R v Carberry

[2018] ACTSC 83

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
Williams v The Queen [2000] FCA 1868

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:

1. 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. 

1. 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).

1. 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.

1. 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. 

1. 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.

1. 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.

1. The relevant provisions of the Act are as follows.

65 Exception—criminal proceedings if maker not available

(1)This section applies…