R v Hamilton

[2018] ACTSC 336

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hamilton

Citation:

[2018] ACTSC 336

Hearing Date:

23 August 2018

DecisionDate:

23 August 2018

Before:

Burns J

Decision:

See [5]-[6]

Catchwords:

CRIMINAL LAW – PRE-TRIAL APPLICATION – whether accused’s children are unavailable witnesses – whether accused’s children’s recorded interviews should be admitted as exceptions to the hearsay rule

Legislation Cited:

Evidence Act 2011 (ACT) Dictionary pt 2, s 65

Cases Cited:

The Queen v Nona [2015] ACTSC 175

Parties:

The Queen (Applicant)

Melissa Hamilton (Respondent)

Representation:

Counsel

Ms J Campbell (Applicant)

Mr A Doig (Respondent)

Solicitors

ACT Director of Public Prosecutions (Applicant)

Mr A Doig (Respondent)

File Number:

SCC 240 of 2017

BURNS J:

1. This is an application made by the Crown with respect to the present proceedings against Melissa Hamilton. Ms Hamilton has been charged with two offences, one offence of arson and another offence of causing an explosion or otherwise using an inflammable substance in circumstances likely to endanger human life or cause a person grievous bodily harm.

1. Amongst the proposed Crown witnesses are two of the children of the accused. Those children are currently residing in Tasmania in the care of kinship carers. The Crown seeks a pre-trial determination that the children are unavailable witnesses as defined in pt 2, s 4(1)(c) of the Dictionary of the Evidence Act 2011 (ACT) (Evidence Act), with the consequence that recorded interviews in which the children participated should be admitted as an exception to the hearsay rule as set out in s 65 of the Evidence Act.

1. It has been conceded by Mr Doig, on behalf of the accused, that the witnesses are unavailable, in that they are mentally unable to give the evidence, and it is not reasonably practicable to overcome that inability. In that regard, I adopt with respect to the test of whether a potential witness is mentally unable to give evidence for the purpose of that definition what was stated by Refshauge J in R v Nona [2015] ACTSC 175; 254 A Crim R 301.

1. The second part of the Crown's application of course is that if the Court makes a determination that the witness is unavailable, the recorded interviews of the children be admitted into evidence pursuant to s 65(2)(b) of the Evidence Act. That provides, insofar as is relevant for present purposes, that the hearsay rule does not apply to evidence of a previous representation of a witness who is unavailable to give evidence about an asserted fact where the person saw, heard or otherwise perceived the representation being made if the representation was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication (Evidence Act, s 65(2)(b)).

1. I am satisfied that that test has been satisfied in the present application. The representations as to asserted facts were made by the children shortly after the events occurred. They were made in the context of an official police interview and in circumstances where there is no suggestion that there was any reasonable opportunity for invention or any motive for doing so. For those reasons, I make the orders as sought by the prosecution.

1. With regard to the specificity of orders 6 and 7, I would suggest that the parties have some discussion, and if there's then some question about the extent to which this ruling covers particular parts of statements, then the matter can be brought back before me on short notice.

1. With respect to any conversations that took place other than in the police interview, those conversations, I am satisfied, should also be permitted to be led by the Crown on the basis that they occurred very shortly after the alleged events, and in circumstances where either they were in discussions with police, or with other persons who were present at or shortly after the commission of the events.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: