R v Holliday
[2014] ACTSC 265
•16 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Holliday |
Citation: | [2014] ACTSC 265 |
Hearing Date: | 16 September 2014 |
DecisionDate: | 16 September 2014 |
Before: | Burns J |
Decision: | I am satisfied that the hearsay rule does not apply to the statement of Paul Cooper dated 15 August 2010 by virtue of s 65 (2) (c) of the Evidence Act 2011 (ACT). I am not satisfied that the hearsay rule does not apply to the statement of Christiaan Van Tonder dated 26 July 2010. |
Category: | Interlocutory application |
Catchwords: | EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether hearsay rule applies – whether maker of representations unavailable – whether representation was made shortly after the asserted fact happened and in circumstances that make it highly unlikely that the representation is a fabrication – whether representation was made in circumstances that make it highly probable that the representation is reliable – whether evidence of prison informant is unreliable |
Legislation Cited: | Evidence Act 2011 (ACT) ss 65, 165 (1) (e) |
Cases Cited: | Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108 R v Pollitt (1990) 51 A Crim R 227 |
Texts Cited: | Australian Law Reform Commission, Evidence [Interim], Report no. 26 (1985) 692 Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 11th Edition, 2014) |
Parties: | R (Crown) Aaron Holliday (Accused) |
Representation: | Counsel Mr S Drumgold (Crown) Mr R Livingston (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Pappas, J Attorney (Accused) | |
File Number(s): | SCC 10 of 2014 |
Burns J:
Background
The accused has been arraigned on an indictment dated 24 January 2014 and has entered pleas of not guilty to charges that:
(a)between 20 May 2010 and 14 July 2010 he attempted to intentionally pervert the course of justice;
(b)between 20 May 2010 and 14 July 2010 he committed the offence of incitement in that he urged Darren Powell to murder Jacob Tarrant;
(c)between 20 May 2010 and 14 July 2010 he committed the offence of incitement in that he urged Darren Powell to murder Trent Jordan;
(d)between 20 May 2010 and 14 July 2010 he committed the offence of incitement in that he urged Darren Powell to kidnap Jacob Tarrant; and
(e)between 20 May 2010 and 14 July 2010 he committed the offence of incitement in that he urged Darren Powell to kidnap Trent Jordan.
These charges are listed for trial commencing today, 16 September 2014.
The Crown moves on an application dated 10 September 2014 to declare two Crown witnesses unavailable, being Johannes Christiaan Van Tonder and Paul Cooper (the Application). The Crown seeks to tender a written statement of Mr Van Tonder dated 26 July 2010, and a written statement of Mr Cooper dated 15 August 2010. The Application is supported by an affidavit sworn by Rae-Anne Khazma dated 10 September 2014, the instructing solicitor for the Crown in this matter, which annexes the statements of Mr Van Tonder and Mr Cooper that the Crown seeks to tender. The Application is opposed by the accused.
The Application is governed by s 65 of the Evidence Act 2011 (ACT) (the Evidence Act):
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.
...
I will provide a brief background to the charges. In May 2010, the accused was on remand in the Alexander Maconochie Centre (AMC) awaiting sentence for sex offences against two males, being the brothers of Jacob Tarrant and Trent Jordan respectively. The accused typed a particular document at a computer in the education facility within the AMC. The Crown intends to lead evidence to the effect that the accused asked questions of Mr Van Tonder, another inmate at the AMC at the time, as to how he might print the document, and Mr Van Tonder directed the accused to burn the document to a CD and print it elsewhere. The Crown further intends to lead evidence that Mr Cooper made observations of the accused typing things on a computer in the AMC education facility. Mr Cooper was employed by Auswide Projects as the Education Manager at the AMC during the time of the alleged offences. It is alleged that this typed document contains written instructions to attempt to incite Mr Powell, also an inmate at the AMC at the time, to commit the offences outlined above. It is alleged that Mr Powell thereafter handed the document to police.
Police later extracted two files from a hard disk that was attached to the computer in the educational facility within the AMC that were similar to the document Mr Powell had provided. A search was also conducted of the accused’s cell where another version of the document was found. The Crown also intends to call an expert witness, a Mr Wisniewski, who will give evidence that his analysis of metadata reveals when the document was created and when it was last altered. The Crown also intends to tender documents recording the access to the AMC education facility on the days in question, which relevantly will reveal that Mr Powell did not access the education facility on those occasions.
Constable Jason Dziubinski, Federal Agent with the Australian Federal Police and the police informant in this trial, provided statements dated 5 September 2014 and 10 September 2014 and underwent examination and cross-examination in relation to his attempts to locate Mr Cooper and Mr Van Tonder to secure their attendance at this trial. Constable Dziubinski’s statement of 10 September outlines his repeated attempts to search for records on the AFP PROMIS database, the National Policing Reference System, the Electoral Role and the Telstra Integrated Public Number Database to obtain any information regarding Mr Cooper, none of which were successful. Constable Dziubinski states that he made attempts to contact Mr Cooper through his previous employer, Auswide Projects, but these attempts were similarly unsuccessful. Constable Dziubinski made further unsuccessful attempts to ascertain Mr Cooper’s contact details through ACT Corrective Services Intel at the Alexander Maconochie Centre. Constable Dziubinski further states that he contacted a number of people with the name Paul Cooper after conducting searches using the White Pages, Google and Linkedin, however none of the people he spoke to were the Paul Cooper relevant to this matter.
During cross-examination, Constable Dziubinski gave evidence that Mr Van Tonder was deported back to South Africa once he had completed serving his prison sentence at the AMC. On 5 September 2014, Constable Dziubinski made contact with Mr Van Tonder via telephone and requested that he respond to a subpoena to return to Australia to produce evidence in this trial. Mr Van Tonder initially indicated that he would be willing to return to Australia to provide evidence at this trial, however, Constable Dziubinski later received an email from him advising that he was no longer willing to return to Australia due to his employment commitments.
The supporting affidavit of Rae-ann Khazma dated 10 September 2014 provides that on 27 August 2014, she and Mr Shane Drumgold, Counsel for the Crown in this case, had a telephone conversation with Mr Van Tonder. During the course of this conversation, Mr Drumgold advised Mr Van Tonder that the Crown would organise accommodation, flights and visa arrangements. Mr Van Tonder confirmed that he was unwilling to return to Australia due to the adverse affects it may have on his current employment, and that he would not respond to a subpoena. Mr Van Tonder further confirmed that he would refuse to attend any location in South Africa during court sitting hours to give evidence remotely, and that he would also refuse to leave his place of employment to attend any location to give evidence remotely during work hours. Ms Khazma’s statement further provides that a subpoena was subsequently posted to Mr Van Tonder’s residential address via Express Post on 4 September 2014.
Ms Khazma’s affidavit provides that she contacted the Human Resources Department at Auswide Projects, who advised that Mr Cooper had retired from Auswide Projects in 2010. She was unable to ascertain any contact details for Mr Cooper.
Consideration
The first step in considering this Application is for me to determine whether, in accordance with the provisions of the Evidence Act, the witnesses are unavailable. If the witnesses are unavailable, I must then determine whether the hearsay rule applies by virtue of the matters that are set out in s 65 (2) of the Evidence Act. That is the second step.
Whether all reasonable steps have been taken
Mr Livingston, Counsel for the accused, submitted that there was insufficient evidence to demonstrate that all reasonable action had been taken to ensure that Mr Van Tonder was made available to give evidence at this trial. Mr Livingston referred me to the case of Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108, where Heerey J found that the requirements set out in s 65 (2) (e) of the Evidence Act were not satisfied because a party had not taken all reasonable steps to secure the attendance of a person living in the United States, as the party had not made personal contact with him, had not offered to pay for his expenses, and no attempt had been made to take advantage of s 7 of the Foreign Evidence Act 1974 (Cth). Mr Livingston did not seek to make submissions on this issue in relation to Mr Cooper.
I note that the Crown in this case did make offers to Mr Van Tonder to pay for his flights and accommodation in Australia. Further, Counsel were unable to point me to any legal process that would have allowed the Crown to force a witness in South Africa to participate in the trial such that the defence would have the opportunity to cross-examine him.
I am satisfied that both Mr Van Tonder and Mr Cooper are unavailable and that all reasonable steps were taken to secure their attendance at trial.
Application of s 65 (2) of the Evidence Act
It seems to me that the Crown must pin its case on paragraphs (b) or (c) of s 65 (2) of the Evidence Act.
I first turn to s 65 (2) (b), which provides that the hearsay rule will not apply if the statements were made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication. I note that the relevant incidents about which evidence is given in the statements of Mr Van Tonder and Mr Cooper are alleged to have occurred around May 2010, and the statements are dated 26 July 2010 and 15 August 2010 respectively. We’re looking at a delay in terms of the dates of the statements from the dates of the events of between two and three months. As such, there exists a real question as to whether it can be said that these representations were made shortly after the asserted fact happened such that s 65 (2) (b) would be satisfied. Mr Livingston submits that in the context of these matters the delay between the asserted facts happening and the statements being made would not meet the ‘shortly after the asserted fact happened’ requirement of s 65 (2) (b). Counsel for the Crown, on the other hand, submits that ‘the real mischief sought to be overcome by [s 65 (2) (b)] is the fabrication of evidence.’ He drew my attention to the Australian Law Reform Commission, Evidence [Interim], Report no. 26 (1985) 692 which states:
The proposal includes an exception for representations made “[when] or shortly after” the events referred to in it. A formula is used which takes up the suggestion of the Privy Council in Ratten’s case. It directs attention to the question of the likelihood of fabrication.
Counsel for the Crown further referred me to Williams v The Queen (2000) 119 A Crim R 490, paragraph 48:
[I]t 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. One condition of this is that the statements be made spontaneously during (“when”) or under the proximate pressure of (“shortly after”) the occurrence of the asserted fact.
I note, however, that what the Full Federal Court goes on to say in Williams v The Queen does not assist the Crown case at paragraph 47:
[I]t is principally a concern to exclude concocted evidence that informs the meaning of the phrase “shortly after”.
I also note this exert from Stephen Odgers’ Uniform Evidence Law (Thomson Reuters, 11th Edition, 2014) at [1.3.2060]:
It is certainly arguable that shortness in time after an incident will only support an inference of truthfulness where it supports an inference that the person making the representation is still under the influence of the incident, involved in it rather than detached from it, and where there has been little time to contemplate fabrication of a false account.
...
The Full Court [in Williams v The Queen] concluded that “it would seem to be an unusual case” in which a representation made days after the occurrence of the asserted fact might be regarded as having been made “soon after” it, notwithstanding the facts that the representor “may be considered to have retained a good recollection of events.”
[citations omitted]
In my opinion, the greater the time difference between the events and the making of the representation, the greater the potential for concoction or fabrication. The fact that we are looking at a delay of a matter of months between the occurrence of the asserted facts and the making of the representations renders the Crown case weak in relation to s 65 (2) (b).
I now turn to s 65 (2) (c), which is an alternative, which provides that the hearsay rule will not apply if the statements were made in circumstances that make it highly probable that the representation is reliable. Counsel for the Crown submits that the circumstances that make it highly probable that the representations made by Mr Van Tonder in his statement are reliable include: first, the proximity between the occurrence of the asserted facts about which representations are made and the making of his statement; and secondly, that much of the evidence in his statement is corroborated.
Section 165 (1) (e) of the Evidence Act is relevant to the reliability of Mr Van Tonder’s statement. It provides:
Unreliable evidence
(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
...
(e) evidence given in a criminal proceeding by a witness who is a prison informer;
...
I note the fact that Mr Van Tonder’s statement is made against a fellow inmate, which would tend to suggest that his statement is unreliable, given that a prison informer comes within a category of witness who has traditionally been accepted to be unreliable. Counsel for the Crown submits that s 165 (1) (e) of the Evidence Act should be interpreted such that it only applies to prison informers who would gain some benefit from the act of informing, referring to the cases of R v Pollitt (1990) 51 A Crim R 227 and R v Ton (2002) 132 A Crim R 340; [2002] NSWCCA 247. This would seem to me to be a very narrow reading of that provision. In my opinion, it does not matter that there is no evidence that Mr Van Tonder did not obtain any benefit from giving the statement; sometimes, the unreliability of evidence given by prison informers can be simply based upon a dislike within the prison community. I note that it is difficult for me to determine whether Mr Van Tonder is of bad character or whether he is likely to concoct his evidence when I have no evidence before me regarding why he was serving a prison sentence, and whether it was for offences of dishonesty.
In relation to the statement of Mr Cooper, counsel for the Crown submits that there is no evidence to indicate that his evidence is anything other than reliable. The Crown points to the fact that Mr Cooper was an employee for Auswide Projects, he was not an inmate nor a prison informer, he was observing the education facility and was simply asked questions by police and provided a statement of his observations.
Orders
I am satisfied that all reasonable steps were undertaken to attempt to ensure both Mr Van Tonder and Mr Cooper were made available to give evidence at this trial. I find that each of Mr Van Tonder and Mr Cooper are witnesses who are unavailable within the meaning of that phrase in the Evidence Act.
I am satisfied with respect to Mr Cooper that the hearsay rule does not apply, although there will need to be some amendments to his statement in order to bring it within the provisions of s 65 of the Evidence Act. The reason I am satisfied that the hearsay rule does not apply is by virtue of the provisions of s 65 (2) (c).
However, I am not satisfied that the hearsay rule does not apply to the representations which the Crown proposes to lead from the statement of Mr Van Tonder.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 13 October 2014 |
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