makes it more likely the representations were reliable, and less likely that the representation were a fabrication;
(g)The representations made in both the statement and the walk-through were consistent with the 000 recording, which makes it even more unlikely that the representation were a fabrication;
(h)The bulk of the representations should be considered to fulfil the requirements of s 65(2)(b). Those which do not should be considered to come within the requirements of s 65(2)(c).
Mr Armstrong submitted that insofar as the defence position was that I should take into account, in considering the requirements of s 65(2)(b) and (c), asserted inconsistency between Weston and the reconstructionist, Hardiman, as to the speed and path of the vehicle, that approach would conflict with the law as already set out.
In respect of s 137 of the Act, Mr Armstrong pointed out that in assessing the probative value of the evidence, the Court is required to assume the jury would accept the evidence, and therefore, take the probative value at its highest, accepting its credibility and reliability.[21]
[21]IMM v The Queen (2016) 257 CLR 300.
It was submitted that the evidence of Weston was highly probative, as he was an eye witness to the alleged offending. He made direct observations of events before, during and after the collision. In addition, his observations which touched upon the nature of the relationship between the accused and Snooks were also highly relevant.
Insofar as the ‘danger of unfair prejudice’ was concerned, Mr Armstrong referred me to a passage in Clarke, in which the Court noted:
Unfair prejudice does not arise from the tendency of evidence to further inculpate the applicant. A relevant prejudice lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use.[22]
[22]Clarke (n 11) [55].
The unfair prejudice pointed to in this case was essentially the lack of an ability in the accused to cross examine Weston. In this case, the jury would have access to a video of the witness providing his account to the police at the scene on the day following the events. The jury, therefore, would have the benefit of actually seeing the witness provide his account in context. In those circumstances, as it was submitted, the lack of cross-examination would have less effect than would ordinarily be the case.
Mr Armstrong submitted that any unfair prejudice flowing from the admission of the hearsay evidence could be cured by directions of law as to the use of the evidence and edits to the walk-through which may be necessary. In respect of directions of law, Mr Anderson referred me to those given by the trial judge in the matter of Asling, as referred to by the Court of Appeal in that case,[23] and given their imprimatur.[24]
[23]Asling (n 10) [44].
[24]Ibid [83].
Mr Armstrong submitted in the end that the probative value of the evidence of the representations in this case was not outweighed by the danger of unfair prejudice.
Defence submissions
Mr Danos, for the accused, did not take issue with the way in which the applicable law had been set out in the prosecution submissions. Nor did he dispute that all but the first two marked representations on the statement of Weston could be viewed as being made ‘shortly after’ the asserted facts occurred.
His objection to the admissibility of the impugned evidence was said to be made on two bases:
(i)The evidence of Weston is a fabrication;
(ii)The evidence of Weston should be excluded pursuant to either s 135 or s 137 of the Evidence Act 2008 as there has not been the opportunity to cross examine the witness and therefore there has been an inability to test it against other credible evidence which is at odds with it.
In developing the fabrication claim, Mr Danos focussed in particular on the assertion of Weston in his statement that Snooks was 150 metres further down the driveway from Weston himself when the collision occurred.[25] Mr Danos relied on other evidence, in particular the 000 call and the reconstruction by Hardiman, to demonstrate the falsity of the 150 metre claim.
[25]In fact, Weston said that after he had given his mobile phone to Snooks, he thought the latter would have been 150 metres further down from where he was standing. However, he then described the events leading up to the collision as the accused approached along the driveway. He did not specify the distance between himself and Snooks at the time of the impact.
Mr Danos refuted the contention of the Crown that this statement by Weston may be simply an understandable mistake. Indeed, Mr Danos went as far as to label that representation by Weston as a ‘bald-faced lie’.[26]
[26]Transcript 61.
When asked what explanation there would be for Weston to have deliberately lied about the matter, Mr Danos submitted that:
…clearly Mr Weston is the mate of Mr Snooks. In my submission he’s gone out of his way to try and help Mr Snooks in terms of putting my client in – to use his words, in the gun.[27]
[27]Transcript 60.
In support of his submissions, Mr Danos referred to two passages in Sio. The first of them was the following:
It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion.[28]
[28]Sio (n 9) [60].
Then, in seeking to support his contention that I was entitled to consider the possible untruthfulness of Snooks claim as to the distance, Mr Danos pointed out that the High Court stated:
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.[29]
[29]Ibid [71].
Mr Danos submitted that his passage, whilst related to reliability, applied equally to the question of the likelihood of fabrication.
When asked about the authorities relied on by the prosecution which were to the effect that the Court was not entitled to take into account, in assessing the circumstances going to either the unlikelihood of fabrication in s 65(2)(b) or the high probability of a reliable representation in s 65(2)(c), what other evidence indicates about the objective facts, Mr Danos submitted that that line of authority ran directly contrary to what had been said by the High Court in the passage in paragraph 71.
Mr Danos took issue with the proposition that the account of Weston had the appearance of being a well-organised one which actually fitted in quite comfortably with other evidence.
During the course of his submissions, I pointed out that the passage he had quoted from paragraph 71 of Sio was preceded by the following, which gave it context:
When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact.[30]
[30]Ibid [71].
When I pointed out to Mr Danos that the paragraph in Sio was not suggesting that the Court should look at all of the evidence in the case and work out which bits of evidence fit in with the representation and which bits do not, which was what he was asking me to do, he said:
No, I’m not with respect. What I’m asking your Honour to do is to look at Mr Weston’s statement and the assertion that he makes is that he’s 150 metres away and then see whether that is accurate or not accurate or fanciful.[31]
[31]Transcript 70.
In further submissions, Mr Danos sought to bring evidence of what was revealed by the 000 call about the possible inaccuracy of the 150 metre estimate within the description of what the Court of Criminal Appeal in Ambrosoli was referring to when it stated, in a passage accepted by the High Court in Sio:
…evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby.[32]
[32]Ambrosoli (n 6) [28]-[29].
In spite of being challenged with the apparent fact that his contention as to the use I could make of evidence apart from the evidence of Weston was contrary to the law as to the scope of the word ‘circumstances’ in s 65(2)(b) and (c), Mr Danos continued to submit that the observations of the High Court in Sio at paragraph 71 would permit me to use the evidence in that fashion.
When I sought to have Mr Danos address me as to what there was about the circumstances of the making of the representations by Weston which would raise the prospect of the representations he made in the statement and the walk-through being fabrications, Mr Danos started with the proposition that Weston had been a friend of Snooks who had been at the scene for the purpose of backing Snooks up. It was submitted that:
…he’s going to put things in a way in which is favourable – most unfavourable to Ms Bufton and that the inconsistencies between what he says in his statement and what he says in his walk through demonstrate that a number of aspects of his statement are inconsistent with each other and therefore clearly unreliable or fanciful.[33]
[33]Transcript 86.
He went on to submit that if the evidence of the reconstructionist, Hardiman, was to be believed, ‘then what Mr Weston has described has to be made up’.[34]
[34]Transcript 89.
Turning to sections 135 and 137 of the Act,[35] the danger of unfair prejudice upon which Mr Danos relied was solely the fact that Weston would be unavailable for cross examination, and therefore, unable to be confronted with what Mr Danos asserted were the discrepancies between his account and other evidence as to the events.
[35]In his oral submissions, Mr Danos seemingly relied more on section 135.
As to representations marked 1 to 9 on the statement, Mr Danos seemingly acknowledged that they did not suffer from the same shortcomings relative to the independent evidence as did the main representations as to the actual events of the collision. Nonetheless, Mr Danos still sought exclusion of the totality of the statement as it did not accord with his instructions.
In respect of the probative value of the impugned representations, Mr Danos was unwilling to concede that it was very high, preferring the descriptor ‘significant’.[36] A little later, he was prepared to concede the evidence in question was ‘clearly important’.[37]
[36]Transcript 99.
[37]Transcript 100.
However, in conclusion, Mr Danos maintained that the danger of unfair prejudice attaching to the evidence would outweigh its probative value.
Analysis
I accept, and indeed, there were no submissions made to the contrary by Mr Danos, that all of the impugned representations were about matters of relevance in the trial. They all concern the connection between Weston and Snooks, the relationship between Snooks and the accused, the movements of Snooks in the hours leading up to his death, and the events preceding, at the time of, and immediately following, the fatal collision.
I also find that all of the representations constitute first hand hearsay.
Focussing on the statement of Weston, all representations other than the first two concerned events which occurred either on the day the representations were made, or, in the case of representation 3, the day before. I am satisfied that representations 3 to 12 all meet the requirement of having been made ‘shortly after’ the asserted facts occurred. That this was so was not disputed by Mr Danos.
As to the circumstances in which representations 3 to 12 were made, to my mind, and largely for the reasons advanced by the prosecution, those circumstances make it unlikely that the representations were fabrications.
Weston was a friend of Snooks and was in his company in the hours leading up to, and at the time of, the fatal collision. He was an eye witness to the shocking event in which Snooks was run over by the accused. He made the observations he subsequently related in daylight hours, with no apparent hindrance to a clear view of the events. He was unaffected by alcohol or any other substance.
When Weston came to be making his statement to the police within a few hours of the death of Snooks, he knew full-well the great importance of the process in which he was involved, and of the pressing need to tell the truth about what he had observed at Fyans Creek, and anything else he knew which would throw light on the relationship between Snooks and the accused.
On the face of it, the statement he provided was a cogent-sounding, well organised account of the events he had witnessed only shortly before. Having made the statement, he was willing to sign the document, and sign a perjury jurat attesting to its truthfulness.
There was no apparent motive for Weston to have fabricated an account implicating the accused in the murder of Snooks. True it is that Snooks had been his friend, but there was nothing to indicate any ill-will by Weston towards the accused, and it would have been a grave and wholly unexpected thing for him to have falsely implicated her in a crime in the circumstances.
The next day, and still within 24 hours of the fatal collision, and with those events surely still fresh in his mind, Weston took part in the walk-through. This event was expertly handled by Detective Sergeant Sol Solomon, an experienced Homicide Squad investigator. Again, it must have been perfectly clear to Weston that he was about to take part in a very important process, and that it was imperative that he tell the truth.
Solomon introduced the process by saying to Weston, ‘…this is all…to clarify your statement so we have a full understanding of what you actually observed…to help us with our enquiries’.[38]
[38]Transcript of walk-through 2.
The walk-through gave Weston the opportunity to elaborate on and clarify the account he had given the day before in the statement. It had the considerable advantage of permitting him to point out where he, Snooks, and the accused, were at various times during the events. He took part in the procedure in interested and animated fashion.
Having viewed the walk-through myself, I believe Weston gave every indication of being a witness to the events the day before who was doing his best to describe the events, supplemented by the ability he now had to actually point out things at the scene.
To my mind, there were no substantial differences between the account Weston gave during the walk-through and the account he gave in the statement the day before.
I believe the fact of that walk-through and its general consistency with what he had said in the statement, together with the fact that it was another opportunity for Weston to fully appreciate the importance of being truthful, is something I am entitled to take into account in considering the ‘circumstances’ in which the representations in the statement were made.
Another aspect of the circumstances in which the representations in the statement were made was the fact that Snooks had been speaking on Weston’s phone to the 000 operator at the time of the collision, and that the call was still connected in the aftermath of the collision. Weston was aware of this fact, and would have expected that the 000 recording, to which he actually referred during the walk-through, would have recorded the sounds of the collision, and things said by himself and the accused in the aftermath.
As I have already indicated, I am satisfied that the circumstances in which representations 3 to 12 were made make it unlikely that the representations were fabrications. Indeed, I would go as far as to say that, to my mind, there is nothing whatsoever that would realistically raise the prospect of fabrication.
That is not to say, of course, that everything said in the representations was correct. That is not a requirement for admissibility, and indeed, is irrelevant to my task.
In respect of representations 1 and 2, the only ones which do not comply with the temporal requirement of s 65(2)(b), they would be admissible under the exception set out in s 65(2)(c). I am satisfied that these representations were made in circumstances that make it highly probable that they were reliable. They concerned events surrounding Weston first meeting Snooks, and, on two occasions, meeting the accused at the Ararat camp site, events about which it might be supposed there would be every reason to think the witness would have a good memory. The considerations pointing to the unlikelihood of fabrication in respect of representations 3 to 12 are also relevant in pointing to the high probability of reliability in respect of representations 1 and 2.
For completeness, I can indicated that representations 3 to 12 would also have qualified for admission under s 65(2)(c).
Turning to the representations contained within the walk-through, these all meet the temporal requirement in s 65(2)(b), and meet the description of having been made in circumstances which make it unlikely that they were fabrications.
The walk-through followed less than 24 hours after the making of the statement to the police. The witness had had another day to reflect on the compelling need to speak the truth, and to do his very best to recall the events. His presence at the actual scene of the alleged crime surely served to assist his memory.
For many of the same reasons relied on in reaching my conclusion about the representations in the statement, I find that those contained within the walk-through were made in circumstances that make it unlikely they were fabrications.
Mr Danos, in his submissions, asserted that the evidence of Weston was a fabrication. In support of that contention, he pointed in particular to the representation of Weston in the statement about Snooks being 150 metres away from him at a particular point, which, for the purposes of the submission, Mr Danos took to be the point at which Snooks took evasive action before being run over.
As indicated already, Mr Danos asserted that this representation was a deliberate lie, which he then relied on as colouring all of the other representations of Weston in the statement, and also in the walk-through.
It seemed that the sole basis for the assertion that the representation about distance was a lie, rather than a simple mistake, was its supposed inconsistency with evidence from the 000 call and evidence of the reconstruction. Mr Danos was adamant, seemingly on the authority of the High Court in Sio, that in determining the circumstances of the making of the representation, I was entitled to take into account these other items of evidence originating independently of Weston.
I do not accept those submissions, and consider, with all due respect to Mr Danos, that they fly entirely in the face of the law which I must apply.
The law would permit me to take into account other statements or conduct of Weston, or other events or circumstances, whenever occurring, to the extent to which they throw light on the ‘circumstances’ in which the representations were made, as the word ‘circumstances’ is to be understood. However, I am not permitted to look at other evidence, see whether it is consistent or inconsistent with the representations made by Weston, and then factor that into my determination of the ‘circumstances’. That is, in effect, what Mr Danos urged me to do. In my view, the law would not permit this. Nor do I think that the High Court in Sio said any such process was permissible.
In reality, Mr Danos did not draw my attention to anything about the circumstances of the making of the representations which would raise the prospect of their being either fabrications or unreliable.
The assertion that Weston was a friend of Snooks and would therefore have a motive to make false claims about the conduct of the accused lacks any support in logic or the evidence.
As for the claim that the representation in respect of the distance of 150 metres was a ‘bald faced lie’, for what it is worth, I do not consider there is any proper basis for that assertion. If the fact asserted in the representation ends up being inconsistent with other evidence, there would be no reason at all to suppose such variance would be the product of deliberate fabrication rather than honest mistake.
In any event, as I have stated, concentrating on the question of the accuracy or correctness of a representation is not what is required or permitted to be done when the circumstances in which the representation was made are being determined.
Sections 135 and 137 of the Act
No matter which of sections 135 and 137 is being considered, the very high probative value of the evidence of the impugned representations would make exclusion under either of the provisions exceedingly unlikely.
Weston was an eye witness to the events which led to the death of Snooks. His account, which I am required to assume the jury would accept as being both truthful and accurate, would go a substantial way to establishing that the accused, in a fit of apparent anger, deliberately ran Snooks over, thereby causing his death. In circumstances where the prosecution seeks to prove a deliberate running over and the defence relied on by the accused is an accidental running over, it is difficult to imagine evidence of stronger probative value than the evidence constituted by the impugned representations.
As against that, the only unfair prejudice pointed to by Mr Danos is the fact that if the hearsay evidence was admitted, the accused would be denied the opportunity of cross examining the witness, and confronting him with other evidence which may point to the apparent inaccuracy of some of the representations.
In my view, such unfairness can be addressed perfectly well by directions of law.
I note, also, that the fact of the hearsay evidence being permitted to be led in no way limits the ability of the defence to challenge the accuracy of the representations by contrasting them with other available evidence about the facts.
Conclusion
All of the representations in both the statement and the walk-through meet the requirements for admissibility under one or other or both of the exceptions to the hearsay rule contained in s 65(2)(b) and (c).
Insofar as exclusion is sought of all of the representations under ss 135 and 137 of the Act, in no case does the danger of unfair prejudice go anywhere near outweighing the very substantial probative value of the evidence.
The evidence is therefore admissible.
That is not to say that there may not be particular aspects of the statement or the walk-through that might be excluded for other reasons yet to be canvassed.
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