R v Campbell (No 2)
[2019] ACTSC 105
•28 November 2018.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Campbell (No 2) |
Citation: | [2019] ACTSC 105 |
Hearing Date: | 26 – 28 November 2018. |
DecisionDate: | 28 November 2018. |
Reasons Date: | 30 April 2019. |
Before: | Loukas-Karlsson J |
Decision: | See [46]. |
Catchwords: | EVIDENCE – Admissibility and Relevancy – Witnesses – hearsay – exception if maker unavailable - s 65(2)(b) and (d) of the Evidence Act 2011 (ACT) – reliability of representations – representations of an accomplice |
Legislation Cited: | Evidence Act 2011 (ACT) ss 65, 67, 165 |
Cases Cited: | Lai v R; Nguyen v R [2017] NSWCCA 263 Munro v The Queen [2014] ACTCA 11 R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 Sio v The Queen [2016] HCA 32; 259 CLR 47 Tasmania v Dolega [2016] TASSC 65; 26 Tas R 312 Walton v The Queen [1989] HCA 9; 166 CLR 283 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 |
Parties: | The Queen (Crown) Aaron Kenneth Campbell (Accused) |
Representation: | Counsel Mr M Fernandez (Crown) Mr J Moffett (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Number: | SCC 124 of 2018 |
Loukas-Karlsson J
Introduction
Aaron Kenneth Campbell (the accused) has pleaded not guilty to one count of contravening a family violence order, one count of unauthorised use of a prohibited weapon, one count of attempted aggravated robbery, one count of assault occasioning actual bodily harm, and one count of wounding.
The offences relate to an incident at the car park of a KFC outlet in Fyshwick. In short summary, Mr Carpenter, who was attempting to purchase methylamphetamine on behalf of his housemate Ms Hehir, organised a drug deal with Ms Collier. Mr Carpenter and Ms Hehir drove to the KFC with a friend, Mr Beaver, and his father. On the Crown’s case, Ms Collier drove with Mr Holz and the accused to the drug deal. On arriving at the KFC, the Crown alleges that Ms Collier let Mr Holz and the accused out of the car.
As Ms Hehir approached the vehicle Ms Collier was in, a man jumped out from the bushes and attempted to push her into the car, and tasered her neck. The man then attempted to take her handbag, dragging Ms Hehir along the ground in the process, occasioning actual bodily harm.
Mr Beaver, seeing that Ms Hehir was in difficulty, attempted to assist. When he got close to the man, he was stabbed in the left abdomen. The man then ran from the scene. On the Crown’s case, Mr Holz did not participate in the offences.
The prosecution intended to call Mr Holz as a witness at the trial. A subpoena to Mr Holz was issued, but was unable to be served, as Mr Holz’s whereabouts had become unknown.
On 22 November 2018, the prosecution lodged a notice of intention to adduce evidence of a previous representation. On 23 November 2018, the prosecution lodged an application and an accompanying affidavit of Mr Brendan Donnelly, affirmed on 23 November 2018. The prosecution sought the following orders:
1.That the evidence of the representations made by [Mr] Holz contained within the Crowns’ Notice of Intention to Adduce Evidence of Previous representation filed concurrently with this application be admitted into evidence; and
2.Any other order that the Court deems necessary.
Consequently, the prosecution sought a ruling on the first day of the trial that a record of interview between police and Mr Holz be admissible in the trial pursuant to s 65(2)(b) or s 65(2)(d) of the Evidence Act 2011 (ACT) (the Evidence Act). The application was determined on a voir dire, along with another pre-trial application, after the jury was empanelled but before the Crown opened its case.
On 27 November 2018, I gave ex-tempore reasons in determining that the notice requirements imposed by s 67 of the Evidence Act had been complied with on this application.
On 28 November 2018, I determined that the relevant representations should not be admitted under s 65 of the Evidence Act. At the time, I reserved my reasons. I now provide those reasons.
Relevant Legislation
10. Section 65 of the Evidence Act states as follows:
65Exception—criminal proceedings if maker not available
(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a)was made under a duty to make that representation or to make representations of that kind; or
(b)was made when or shortly after the asserted fact 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.
NoteSection 67 imposes notice requirements relating to this subsection.
11. The unavailability of people is defined in cl 4 of Part 2 of the Dictionary to the Evidence Act as follows:
4 Unavailability 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
(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or
(c)the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
(d) it would be unlawful for the person to give the evidence; or
(e) a provision of this Act prohibits the evidence being given; or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person’s attendance, but without success; or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
Was the maker unavailable?
12. The affidavit of Mr Donnelly indicates the efforts undertaken by the prosecution to locate Mr Holz. It detailed that efforts to contact Mr Holz by the informant, the subpoena and process team at the Australian Federal Police and by Mr Donnelly had been unsuccessful since 23 January 2018. Efforts to contact Mr Holz had escalated in October and November 2018 in the lead up to the trial date.
13. Mr Donnelly was cross-examined on the voir dire about the efforts made to locate Mr Holz. Mr Donnelly gave evidence that he had not contacted the defence in an attempt to locate the witness.
14. The prosecution provided evidence that the accused through his associates has intimidated Mr Holz into avoiding service and giving evidence at the trial. The prosecution submitted that all reasonable steps had been taken to locate the witness without success.
15. Counsel for the accused submitted that police had made insufficient attempts to locate the witness at an address in Karabah, the last known address of the witness. Further, counsel submitted that evidence that associates may have intimidated the witness was an irrelevant consideration on this application. Finally, counsel submitted that a further reasonable step would have been for the prosecution to contact the defence regarding Mr Holz’s whereabouts.
16. I accept that the prosecution have taken all reasonable steps to locate the witness. In my view, this condition has been met.
The representations relied upon
17. The Crown relied on three core representations, made up of specific questions and answers from the record of interview between police and Mr Holz.
First Representation
18. The first representation was described by the prosecution as: “Aaron Campbell and Ms Collier picked up Mr Holz from his house and drove him to the KFC”.
19. The specific questions and answers relied on by the prosecution for this representation where as follows:
Q50 All right. Can you tell me about what happened tonight or last night?
AYep. Um, well two mates came and picked me up and asked me to come for a drive to go get on, like you know. And I said, “Yeah.” And then I thought to myself, “Why do they want me to go with them?” Well, um, because the girl I was with and the bloke, well the girl that was attacked tonight, um, like the two girls, they’re friends. I don’t know any of them or any of the people there tonight. So, um, my mate asked me to come for a drive, I went for a drive. The girl was – we had to wait around the corner because this girl was like paranoid and she wouldn’t hand over the drugs if it wasn’t girl to girl, like if any males were around. So, um, we waited around the corner, um, then we started walking – walking close to KFC and they’re closed because we waited a fair while. Um, me mate said, “Wait here.” And I heard a girl scream and then I’ve ran over to the car and he was attacking a girl
…
Q53Sort of
AYeah. I got invited to come for a drive, um, they were going to shout me out of it, like in return
…
Q56Oh, just – just to clarify what you’ve said, okay. So your mates came and picked you up, it was a girl and a bloke, your mates?
AYep.
Q57And you went for a drive to get on and they were going to shout you?
AYeah.
…
Q85Yep
AI’m friends with the both of them. And I thought he just like wanted me to go for a drive to sit around the corner with him, you know, because he’s a chicken, a chicken shit sometimes. So I thought, oh, yeah, that’s easy, an easy shout, just sit around the corner with him and wait.
…
Q88Yeah. So what time did they come around to your place?
AOh, shit, probably eleven thirty, eleven.
…
Q95[Ms Collier] and Arron came around?
AAaron, yep. Said, “Come for a drive and you’ll get a shout, we’ll shout you.”
…
Q125 Yep. And do you remember what route or what route you took?
AUm, um, Canberra Ave, when we got to Quix she turned right, ah, dropped us around the corner near – near, um (indistinct) I think it might be called, near the fruit market. And then she went back around to KFC to meet the girl. And me and Aaron have walked from the Fyshwick markets, around to KFC to the front of KFC, um, hid in the bushes at the front, because we weren’t meant to be seen. Sat down waiting for the girl to go. But, um Azza told me, “wait here.” And then five seconds after that I heard the girl squeal. And I popped out of the bushes and he’s like attacked her, just fucking in to her he was. It wasn’t – I don’t know if it was planned between [Ms Collier] and Aaron, what was going to go down, but um, we were just – all I knew we were there to “get on”.
Q126 Yep.
AI got a free shout if I went.
…
Q409 Yeah, yep.
ANone of that was really spoken to me like, I was just like, “come for a drive”.
Q410 Yeah
A“And we’ll shout you.”
…
Q416 I have just a few more mate, you’d mentioned a few times that you’ve gone from home, sorry to take you back to the start, but you’ve gone from home after they said – or Aaron said, “Come along.” How did that conversation take place, was it in person or was it ---
AAh, in person.
Q417 Okay. And at whose house?
AAt my house.
Q418 Okay. So how did they get there?
AUm, they drove there, she didn’t’ come in, just he did and said, “Come for a drive, great and I’ll shout you.”
Q419 Okay. So how long was Aaron at your house for?
AOh, like minute twenty.
Q420 Okay. And did you know they were coming before that?
ANo.
…
Q433 So your brother was home as well?
AYeah. He said to me, “Grab a shirt, bro, come for a drive and you’ll get a shout.”
Second Representation
20. The second representation was described by the prosecution as “Aaron Campbell was present at the KFC on the night at the time of the relevant offences”.
21. The specific questions and answers relied on by the prosecution for this representation where as follows:
Q54 Yep.
AUm, me and my friend we waited around the corner, about fifteen, twenty minutes, walked back around to the car, me mate said, “Wait here near the bushes.” He walked over to the car and started attacking a girl. I don’t know her name or who she was or nothing, yeah, but he just started attacking her with a taser and all that shit.
…
Q60 So you were waiting around the corner, you waited for about fifteen or twenty minutes.
A With my friend, yeah.
Q61 Yep. You heard a scream, so you went around the corner ---
AOh, nuh, sorry. Um, we waited around the corner, me and my mate for about fifteen minutes.
Q62 Yep.
AThen we made it back over to KFC. Um, he told me, “Wait here.” And then he went over to the car and that’s when I heard the scream.
…
Q66Yep. Okay. So to clarify, you went around the corner and waited fifteen to twenty minutes.
A Yeah.
Q67 And then your mate went back to the car, that’s when you heard the scream?
A Yep.
…
Q77 Yeah, what can you tell me about him?
A Well, I’ll tell you his name straight up, it’s Azza, Azza Campbell.
Q78 Yep
A Have you heard of him, they call him Doggie.
…
Q80 And what did you say he’s known as?
A Doggie.
Q81 Dog, Doggie.
A Doggie, yeah. Azza Campbell, they call him.
…
Q108 Okay. So about eleven thirty pm last night, they came around, it was [Ms] Collier and Aaron Campbell, who is also known as Doggie.
A Yep
…
Q125 Yep. And do you remember what route or what route you took?
AUm, um, Canberra Ave, when we got to Quix she turned right, ah, dropped us around the corner near – near, um (indistinct) I think it might be called, near the fruit market. And then she went back around to KFC to meet the girl. And me and Aaron have walked from the Fyshwick markets, around to KFC to the front of KFC, um, hid in the bushes at the front, because we weren’t meant to be seen. Sat down waiting for the girl to go. But, um Azza told me, “wait here.” And then five seconds after that I heard the girl squeal. And I popped out of the bushes and he’s like attacked her, just fucking in to her he was. It wasn’t – I don’t know if it was planned between [Ms Collier] and Aaron, what was going to go down, but um, we were just – all I knew we were there to “get on”.
…
Q141 Yep.
A Bushes. Um, we stood behind there for like two minutes until she went. As I said, um, waiting, he’s come around and just fucking into her – I heard the girl squeal.
…
Q168 [Ms Collier’s] dropped you and Aaron off and then you and Aaron have walked down to some bushes near the front of KFC and you’ve waited there.
A Yeah, like that’s a loop, like round the block.
Third Representation
22. The prosecution described the third representation as: “Aaron Campbell was the person who emerged from the bushes first and proceeded to commit the offences.
Q51 And then what happened?
AUm, she just started hitting into her, yeah, I’m not going to piss in your pocket, he had a taser, um, I wasn’t aware of them having a taser or a knife. But he was into the girl, oh shit the gear, to tell you the truth I shit gear, tried to jump in the backseat of the car and hid. Then, um, a group of blokes went over with dogs and shit – dogs and weapons, and then, um, I heard a police siren, like that second. And, um, you guys rocked up. And me mate, he was gone, he was gone and then I looked around and I noticed, um, the bloke- the bloke got stabbed.
…
Q54 Yep.
AUm, me and my friend we waited around the corner, about fifteen, twenty minutes, walked back around to the car, me mate said, “Wait here near the bushes.” He walked over to the car and started attacking a girl. I don’t know her name or who she was or nothing, yeah, but he just started attacking her with a taser and all that shit.
…
Q63 Right
ASo he’s gone over and just attacked her, I heard her scream, that’s when I ran over. Um, seen there was about four, five probably six blokes there and a big dog.
…
Q68 So you went around and you saw your mate---
A Attacking her.
Q69 --- was into the girl.
A Yeah.
Q70And he had a taser, did he have – yeah, so he had a taser and then – so then you jumped in the car.
A Yep
…
Q87 Yep
AAnd then (clicks fingers) he was just fucking – he just changed and started attacking, attacking the bird, the girl.
…
Q128 Yeah
ABut, um, yeah, he just fucking went crazy. I didn’t even realise he was going to go crazy, but he just told me to wait here and then I heard a sheila squeal. And I’ve jumped behind him and fucking he’s into the girl.
…
Q170 And you’ve waited at the bushes for about five or ten minutes.
A Yeah, and that should have been enough time for them to do the deal and her to go.
Q171 Yep. And then Aaron’s told you to wait.
A Yep, and I thought he was just going to go jump in the car and pick me up.
…
Q188 Okay. So tell me everything, everything that you can remember between when you heard the scream and when you got in the car.
AI just remember he had her against the car, I seen the flash, that would have been the taser. He had her up against the car, I’ve jumped straight in the car because I did, I shit myself. And I’ve just seen five big fellows coming to help her, and they were her mates apparently. And they got hold of Doggie, Azza, Aaron Campbell, and that’s when he must have stabbed him.
…
Q194 Okay. So when – you went around the corner and you said he was into her, he had her up against the car.
A Yep.
…
Q197 When you say he had her up against the car, what do you mean by that?
A Um, against the car by the throat, by the shirt.
…
Q199 And you saw a flash?
A Yeah, which was a taser.
Q200 Yep. How did you know it was a taser?
A Because of the electricity, like the electric blue flash.
Q201 Okay, So did you see the taser or you just saw the blue flash?
A Um, I just seen the flash.
Q202 Yep
A And the sound of snap and crackly sound.
Q203 Yep
A Do-do-do. Oh, I can’t ---
Q204 Yeah, that’s all right.
A And then straight after that, just four or five blokes just – just come rushing to help her.
Q205 Can you described the female that you saw?
A Ah, tall and blonde. I’ve never seen her before or know her.
…
Q207 So when you say that Aaron had this other girl up against the car, what part of the car?
A Ah, the driver’s – ah the front passenger seat – ah, the door.
Q208 The front passenger?
A The front passenger door, yep.
Q209 Okay.
AOh, she must have just hopped out and that’s when he’s grabbed her and put her against the car.
Q210 Right, okay
AAnd showed off his taser thing, expecting her to give – give up or give – hand over whatever she had but she didn’t and she just screamed and then five blokes come rushing like.
…
Q225 You came around and you saw that Aaron had a ---
A Had hold of her.
Q226 --- they were facing each other but he had – he was pushing up against her on the front passenger side of the car?
A Yep.
Q227 You saw a flash and heard a crackling noise and from that assumed there was a taser.
A Yep
…
Q248 Oh, with the girl?
AOh, because we were together and then he’s just said, “wait here.” He’s ran around, around the bush.
…
Q250 Okay, you saw him go to the car?
A Yeah, yeah, yeah.
…
Q252 But you also said Aaron was holding the girl up against the passenger side front window.
A Yep, yep.
…
Q276 Yep. Okay. So what did you see?
A Um, just him attacking her.
Q277 Okay
A With a taser.
Q278 Yep
ADragged her, dragged her like into the middle of the driveway, by then then blokes were already there, they’ve grabbed him.
Q279 Yep
AAnd he must have pulled his knife out and just stabbed him. And I’ve seen that while I was sitting in the car.
…
Q285 Okay, so he’s – he’s dragged this girl into the driveway and then these blokes have come ---
A Yeah, yeah, he’s had her up against the car.
Q286 --- and then, yep.
A And then she wouldn’t let go of her bag or something.
Q287 Yep
A So he’s dragged her along the ground and he’s just like dragging a mat.
…
Q289 Okay. And did you – did you – you saw that?
A I seen him drag, yeah, I seen him, yeah.
…
Q397 You mentioned before that the blonde girl had a bag.
A A handbag yeah.
Q398 Yep. What sort of – what was the deal with that, were they – was she just holding like ---
A Just yeah, just like a girl ---
Q399 Yep.
A ---any, any young chick with a handbag.
Q400 Did you – did you say before that Aaron was ---
A I thought he was trying to rip it off her.
Q401 ---trying, yeah, he was trying to rip it off her
A Yeah, he didn’t get it either.
…
Q413 Yeah. And what kind of – what did the bag look like?
A Her bag?
Q414 Yeah.
AUm, standing there with the police officer, probably an hour or two, um, just looking at it, it was aqua, a metallic aqua colour. And I only know that because I’ve seen it sitting on the ground while the dude was taking photos.
Submissions
23. The prosecution relied upon both s 65(2)(b) (where the representation is made “shortly after” the asserted fact happened and where the circumstances make it “unlikely that the representation is a fabrication”) and s 65(2)(d) (where the representation is against the maker’s interests and in circumstances that make it likely the representation is reliable) for the admissibility of the first and second representations.
Prosecution Submissions – First and Second Representations
Section 65(2)(b)
24. The prosecution submitted that it was common ground that the representations were made shortly after the asserted fact.
25. The prosecution submitted that it was unlikely the representation was a fabrication because there was no reason for Mr Holz to minimise his own later conduct or involvement in the offence, as on the evidence, only one person was involved. Further, the prosecution submitted that Mr Holz expressed shock in the record of interview as to what had transpired, which makes it less likely that he would put his mind to fabricating the identity of the assailant. Further, the prosecution submitted that Mr Holz’s version of events places an independent person at the scene, being Ms Collier, who as a third party could refute any fabrication.
Section 65(2)(d)
26. The prosecution submitted that the representations as a whole are against Mr Holz’s interest as he made admissions that he was picked up by Mr Campbell and Ms Collier for the purposes of obtaining methylamphetamine.
27. In relation to reliability, the prosecution submitted that the representations were reliable as they were made shortly after the events took place, meaning there was no issue regarding the reliability of Mr Holz’s recall. The prosecution submitted that there is no suggestion in the record of interview that he was under the influence of alcohol or drugs which may have disturbed his recall or perception of events. Further, the prosecution submitted that the likelihood of unreliable identification on the basis of misidentification is remote given Mr Holz’s close relationship with the offender, and his close proximity to him that night. Finally, the prosecution submitted that, for the same reasons mentioned above at [25], the representations were unlikely to be fabricated.
Prosecution Submissions - Third Representation
28. The prosecution relied only on s 65(2)(b) (where the representation is made “shortly after” the asserted fact happened and where the circumstances make it “unlikely that the representation is a fabrication”) for the admissibility of the third representation.
Section 65(2)(b)
29. The prosecution submitted that there is independent corroborated evidence that two males jumped from the bushes, one of whom was Holz, and the other was the person who committed the offences. The person who fled from the scene was the person who committed the offences, whilst Mr Holz was found in the car. On that basis, given it is clear that Mr Holz did not commit the offences, the prosecution submitted that there is no motive for Holz to fabricate the identity of the offender on the basis of protecting his involvement. Further, the prosecution submitted that Mr Holz knew that the offender fled the scene at the time the representation was made, and was aware that three other people at the scene would have been reasonably aware of the movements of the offender, and could refute any fabrication. The prosecution distinguished this from the situation in Sio v The Queen [2016] HCA 32; 259 CLR 47 (Sio), where there were no independent witnesses.
30. Finally, the prosecution submitted that it was reasonable to assume that the shock expressed by Mr Holz in his record of interview was genuine, and as a result unlikely that he turned his mind to fabricating the identity.
The Accused’s Submissions
31. The accused submitted that Mr Holz acknowledged that he was at the scene of the offence for the facilitation of a drug deal, but completely removed himself in the record of conversation from the offences that occurred subsequently. The accused submitted that evidence of an accomplice in this manner could not be reliable. The accused referred to Tasmania v Dolega [2016] TASSC 65; 26 Tas R 312 at [21], where Brett J stated that the High Court in Sio identified that inculpatory evidence by an accomplice was “inherently” unreliable.
32. The accused further submitted that the “shock” referred to by the prosecution was a “characterisation” made by the prosecutor, and that “shock” does not appear in the record of interview itself. Finally, the accused submitted that the independent person at the scene, being Ms Collier, had refuted that the accused was present at the time of the offences. In those circumstances, the accused submitted that I should dismiss the application.
Consideration
33. It is appropriate to first outline certain principles relevant to the operation of s 65(2) of the Evidence Act.
34. The general approach to the operation of s 65(2) was outlined in Sio, where an application to admit evidence under s 65(2)(d) was considered. In that case, the High Court determined that, in seeking to adduce a representation to prove a particular relevant fact in the case, that representation must be identified with particularity. A compendious approach to representations is not permissible. The circumstances of that particular representation can then be considered in order to determine whether the particular conditions of admissibility are met (at [57]-[58]). These circumstances may reveal that, notwithstanding the hearsay nature of the representation, the “dangers which the rule seeks to prevent are not present” (at [63], citing Walton v The Queen [1989] HCA 9; 166 CLR 283 at 293).
35. Subsequently, in Lai v R; Nguyen v R [2017] NSWCCA 263, the NSW Court of Criminal Appeal followed the approach set out in Sio in rejecting a compendious approach to certain representations and noting the proper approach of a trial judge should be to “examine each representation separately in order to assess whether the circumstances of each particular representation make it likely that that particular representation is reliable” (at [88]). In that case, the trial judge was in error by making an assessment that was “largely impressionistic”, including finding that the evidence of the witness was “sincere” and “forthright”.
36. In Munro v The Queen [2014] ACTCA 11, the Court of Appeal considered an application under s 65(2)(c) in the context of a representation to a police officer, where the maker acknowledged an obligation to tell the truth. Refshauge ACJ and Penfold J determined that there was a “real question” as to whether such circumstances were themselves sufficient to establish reliability for the purposes of s 65(2)(c). In particular, their Honours noted at [6]-[12]:
(a)Imposing a legal obligation is not always sufficient to compel the truth or produce reliable testimony;
(b)Reliability relates not only to an intention to tell the truth but a capacity to do so at the relevant time and whether the relevant knowledge was ever held;
(c)Evidence which by its nature may be unreliable (referring to the examples of identification evidence or impaired health of the maker in s 165(1)(b) and (c) of the Evidence Act, respectively) is not made more reliable if it is given to a police officer;
(d)These circumstances may make the representation more reliable, but this assumes there are “no countervailing incentives to try to hide the truth” (at [10]); and
(e)The legislature did not expressly stipulate such circumstances as being presumptively or necessarily circumstances which produce a “highly probable” representation.
The First and Second Representations
37. As to the first limb of the provision, I am satisfied that the representations were made shortly after the asserted fact happened: s 65(2)(b).
38. The second limb of s 65(2)(b) requires that the representation in question is made “in circumstances that make it unlikely that the representation is a fabrication”. The operation of s 65 was considered by the High Court in Sio, as discussed above, with particular references to s 65(2)(d). Both s 65(2)(b) and s 65(2)(d) operate in a similar fashion. The focus of (d) is on the reliability of the representation and the focus of (b) is on whether the representation is a fabrication.
39. I am not satisfied that the first and second representations were made “in circumstances that make it unlikely that the representation is a fabrication.” Nor am I satisfied that they were “made in circumstances that make it likely that the representation is reliable”. Sections 65 (b), (c) and (d) all refer to “circumstances”. The Full Federal Court in Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 stated that the ‘circumstances’ meant all the circumstances in which the statement was made, including consistency with other evidence in the case, and evidence of what the maker of the representation said on other occasions. Similarly, in R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603, the NSW CCA held that although the circumstances of the representation are relevant, these include other consistent and inconsistent representations of the person who made the representation.
40. More recently, as emphasised by the High Court in Sio, the evaluation of the reliability of the representations must be made, having regard to the circumstances that the representations were those of an accomplice in the commission of the crimes. In Sio the Court observed at [65]:
Evidence by an accomplice against his or her co‑offender has long been recognised as less than inherently reliable precisely because of the perceived risk of falsification. Statements by an accomplice afford a classic example of a case where a "plan of falsification" may be expected to be formed, given the obvious interest of one co‑offender to shift blame onto his or her accomplice, especially where the circumstances also include the opportunity to seek to curry favour with the authorities. That the evidence of accomplices is evidence apt to be unreliable by reason of a motive to shift blame to the co‑offender is recognised by s 165(1)(d) of the Evidence Act, which expressly treats, as "evidence of a kind that may be unreliable", evidence:
"given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding".
41. In my view, a question mark necessarily arises over the representations in these circumstances under both ss 65(2)(b) and (d). The representations in question are the representations of an accomplice.
42. The first and second representations were therefore not admitted in this case.
Third Representation
43. The third representation was sought to be admitted under s 65(2)(b) by the prosecution. For similar reasons as discussed with regard to the first and second representations, the third representation was not admitted.
44. As the High Court in Sio underlined 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” (at [60]).
45. The serious consequences of the successful invocation of s 65(2)(b) emphasise the need for compliance with the conditions of admissibility. In my view, the conditions were not met in this case. The High Court underscored the importance of the “preservation of clarity, good order and fairness in the conduct of criminal trials”. For these reasons the third representation was not admitted into evidence in this case.
Conclusion
46. Accordingly, on 28 November 2018, I dismissed the prosecution’s application, as I found that the evidence of the representations did not fall within ss 65(2)(b) or 65(2)(d) of the Evidence Act.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 30 April 2019 |
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