R v Green
[2019] ACTSC 43
•26 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Green |
Citation: | [2019] ACTSC 43 |
Hearing Date: | 5 February 2019 |
DecisionDate: | 26 February 2019 |
Before: | Burns J |
Decision: | See [23] and [26]-[27] |
Catchwords: | EVIDENCE – Admissibility of previous representations – hearsay evidence – maker of previous representations not available –whether the exception in s 65 of the Evidence Act 2011 (ACT) applies – previous representations fall into two categories – representations made by unavailable witness to third parties regarding what the complainant said to the witness – representations made by unavailable witness to third parties regarding witness’ observations of the complainant – complainant made a statutory declaration repudiating complaint – whether the Crown’s purpose is to adduce representations for the purpose of establishing the truth of those representations – consideration of admissibility of prior consistent statements of complainants in non-sexual proceedings – whether previous representations are first-hand hearsay – consideration of relevancy of previous representations |
Legislation Cited: | Crimes Act 1900 (ACT) s 28 Evidence Act 2011 (ACT) pt 3.2; ss 55, 59, 60, 62, 65, 66, 67, 135, 137 |
Cases Cited: | Fox v General Medical Council [1960] 3 All ER 225 Kilby v The Queen (1975) 129 CLR 460 Vickers v The Queen [2006] NSWCCA 60; 160 A Crim R 195 |
Texts Cited: | LexisNexis Butterworths, Cross on Evidence: Australian Edition vol 1, (at service 205) |
Parties: | The Queen (Applicant/Crown) Timothy Green (Respondent/Accused) |
Representation: | Counsel Ms S Naidu (Applicant/Crown) Mr R Thomas (Respondent/Accused) |
| Solicitors ACT Director of Public Prosecutions (Applicant/Crown) Prudential Legal (Respondent/Accused) | |
File Numbers: | SCC 204 of 2018; SCC 205 of 2018 |
BURNS J
The accused, Timothy James Green, is awaiting trial on an indictment alleging that on two occasions on 13 March 2018 he choked, suffocated or strangled his mother, EC, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT). The Crown case is that in the early hours of 13 March 2018, at the complainant’s home, the accused placed his hands around her neck on one occasion and squeezed her neck. It is also alleged he pushed EC onto a bed, and pushed a cushion down onto her head causing her to have difficulty breathing. The accused’s trial is listed to commence on 4 March 2019.
By an application in proceeding dated 8 January 2019 the Crown seeks orders pursuant to s 65(2) of the Evidence Act 2011 (ACT) (‘the EA’) that it be permitted to lead evidence at the accused’s trial of previous representations made by Nicola Holmes, on the ground that Ms Holmes is now deceased and, as such, is unavailable to give evidence at the trial. Ms Holmes was a neighbour of EC. EC and Ms Holmes were acquainted, as for a time Ms Holmes’ daughter played with EC’s grandchild.
The Crown alleges that after the offences occurred, EC left her home and walked to the home of Ms Holmes. It further alleges that EC then made a number of complaints to Ms Holmes about the accused having assaulted her in the manner alleged by the Crown.
There can be no doubt that the evidence that the Crown seeks to adduce is hearsay evidence. The reception of such evidence is governed by Part 3.2 of the EA. The general rule regarding the admissibility of hearsay material is found in s 59 of the EA, which provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can be reasonably supposed that the person intended to assert by the representation. This general rule is subject to exceptions set out in Division 3.2.1 of the EA.
The Crown submits that the proposed evidence is admissible by virtue of the provisions of s 65 of the EA, which relevantly provide:
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.
NoteSection 67 imposes notice requirements relating to this subsection.
…
In the present case it is accepted that Ms Holmes is unavailable to give the evidence that she would otherwise have been able to give. Can evidence of what Ms Holmes said to third parties about what EC said to her regarding the events of 13 March 2018 be led by Crown at the accused’s trial? The matter is further complicated by the fact that on 4 July 2018 EC completed a statutory declaration repudiating her complaint to police that the accused had assaulted her, and stating that she invented the allegation as she was angry with the accused.
During the course of the hearing of the application on 5 February 2019 the Crown made it clear that insofar as the evidence that it proposed to lead was evidence of what Ms Holmes said to third parties about what EC said to her about the alleged assaults on the morning of 13 March 2018, it did so on the basis that it was leading evidence of complaint, and was not seeking thereby to prove the truth of the assertions made by EC to Ms Holmes. Whilst that was an important concession, it does not resolve the issue.
While the Crown does not seek to prove the truth of the statements made by EC to Ms Holmes by adducing evidence of what Ms Holmes said to third parties, it still seeks to use that evidence for a hearsay purpose, being to prove that EC made the statements to Ms Holmes. As such, s 60 of the EA does not apply, and the hearsay rule will apply unless the proposed evidence is admissible pursuant to s 65.
In applying the hearsay rule found in s 59 and the exception found in s 65(2), it is important to clearly identify:
(a)the person who made the previous representation;
(b)the previous representation itself; and
(c)the asserted fact the existence of which it may reasonably be supposed the person intended to assert by the representation.
10. In general terms, in the present case it may be said:
(a)that the person who is said to have made the previous representation is Ms Holmes;
(b)the previous representations fell into two distinct categories. First, representations made by Ms Holmes to third parties regarding what EC had said to her about the alleged assaults. Secondly, representations made by Ms Holmes to third parties regarding her own observations of EC in the early hours of 13 March 2018; and
(c)the asserted fact which the Crown seeks to prove with regard to statements falling within the first category is simply that EC made such statements to Ms Holmes. With regard to statements falling within this first category, the Crown does not seek to prove through the evidence of the third parties that the statements made by EC to Ms Holmes were truthful. With regard to statements made by Ms Holmes to third parties that fall within the second category, the Crown will presumably seek to prove not only that the statements were made by Ms Holmes to the third parties, but will also rely upon this evidence to establish the truth of the assertions.
11. A Notice of Intention to Adduce Evidence of Previous Representations (the notice) pursuant to s 67(1) of the EA was served by the Crown on the accused. It sets out, in general terms, and by reference to written statements prepared by third parties, by reference to a recording of a 000 call and by reference to a recorded interview between police and Ms Holmes on 13 March 2018, the representations made by Ms Holmes to third parties which the Crown proposes to lead at the accused’s trial. Because of the view I take about the admissibility of the majority of the material, it is unnecessary to refer to the contents of the notice in detail.
12. The accused submitted that the Crown should not be permitted to call evidence from third parties regarding the representation made by Ms Holmes because the application:
… is to permit the Crown to adduce into evidence representations which the deceased witness alleges were made to her by the complainant. The Crown does not seek to adduce representations which were made by the deceased witness from her own personal independent knowledge. The representations to be adduce (sic) are those of the complainant who is available and able to give evidence and will do so.
As each of the representations sought to be adduced by the Crown are representations that were made by the complainant, [EC], s 66 applies to her evidence and the present Application pursuant to s 65 is, with respect, misconceived.
(emphasis as in original)
13. At the hearing of the Application it became clear that the Crown and the accused were at cross-purposes regarding the nature of the Application insofar as it related to the first category of representations set out at [10(b)] above. The Crown’s purpose in bringing the Application is not to adduce representations said to have been made by EC for the purpose of establishing the truth of those representations. The Crown proposes to lead evidence of representations made by Ms Holmes for the purpose of establishing simply that EC made the alleged statement to Ms Holmes. It is apparent that the Crown does so for the purpose of establishing that EC made a complaint to Ms Holmes of being assaulted by the accused.
14. At common law, evidence of a prior consistent statement by a witness, such as a complaint, of having been the subject of a crime, was generally inadmissible. In Fox v General Medical Council [1960] 3 All ER 225 at 230, Lord Radcliffe said regarding such evidence:
Generally speaking, as is well known, such confirmatory evidence is not admissible, the reason presumably being that all trials, civil and criminal, must be conducted with an effort to concentrate evidence on what is capable of being cogent and… it does not help to support the evidence of a witness who is the accused person to know that he has frequently told other persons before the trial what his defence was. Evidence to that effect is, therefore, in a proper sense immaterial.
15. Although the above quotation considers the issue from the perspective of prior consistent statements by an accused person, the general principle also applies to prior consistent statements by complainants, subject to certain well recognised exceptions. The learned editor of Cross on Evidence, Australian Edition, J D Heydon states that among the exceptions to the general prohibition on leading evidence of prior consistent statements is evidence of complaint in sexual offences, and evidence of statements that form part of the res gestae. The statements said to have been made by EC to Ms Holmes are so far divorced in time from the events said to constitute the offences that it could not be argued that the res gestae exception is relevant. In addition, the charges against the accused are not sexual offences, so that the proposed evidence does not come within that exception relating to evidence of complaint in sexual offences.
16. I will add at this point that the reasons for the admission of complaint evidence in sexual offences at common law is to support the credibility of the complainant as a witness: R v Warner (1995) 78 A Crim R 383 at 385; Kilby v The Queen (1975) 129 CLR 460 at 466, 473-474. Such evidence is not received as proof of the truth of the complaint: R v White [1999] 1 AC 210. It cannot be known with any certainty what evidence EC will give at the accused’s trial. If she were to give evidence consistent with the contents of the statutory declaration, the evidence of her statements to Ms Holmes could not be used to support her evidence in the trial. Even if complaint evidence was admissible with regard to these non-sexual offences, evidence of what EC said to Ms Holmes would not in that circumstance constitute complaint evidence.
17. The present application must be determined in the context of the EA, and in particular the provisions of Part 3.2 governing the admissibility of hearsay material. As I have already noted, the Crown relies upon the provisions of s 65 of the EA, which governs the admissibility of such material in criminal proceedings when the maker of the representation or statement is unavailable. If Ms Holmes were alive and able to give evidence, she may have been able to give evidence of the statements made to her by EC so long as the preconditions to the admission of such evidence found in s 66 of the EA were satisfied and if the evidence was relevant pursuant to s 55. Her evidence would then be capable of being used as evidence of the truth of the asserted fact, in this case that EC has been assaulted in the way she described to Ms Holmes: Papakosmos v The Queen [1999] HCA 37; 196 CLR 297.
18. In the present case, however, we are one step removed from that position with regard to evidence that falls into the first category identified at [10(b)] above. The exception to the hearsay rule set out in s 65 of the EA only applies to first-hand hearsay: s 62 of the EA. Evidence from a third party that Ms Holmes told them something that EC had said to her cannot be used to establish the truth of the statement made by EC, as that evidence would be second-hand hearsay.
19. The Crown was undoubtedly aware of the inadmissibility of the proposed evidence to prove the truth of the assertions made by EC to Ms Holmes, and accordingly restricted the purpose of the proposed evidence to establishing that the statements had been made. But how is that fact relevant to any fact in issue in the proceeding?
20. Relevant evidence is evidence that, if it were accepted could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceeding: s 55 EA. Whether Ms Holmes made representations to third parties about what EC said to her is not an issue in the proceeding, nor is whether EC made the alleged statements to Ms Holmes. Evidence that EC made the alleged statements to Ms Holmes could only be relevant to proving a fact in issue in one of two ways. First, as evidence of the truth of the statements made by EC. The Crown has rightly repudiated this possible basis for admission. The second way in which it could be relevant to proving a fact in issue is by supporting the credibility of the complainant, should the complainant give evidence consistent with her alleged statements to Ms Holmes.
21. In Vickers v The Queen [2006] NSWCCA 60; 160 A Crim R 195, Simpson J, with whom James and Hall JJ agreed, considered whether a statement made by a witness who was unavailable at the time of trial, and which contained a representation by the author of the statement, one Mr Gould, that he heard the appellant say after an alleged assault on a victim in a toilet block, that he (the appellant) had been provoked in the toilets, should have been admitted at the appellant’s trial. Simpson J noted at [52] that the written statement of Mr Gould tendered at the trial in reality contained two possible representations for the purpose of the operation of s 65(2) of the Evidence Act 1995 (NSW). The first was a representation made by Mr Gould that he heard the appellant say he had been provoked. The second was the representation contained in the words attributed by Mr Gould to the appellant, that he had, in fact, been provoked. Simpson J went on to say at [54] with regard to the first representation:
If the fact that the appellant had said that he had been provoked (as distinct from the fact that the appellant had been provoked) were relevant, then… s 65(e) would have rendered the evidence contained in that part of the statement admissible. But the fact that the appellant said that he had been provoked was not relevant to any issue in the trial; it could have been relevant only if it could also be used in proof of the truth of what the appellant said.
(emphasis as in original)
22. In the present case, the fact that EC made a representation to Ms Holmes that she had been assaulted by the accused is not relevant to any fact in issue.
23. For these reasons I am satisfied that the evidence of what Ms Holmes told third parties about what EC said to her about the alleged assaults should be excluded. This includes representations made by Ms Holmes in the course of the 000 call.
24. The second category of representation identified at [10(b)] above is different. These are representations of observations of EC made by Ms Holmes which she said she made on the morning of 13 March 2018. Here the asserted fact is the observation by Ms Holmes of EC. It was not challenged that the statements made by Ms Holmes to the third parties concerning these observations were made shortly after the observations were made. While EC and Ms Holmes knew each other, their relationship was not close. I am satisfied that the circumstances in which her representations were made to third parties make it unlikely that they are a fabrication.
25. I see no reason to exercise any discretion under ss 135 or 137 of the EA to exclude this evidence. The probative value of the proposed evidence is reasonably significant, and any potential unfair prejudice to the accused can be appropriately managed by jury direction.
I therefore permit the Crown to lead evidence of previous representation made by Ms Holmes concerning her personal observations of EC on the morning of 13 March 2018.
27. I direct that these reasons not be published, other than to the parties, until the accused’s trial is completed.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 26 February 2019 |
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