R v Carberry
[2018] ACTSC 83
•8 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Carberry |
Citation: | [2018] ACTSC 83 |
Hearing Date: | 8 March 2018 |
DecisionDate: | 8 March 2018 |
Before: | Murrell CJ |
Decision: | The application is allowed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – evidence – whether previous representations should be admitted – whether representations made in circumstances that make them unlikely to be a fabrication – whether representations made in circumstances that make it highly probable that they are reliable |
Legislation Cited: | Evidence Act 2011 (ACT) ss 65(1), 65(2), 137 and 192A |
Cases Cited: | Harris v R [2005] NSWCCA 432; 158 A Crim R 454 Munro v The Queen [2014] ACTSC 11 Youkhana v The Queen [2013] NSWCCA 85 |
Parties: | The Crown (Applicant) Robert Michael Carberry (Respondent) |
Representation: | Counsel Mr P Dickson (Applicant) Mr R Cavanagh (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Legal Aid ACT (Respondent) | |
File Numbers: | SCC 299 of 2017; SCC 300 of 2017 |
MURRELL CJ:
The accused is charged with offences that on 11 May, 2017 at Canberra he committed an aggravated robbery on his former de facto partner (the complainant) and he choked, suffocated, or strangled the complainant.
The complainant died in July, 2017. It is conceded that she is "unavailable to give evidence" within the meaning of the Evidence Act 2011 (ACT) (the Act).
Relying on ss 65(2)(b) or 65(2)(c) of the Act, the prosecution seeks a preliminary ruling under s 192A of the Act that the evidence of certain representations made by the complainant should be admitted at the trial.
The first representation was made to a neighbour within, at most, one hour of the events that are the subject of the charges. Second, the complainant made representations to police officers who attended the scene quickly, having been summoned by the neighbour. Third, there was a more formal police interview of the complainant at the Canberra Hospital about three hours after the alleged events.
In brief, it is the prosecution case that between 9:30 PM and 10:00 PM on 11 May 2017, the accused entered the complainant’s residence and demanded that she pay him $50.00. He pulled her to the ground, climbed on top of her and held a knife to her throat. He continued to demand money from her. He placed a hand around her throat and put pressure on the base of her throat. He removed her handbag, which contained cash and other personal items, and left the residence.
The accused resists a ruling that would allow the applicant to rely on the complainant’s representations under s 65(2) on two bases. First, the accused disputes the reliability of the representations. Second, the accused says that there is a “danger of unfair prejudice” to him within the meaning of s 137 of the Act if the representations are admitted without being tested through cross-examination.
The relevant provisions of the Act are as follows.
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—
(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.
…
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The prosecution contends that the representations in question fall within both ss 65(2)(b) and 65(2)(c) of the Act, i.e. they were both made shortly after the asserted facts happened and in circumstances that “make it unlikely” that they were a fabrication, and “in circumstances that make it highly probable” that the representations were reliable, respectively.
Reliability
The Court was taken to a number of cases which discuss these provisions.
In Youkhana v The Queen [2013] NSWCCA 85 at [55], the Court of Criminal Appeal held that the facts that previous representations were the subject of a jurat and were made knowing that police would investigate the asserted facts, were matters capable of supporting a conclusion that the representations were unlikely to have been fabricated. Similarly, in Munro v The Queen [2014] ACTCA 11 at [79] (Munro), the Court of Appeal held that the fact that representations were made subject to a jurat, when considered in combination with other factors in that case, meant that they were unlikely to be fabricated.
One consideration referred to in Munro was the absence of any apparent motive or reason to lie, although it was noted that this of itself was not determinative of the question.
In Harris v R [2005] NSWCCA 432; 158 A Crim R 454 at [44], Studdert J referred to a number of matters as informing the question of whether a representation was unlikely to be a fabrication, including, as relevant to this case, the facts that the representor’s version is not inherently unlikely; that it is a formal statement made to a police officer; and that it was subject to a jurat.
A number of decisions, notably Williams v The Queen [2000] FCA 1868 at [50]–[54], have observed that ss 65(2)(b) and 65(2)(c) emphasise the circumstances in which the representation was made; the question of whether it is unlikely that the representation is a fabrication (is reliable) is to be determined by reference to the circumstances in which the representation was made. Relevant circumstances may include matters such as those to which I have already referred, the spontaneity of the making of the statement, the contemporaneity of the statement with the asserted facts, and other matters. In determining reliability, one must have regard both to the circumstances of the particular case and the terms of the representation in question.
There is no doubt that the representations that are the subject of this application were made “shortly after the asserted fact happened” within the meaning of s 65(2)(b); the accused did not seriously contend otherwise. The representations were made no more than about three hours after the asserted facts happened.
As to the circumstances that inform the likelihood or otherwise that the representation made to the neighbour was a fabrication, the spontaneous and contemporaneous nature of the statement combined with the demeanour of the complainant at the time, and the fact that the neighbour observed injury consistent with the complainant’s allegations are circumstances that make it unlikely that the representation was a fabrication and highly probable that the representation was reliable.
Similar observations may be made of the representations to the police who attended the scene and the statement made to police at the hospital. Significantly, the representations made at the hospital were the subject of a jurat; they were made in a more formal situation, albeit that the statement was made from a hospital bed. The complainant must have realised that the police would fully investigate the truthfulness of her representations. These circumstances suggest that the representations made in the hospital were unlikely to have been a fabrication, and it highly probable that the representations are reliable.
The requirements of ss 65(2)(b) and 65(2)(c) are made out in relation to each of the representations in question. I note that the onus is on the prosecution to prove the matters in s 65 on the balance of probabilities. I am well satisfied that the prosecution has done so.
Danger of unfair prejudice
Each representation is of a high probative value; it informs the facts at issue in the proceedings in an important way.
The question is whether that high probative value is outweighed by the danger of unfair prejudice to the respondent. The Court is concerned to examine the danger of unfair prejudice because it is impossible to predict whether unfair prejudice will actually result.
Unfair prejudice means the danger of a jury misusing the material in question.
The accused says that there is a danger of unfair prejudice because he would be forensically disadvantaged by being unable to cross-examine on the representations. As the respondent’s counsel pointed out, in this case there is only one Crown witness to the central events and the prosecution case must stand or fall on what she says. In this case, that danger could potentially arise because the jury might give undue weight to untested assertions.
Second, the accused asserts that the evidence may have an irrational or emotional impact on the jury—perhaps because the police interview was conducted in a hospital environment while the complainant was bedridden.
On the other hand, the prosecution argues that the accused may be in a better position because the complainant's evidence is led through representations rather than directly. The prosecution says that the accused retains a right to give evidence and can give a contrary account if he chooses to do so in circumstances where the complainant is unavailable to provide information that might undermine that account or enable the prosecution to test the respondent's account.
It is, of course, true that the accused may give evidence. However, an accused person should not feel pressured to give evidence. There is no onus on an accused person to prove that he is not guilty. It is the experience of the courts that, in cases involving family violence matters where the prosecution relies upon one witness, an accused person is frequently not called and the defence case is run on the basis that the evidence of the critical prosecution witness is tested and a submission is made that the jury cannot be satisfied beyond reasonable doubt that that evidence is reliable. I accept that, for this reason, in this case there is a danger of unfair prejudice to the accused.
However, I consider that the high probative value of the material in question is not outweighed by that danger. I am convinced that any danger of unfair prejudice can be largely addressed by appropriate directions to the jury. The trial judge may give the directions explaining the forensic disadvantage faced by the accused. I am confident that, through appropriate directions, a jury can be dissuaded from giving undue weight to the untested representations of the complainant and avoid taking an emotional or irrational approach to the representation evidence.
The representations will be admitted as evidence at the trial.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell Associate: Date: |
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