R v Green (No 2)
[2019] ACTSC 126
•12 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Green (No 2) |
Citation: | [2019] ACTSC 126 |
Hearing Date: | 12 March 2019 |
DecisionDate: | 12 March 2019 |
ReasonsDate: | 14 May 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [44]. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility – discretionary and mandatory exclusions of evidence – whether representation can be admitted under s 65(2)(c) of the Evidence Act 2011 (ACT) – where representation inconsistent with another representation |
Legislation Cited: | Crimes Act 1900 (ACT) s 28 Evidence Act 2011 (ACT) ss 65, 67, 135, 136, 137, 138, 165 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 51, 52, 53, 54, 55, 56, 57, 58, 59 Human Rights Act 2004 (ACT) ss 11, 28, 30 |
Cases Cited: | IMM v The Queen [2016] HCA 14; 257 CLR 300 Lai and Nguyen v The Queen [2017] NSWCCA 263 Munro v The Queen [2014] ACTCA 11 R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 R v YL [2004] ACTSC 115; 187 FLR 84 Sio v The Queen [2016] HCA 32; 259 CLR 47 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 |
Parties: | The Queen (Crown) Timothy Green (Accused) |
Representation: | Counsel S Naidu (Crown) R Thomas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal Solutions (Accused) | |
File Numbers: | SCC 204 of 2018; SCC 205 of 2018 |
LOUKAS-KARLSSON J
Introduction
In the course of the trial in which the accused, Timothy James Green, was charged with two counts of choking, suffocating or strangling another person contrary to s 28(2)(a) of the Crimes Act 1900 (ACT), the Crown made an application to adduce evidence under s 65 of the Evidence Act 2011 (ACT) (Evidence Act).
In particular, the Crown sought to adduce evidence from a Constable Justin Mesman to whom the child of the accused (BSH) was said to have disclosed information regarding the alleged conduct. The application was opposed by the accused on a number of grounds.
On 12 March 2019, I refused the Crown’s application. What follows are my reasons for that decision.
Background
It was the Crown’s case that in the early hours of 13 March 2018, the accused, in the course of an argument with his mother (EC), placed his hands around her neck and squeezed (Count 1), then subsequently, placed a pillow over EC’s head, smothering her with it (Count 2). During the course of the argument in which the alleged offences were said to have occurred, BSH, who was 10 years of age at the time, was in the adjoining room.
On 1 March 2019, the Friday prior to the commencement of the trial, the Crown had attempted to file and serve a subpoena to give evidence on BSH. On 4 March 2019, the first day of trial, leave was granted for the Crown to file the subpoena in court, but not leave to serve it upon BSH.
In the course of the trial, it was agreed by the parties that BSH should receive separate legal representation, particularly in light of the decision of R v YL [2004] ACTSC 115; 187 FLR 84 (YL) which considered issues of competence and compellability of a child in analogous circumstances. On 8 March 2019, arrangements were made by the Crown through the ACT Law Society for BSH to be represented by Mr Darryl Perkins, solicitor.
Mr Perkins made submissions to the Court regarding the prospects of BSH giving evidence. Mr Perkins submitted that BSH had closed herself off from those around her and was frightened about the prospect of giving evidence in court. It was submitted that, although there was no available medical evidence as to the child’s mental condition, there appeared to be risks to the child’s mental condition and familial relationships should she be required to give evidence. Mr Perkins submitted that the possibility of giving evidence remotely would not assuage BSH’s concerns.
Following the submissions of Mr Perkins, the Crown elected not to compel BSH to give evidence. Rather, the Crown made an application pursuant to s 65 of the Evidence Act to adduce evidence of representations made by BSH to Constable Mesman on 18 February 2019 regarding her recollections of the events of 13 March 2018.
Given the developments outlined above, the Crown further sought a direction pursuant to s 67(4) of the Evidence Act that s 65 applied, despite that the lack of reasonable notice required by s 67(1).
Evidence Act
The relevant provisions of the Evidence 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. Note Section 67 imposes notice requirements relating to this subsection.
…
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
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.
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
….
Submissions
The Crown’s submissions
The Crown submitted that BSH should be considered to be ‘not available’ for the purposes of s 65. Section 4, Part 2 of the Dictionary to the Evidence Act, relevantly provides:
(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
The Crown sought to rely on subparagraphs (1)(c) and (f) of the above provision. In respect of subparagraph (1)(c), the Crown drew the Court’s attention to the submissions made by Mr Perkins on behalf of the child regarding her unwillingness to give evidence, her having closed herself off physically and the potential psychological impacts and trauma that giving evidence may have on BSH. The Crown submitted that in those circumstances, BSH was both physically and mentally unable to give evidence.
In respect of subparagraph (f), the Crown submitted that a number of steps had been undertaken to secure BSH’s attendance, including: attempting to seek leave to serve a subpoena on BSH once the Crown became aware of the content of BSH’s recollections, attempting through the mother of BSH to convince BSH to give evidence voluntarily and efforts by police to obtain evidence from BSH. In those circumstances, the Crown submitted, all reasonable attempts had been made to secure BSH’s attendance.
In relation to the hearsay exception under s 65 itself, the Crown sought to rely specifically on s 65(2)(c). The Crown submitted that, in considering the circumstances which make the representation “highly probable it was reliable”, it was relevant to consider the following:
(a) the nature of the asserted facts in the representation, here, an eyewitness account of the immediate perceptions of BSH of a not insignificant event, which were provided in some detail;
(b) the relevant relationship between the maker of the statement and the subject of the representation (referring the Court to Sio v The Queen [2016] HCA 32; 259 CLR 47 (Sio) at [62]), here, the maker being the daughter of the accused and granddaughter of EC;
(c) that BSH had made a separate representation to her mother regarding the alleged events, in addition to the one made to Constable Mesman;
(d) that there was no evidence the representation was made in circumstances where BSH felt pressured, and was made with BSH’s mother present;
(e) that there was no evidence that BSH had concocted her representation (cf: YL); and
(f) the consistency with other evidence available in the proceeding (see: Williams v The Queen [2000] FCA 1868; 119 A Crim R 490 at [54] (Williams)), here, the consistency with a recorded interview between the EC and police.
Turning to the consideration of any proposed exclusion of the evidence under s 137, the Crown submitted that the Court should be satisfied that the probative value outweighed any unfair prejudice, given the representations went to a central fact in issue about the alleged incident, and to a significant extent. It was therefore to be considered “extremely” probative (T 458.47). By reference to the IMM v The Queen [2016] HCA 14; 257 CLR 300, the Crown submitted that the Court should assume the evidence will be accepted by the tribunal of fact at its highest level. The Crown further submitted that there was no unfair prejudice resulting from an inability to cross-examine BSH (referring the Court to the decisions of R v Suteski [2002] NSWCCA 509; 56 NSWLR 182, R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at [164]) and that any potential unfairness could be cured by a direction under s 165 (R v Ford [2009] NSWCCA 306; 201 A Crim R 451).
On the question of notice under s 67, the Crown submitted that a direction under s 67(4) depends on the circumstances of the case and, here, given how the issue arose in trial, the Crown was not able to give such notice to the accused.
The accused’s submissions
Counsel for the accused, Mr Thomas, opposed the Crown’s application on a number of bases.
First, Mr Thomas submitted that the notice requirement under s 67 of the Evidence Act could not simply be dispensed with as a mere formality “due to the exigencies of time” (T 464.23) and notice was fundamental in criminal proceedings.
Second, in relation to s 65(2)(c), Mr Thomas prefaced his submissions by arguing that the Crown had failed to particularise the specific representations sought to be adduced, an approach inconsistent with the decision of the High Court in Sio.
In respect of the circumstances of the representations to be considered, Mr Thomas referred to inconsistencies between the representation made by BSH to her mother and that to Constable Mesman, submitting that the Court can have regard to these inconsistencies for the purposes of determining probative value and therefore reliability of the representation. Mr Thomas also noted that both representations came almost 12 months after the alleged events and in circumstances where BSH was “subject to pressure…anxiety, emotional disturbance, [and] concern about family relationships” (T 466.3). Mr Thomas also suggested that the relevant circumstances include the possibility of concoction, at least in the form of memory distortion, from continued discussions with others throughout the intervening period.
Third, turning to the question of unavailability of BSH, Mr Thomas rejected the submission that reasonable steps were taken by the Crown. In this regard, it was submitted that Crown had known since December 2018 of the importance of the evidence of BSH and had only sought to file a subpoena on the Friday before the trial commenced. Further, by reference to YL, Mr Thomas also submitted that reasonable steps in the circumstances should also have included obtaining representation for BSH in advance of trial.
Fourth, Mr Thomas submitted that the evidence, if admissible, should nevertheless be excluded under s 137 of the Evidence Act. While Mr Thomas conceded that an inability to cross-examine a witness is not dispositive of the question of unfair prejudice, it may well be a matter that leads to unfairness in certain circumstances. In this case, it was submitted that this was particularly so given the importance of the credit of both the accused and EC, and the impact the representation might have on the jury in their choice between the evidence of EC or the accused, potentially “tipping the balance” (T 467.10). It was also suggested that the Court should exercise its discretionary power to exclude the evidence under s 135 of the Evidence Act.
Fifth, Mr Thomas submitted that to admit the evidence in circumstances where BSH had refused to give an evidence-in-chief interview with Constable Mesman, constitutes “duplicitous conduct in breach of s 138 of the Evidence Act” (T 467.22). Mr Thomas submitted that the circumstances of the child triggered s 11 of the Human Rights Act 2004 (ACT) (Human Rights Act) (regarding the right to protection of a child) and Division 4.3.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act), being ss 51 to 59 (regarding the recording of evidence).
It was submitted by Mr Thomas that, Division 4.3.3 of the Miscellaneous Provisions Act, which covers the requirements of an audio-visual recording of evidence, was not followed due to BSH’s unwillingness to participate in an interview. In “circumventing” this Division by giving evidence of the representations of BSH to the Court through the evidence of Constable Mesman instead, it was submitted this resulted in an impropriety for the purposes of s 138. This was said to circumvent the rights of BSH. It was submitted that, if it is accepted that giving evidence may cause harm to BSH, to her mental health and family relationships, harm will still be occasioned, perhaps more so it was submitted, when she learns her words are still given in court.
Finally, it was submitted that, if admitted, the evidence should be limited by a direction under s 136.
The Crown’s submissions in reply
In relation to the disparity between the representation given to Constable Mesman and that given to BSH’s mother, the Crown submitted that the difference was one which could be explained as a difference in detail. It was submitted that Constable Mesman, being trained in in dealing with children, would have approached the questioning in a manner which allowed the extraction of more detailed responses. The Crown further submitted that there was no evidence of concoction or collusion about which the accused would suffer prejudice from being unable to cross-examine on.
In response to the issue raised by Mr Thomas regarding s 138 of the Evidence Act, the Crown submitted that the Human Rights Act requires that laws be interpreted to be consistent with enumerated human rights in that Act “[s]o far as it is possible to do so” (s 30) and that the Act allows for rights to be subject to reasonable limits (s 28). It was submitted s 65 was one such reasonable limit. Moreover, it was submitted that the Miscellaneous Provisions Act only provides an option for an avenue of evidence, rather than a requirement of how evidence is presented and that “there was nothing in law which says before an officer can speak to a child it has to be on tape”(T 477.35). The focus of s 138, it was submitted, is the process of how the evidence was obtained rather than its use.
In any event, the Crown submitted that a clear distinction should be drawn between a child being forced to give evidence in court and hearing about the substance of her evidence being given in court.
Finally, in relation to the timeline relevant for the purposes of the question of ‘reasonable steps’, the Crown submitted that, although it was previously aware BSH was at home during the time of the alleged incident, it was only in February 2019 that the Crown became aware of the actual substance of BSH’s evidence.
Consideration
Section 65(2)(c) requires the Court to make an evaluative judgment. The High Court in Sio made it clear that in making that judgment the focus is on the circumstances in which the representation was made. In particular, I must be satisfied, before admitting a representation into evidence, that it was made in circumstances that make it highly probable that it is reliable.
Relevantly, the Full Federal Court in Williams underlined 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, it was held that although the circumstances of the representation are relevant, these include other consistent and inconsistent representations of the person who made the representation.
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.
In Williams, the Full Federal Court described the requirement in s 65(2)(c), that the court be satisfied that the representation was made in “circumstances that make it highly likely that it was reliable” as “onerous” (at [55]).
When assessing the circumstances in which a representation was made the High Court in Sio emphasised that it was appropriate to take into account other representations which form part of the context in which the relevant representation was made. In particular the Court noted at [71]:
When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made.
By way of example, a representation may be unreliable because it is followed by a specific retraction, or because it is inherently preposterous. The High Court underlined in Sio it is no “light thing” to admit hearsay evidence in a criminal trial, given that the accused will not have an opportunity to test the evidence by cross-examination, noting 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.
As referred to above, the High Court accepted (at [69]-[70]) the observation of the New South Wales Court of Criminal Appeal in Ambrosoli (at [29]) that:
Evidence of events, other than those of the making of the previous representation, can throw light on the circumstances of the making of that representation, and its reliability, as affected thereby.
The admissibility of representations should not be approached in a compendious manner: see Lai and Nguyen v The Queen [2017] NSWCCA 263 at [88]. The Court must consider each representation separately and assess whether the circumstances in which it was made are such that the Court is positively satisfied that it is highly probable that it is reliable. It is important to note the observations of Adams J in R v Popovic, R v Koloamatangi (No 4) [2017] NSWSC 1137 in drawing the distinction between the “likely” test of reliability in s 65(2)(d)(ii) and the more stringent “highly probable” test which a court must apply under s 65(2)(c).
Leaving aside the question of notice, I am not persuaded that the evidence should be allowed under s 65(2)(c) of the Evidence Act. I am not of the view that the representation was “made in circumstances that make it highly probable that the representation is reliable.”
I have come to this conclusion primarily for the following two reasons:
(a) the representation was made almost 12 months after the alleged events; and
(b) on the critical aspects of the allegation of choking, strangulation or suffocation, the representation is not consistent with other evidence.
The representations were made by a child almost a year after the alleged facts in question. The representations were inconsistent with previous representations. Both these factors militate against the proposition that the representation was made in “circumstances that make it highly probable that the representation is reliable”.
In the present case, the Crown sought to adduce a representation from the statement of Constable Mesman dated 26 February 2019 conveying an account of the alleged incident from BSH to Constable Mesman. In that statement, Constable Mesman records the following from his discussion with BSH:
The defendant started to throw things down the hallway at [EC] before coming into [EC’s] room and tried to strangle and suffocate her. This happened a couple of times as the defendant would stop and start walking away but then [EC] would say something and the defendant would come back.
[BSH] stated she was in her bedroom which is located next to [EC’s] room, the two rooms share a wall in-between. [BSH] came out of her room and saw the defendant place his hands around [EC’s] neck and tried to stop him.
Relevantly, a previous representation had been made by BSH to her mother regarding the alleged incident which was conveyed to Constable Mesman in a record of conversation on 18 February 2019. In that record of conversation, BSH’s mother describes the representation from BSH as follows:
Like, [BSH] was in her room, she said, but she – she could hear it. Um, he’d gone down the hallway and they were – continued arguing. And [BSH] got up and – because she heard Shadow whimpering. And he’d said “oh, get your dog out of the way before I kick it in the head”. Um, so I think Shadow had gone with her. But [BSH] said she was standing, like, in the – like at the door of her room and saw him, like, go towards her. And she’d been going, “No. Stop. don’t – don’t do anything,” kind of thing. Um, I don’t know if she actually saw him, like, you know, grab her by the throat or anything like that, but he – she saw him, like, um push the grandmother down to the bed. And then it’s like – because they wouldn’t stop she closed the door.
The representation sought to be adduced by the Crown asserts that BSH saw the accused try to strangle and suffocate EC and, in particular, “place his hands around” EC’s neck. By contrast, that BSH actually witnessed the alleged strangulation is not present in the previous representation from BSH to her mother, nor is there any reference to the alleged suffocation.
Conclusion
Accordingly, on 12 March 2019, I dismissed the prosecution’s application under s 65(2)(c) of the Evidence Act.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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