R v Eastman (No 30)
[2018] ACTSC 7
•2 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 30) |
Citation: | [2018] ACTSC 7 |
Hearing Date(s): | 11 July 2017 |
DecisionDate: | 2 February 2018 |
Before: | Kellam AJ |
Decision: | The evidence referred to in notices filed by the prosecution pursuant to s 67 of the Evidence Act 2011 (ACT) in relation to Mrs Margaret Haraszti and Mrs Rosalyn Matthews-Russo is not admissible. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility in a criminal trial of hearsay evidence where maker of the representation is deceased – notice issued pursuant to s 67 relying on ss 65(2)(b) and 65(2)(c) of the Evidence Act 2011 (ACT) – when is a representation made ‘shortly after’ the asserted fact pursuant to s 65(2)(b) of the Evidence Act 2011 (ACT) – a representation that is not made ‘shortly after’ the asserted fact does not meet the requirement of s65(2)(b) – the representation not made in circumstances that make it highly probable it was reliable as required by s 65(2)(c) Evidence Act 2011 (ACT) |
Legislation Cited: | Evidence Act 2011 (ACT) ss 65(2)(b), 65(2)(c), 67, Dictionary Pt 2 s 4(1)(a) |
Cases Cited: | Conway v The Queen [2000] FCA 461; 98 FCR 204 Harris v R [2005] NSWCCA 432; 158 A Crim R 454 Sio v The Queen [2016] HCA 32; 259 CLR 47 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 |
Texts Cited: | Stephen Odgers SC, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) |
Parties: | The Queen (Crown) David Harold Eastman (Accused) |
Representation: | Counsel Mr M Thangaraj, Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC, Mr M Stanton and Ms L Line (Accused) |
| Solicitors Office of the ACT Director of Public Prosecution (Crown) ACT Legal Aid (Accused) | |
File Number(s): | SCC 111 of 1992 |
Kellam AJ:
On 11 July 2017 I heard submissions relating to a number of witnesses who are the subject of notices which have been issued by the prosecution pursuant to s 67 of the Evidence Act 2011 (ACT) (the Act).
All of the witnesses in question are now deceased and thus they are all ‘unavailable’ to give evidence within the meaning of s 4(1)(a) of the Dictionary (Part 2) of the Act.
The witnesses who are the subject of the submissions:
(a)Mr Phillip Cotter;
(b)Mr Roderick Campbell;
(c)Ms Marie Eastman;
(d)Mrs Margaret Haraszti; and
(e)Mrs Rosalyn Matthews-Russo.
I shall not deal with the s 67 issues relating to Mr Cotter, Mr Campbell and Mrs Eastman as their evidence is the subject of later submissions which were made subsequent to my ruling that although Tendencies 1, 2, 3 and 5 sought to be relied upon by the prosecution are defective, Tendency 4 is capable of being admissible.
Accordingly the matters that this ruling will deal with are the s 67 notices upon which the prosecution seeks to rely in relation to the evidence of Mrs Haraszti and Mrs Matthews‑Russo. The evidence of both of these witnesses was submitted by the prosecution to be relevant to Tendencies 1 and 3 which tendencies, as stated above, I have ruled as being defective. However, in addition to relying upon the evidence in relation to these tendencies, the prosecution submits that the evidence relates to motive. The prosecution submits that the circumstances of an incident that occurred on 17 December 1987 involving the accused and Mr Andrew Russo (the ‘Russo assault’) are highly relevant to the prosecution case. The prosecution asserts that the Russo assault is the commencement in the change of focus of the anger in the accused from the Commonwealth government to the police. This matter is central to the prosecution case against the accused.
Prosecution submissions in relation to Mrs Margaret Haraszti
The s 67 notice filed in relation to Margaret Haraszti by the prosecution seeks to rely upon s 65(2)(b) and/or s 65(2)(c) of the Act. As stated above Mrs Haraszti is deceased. She did not give evidence at the first trial. The representations made by Mrs Haraszti sought to be relied upon by the prosecution relate to the Russo assault to which Mrs Haraszti was a witness. The representations are made in a statement to police on 20 December 1987 which statement the prosecution seeks to present in its entirety. The statement records the description and details provided by Mrs Haraszti of what she observed of the Russo assault. The prosecution submits that I should be satisfied the representations were made shortly after the alleged assault, in circumstances whereby it is unlikely that they are a fabrication and that therefore the representations are encompassed by s 65(2)(b) of the Act. In the alternative the prosecution submits that I should be satisfied that the representations were made in circumstances that make it highly probable that they are reliable in accordance with s 65(2)(c) of the Act. In this regard the prosecution submits that Mrs Haraszti was not involved in the incident and was an independent witness to what occurred. It is submitted that she made the representations in a statement to police and she signed the statement three days after the incident at a time when it was fresh in her mind. She was a retired public servant and the incident was traumatic and not one that she would have been likely to forget in the intervening period.
Prosecution submissions in relation to Mrs Rosalyn Matthew-Russo
The prosecution seeks also to rely on the evidence of Mrs Matthews-Russo pursuant to ss 65(2)(b) and/or 65(2)(c) of the Act. She was the mother of Mr Andrew Russo who was involved in the altercation with the accused on 17 December 1987. She is also deceased. The substance of the evidence sought to be relied upon by the prosecution relates to what she saw at the time of the altercation. The representations relied upon are contained in a statement made to police on 18 December 1987.
The signed statement made to police on 18 December 1987 describes how Mrs Matthews-Russo, who at the time was aged 74 years, came at about 3pm on 17 December 1987 to Jerilderie Court where her son lived. She placed a card in her son’s letterbox. Her statement describes how she was told by the accused that she could not park her car where she had. She states that she left the scene and returned about 4pm when she saw the accused drive in. She then saw her son approach the accused and remonstrate with him about the way the accused had spoken to her, with which the accused assaulted her son. She then provided a description of what took place in the course of the assault.
The prosecution relies upon the fact that the statement made by Mrs Matthews‑Russo was made to police the next day and therefore it clearly falls within s 65(2)(b) of the Act, being made shortly after the asserted fact happened and in circumstances making it unlikely that the representation is a fabrication. It is submitted that although Mrs Matthews-Russo was the mother of Mr Russo, it should be observed that her statement notes that her son grabbed the accused by the hair with his hand in the course of the assault. It is submitted that that reflects that the account given by Mrs Matthews-Russo was an accurate account and not a biased account. Although no reliance is placed on a second statement made to police six days later, it is submitted that this later statement is consistent with what Mrs Matthews-Russo told police on 18 December 1987 which supports the reliability of what she said in the first statement.
Principles applying to the operation of ss 65(2)(b) and 65(2)(c) of the Act
It is appropriate at this point to consider briefly some of the principles which apply to the sections of the Act upon which the prosecution seeks to rely in order to lead the hearsay evidence of the above witnesses.
First, and as observed by the High Court in Sio v The Queen [2016] HCA 32; 259 CLR 47 (‘Sio’) (French CJ, Bell, Gageler, Keane and Gordon JJ) at [60]:
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.
Further the court observed at [61]:
The serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge and the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.
In relation to s 65(2)(b) which section is relied upon by the prosecution in respect of both of the above witnesses, the issues for determination are:
(a)Was the representation made when, or shortly after, the asserted fact happened; and
(b)Was the representation made in circumstances that make it unlikely that the representation is a fabrication?
The defence in dealing with the temporal connection required by s 65(2)(b) relies upon Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 (‘Williams’) where the Full Federal Court (Whitlam, Madgwick and Weinberg JJ) stated at [48] and [49]:
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 ….
In this case, the statements were not made during the events in question, and, we think, could not be said to have been made “shortly after”. Despite being made within a time in which Mr Stewart may be considered to have retained a good recollection of events generally, the lapse of five days takes the representations outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events. This time lapse, therefore, takes the representations outside the exception contained within s 65(2)(b). Indeed, it would seem to be an unusual case in which a representation made five days after the occurrence of the asserted fact might be regarded as having been made “soon after” it.
Defence submissions in relation to Mrs Margaret Haraszti
In relation to the evidence proposed to be led in respect of the representations of Mrs Haraszti, Mr Stanton on behalf of the accused submits first, that the temporal consideration referred to in Williams above, applies in her case and therefore the requirements of s 65(2)(b) of the Act are not met. The defence submits that the delay of three days, between the happening of the events and the making of the statement, is not capable of meeting the temporal proximity described by the words ‘shortly after’.
In relation to this submission there is some conflict in the authorities as to the meaning of ‘shortly after’ (see the discussion at 410-412 of Stephen Odgers SC, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016)). Certainly it cannot be said that the representations in the statement sought to be tendered could be said to have been made under the proximate pressure of the occurrence of the Russo assault. In Williams the Full Court expressed (at [48]) the temporal requirement of s 65(2)(b) in terms that the representation must:
…. be made spontaneously during (“when”) or under the proximate pressure of (“shortly after”) the occurrence of the asserted fact.
That statement by the Full Court was quoted with approval by the NSW Court of Criminal Appeal in Harris v R [2005] NSWCCA 432; 158 A Crim R 454 (‘Harris’) at [36]-[37]. However in Harris the statement of the deceased was made ‘some twenty-four hours after the event’.
In the circumstances it appears to me that the statement of Mrs Haraszti is not admissible pursuant to s 65(2)(b) of the Act as it was not made shortly after the events in question. Accordingly the question of admissibility of her statement needs to be considered in the light of s 65(2)(c), that is, was it made in circumstances that make it highly probable that it is reliable? As submitted by Mr Stanton, s 65(2)(c) sets a ‘high bar’, to use his words. The test required under s 65(2)(c) does impose a higher threshold than in s 65(2)(b) and the language of the section directs attention to the objective circumstances in which the representation was made and not to the truthfulness or otherwise of the person making it.
In Conway v The Queen [2000] FCA 461; 98 FCR 204 the Full Federal Court (Miles, von Doussa and Weinberg JJ) stated:
The requirement in s 65(2)(c) of the Act that it be “highly probable” that a representation be “reliable” in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person.
Mr Stanton submits that there is reason to consider that the representations of Mrs Haraszti are not reliable as Mr Russo conceded in giving evidence at the first trial that there was an exchange of blows, and yet nowhere in her statement is there a mention of that fact.
Defence submissions in relation to Mrs Rosalyn Matthews-Russo
In respect of Mrs Matthews-Russo, although Mr Stanton does not take issue with the temporal nature of the representation, he submits that the circumstances are not such that I can conclude that the statement is reliable. First Mrs Matthews‑Russo is not independent. She is a mother making a statement to police. He relies upon a subsequent undated document provided to the DPP by Mrs Matthews‑Russo headed ‘Assault on my son’ as demonstrative of the lack of objectivity of Mrs Matthews‑Russo. That document (although enclosed with the s 67 notice) is not relied upon by the prosecution and it was clearly written some years after the incidents it refers to. However the emotive tone of it does cause one to reflect on just how reliable were the circumstances of the making of the earlier statement.
Conclusion
It is clear that the focus of a trial judge tasked with ruling upon the admissibility of a representation is directed by ss 65(2)(b) or (c) not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The question for me is can I identify circumstances which of themselves warrant the conclusion that it is under s 65(2)(b) unlikely that the representation is a fabrication or under s 65(2)(c) highly probable that the representation in question is reliable?
In the case of the representations of Mrs Haraszti upon which the prosecution seeks to rely, I am unable to be satisfied that everything she said in her police statement is reliable. It should be observed that her statement is barely one page and states that Mr Russo ‘was not hitting’ the accused. She makes no mention of Mr Russo grabbing the accused by the hair, as Mrs Matthews‑Russo does in her statement. Whilst no doubt the fact that there is a probability that some parts of Mrs Haraszti’s statement (such as the fact that she was present) are reliable, I cannot be satisfied that the whole of the representations sought to be relied upon are highly probable to be reliable.
In the case of Mrs Matthews-Russo I am not satisfied, taking into account her relationship with Mr Russo and the circumstances under which she made her statement, that it can be said that her statement is unlikely to contain fabrication. This is all the more likely when one considers the highly emotional statement subsequently made some years later by Mrs Matthews‑Russo, and which reveals that she had had previous dealings with the accused despite her statement of 18 December 1987 that ‘I saw a man I now know to be Mr Eastman drive in’. Her later statement reveals that in fact she had prior to that been involved in Magistrates Court proceedings in which the accused was also involved and in relation to which she was ‘shocked at the calumniations he came out with’. The tone of this later statement reflects so seriously on the circumstances of her representations of 18 December 1987 that I am unable to have confidence that the representations are unlikely to be a fabrication.
Furthermore I consider that there is a more fundamental objection to the evidence of the two witnesses being led as proposed. There can be little doubt that there was an altercation between the accused and Mr Russo. As I understand it, Mr Russo will give evidence about that matter and there will be other evidence that relates to the ‘Russo assault’ and the part that it plays in the prosecution case.
It is difficult to see how the detail of the assault referred to in Mrs Harastzi’s and Mrs Matthews‑Russo’s statements is in those circumstances relevant to any fact in issue. The detailing of the precise circumstances of the Russo assault as reported by these two witnesses adds nothing to the prosecution case, except to prejudice the accused. Contrary to the prosecution’s submission, I conclude that the statements as a whole should not be admitted into evidence.
Accordingly I rule that the evidence referred to in the s 67 notices filed in relation to Mrs Haraszti and Mrs Matthews-Russo is not admissible.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam Associate: Date: 2 February 2018 |
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