R v Kerry (a pseudonym) (No 3)
[2022] ACTSC 171
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kerry (a pseudonym) (No 3) |
Citation: | [2022] ACTSC 171 |
Hearing Date: | 13 July 2022 |
DecisionDate: | 14 July 2022 |
Before: | Elkaim J |
Decision: | (a) The Crown is permitted to adduce the evidence of AA pursuant to s 65 of the Evidence Act 2011. (b) The leave given in the preceding order is subject to the following restrictions: i. The leave applies only to the representations made in the following documents: 1. The statement made by AA to NSW Police on 23 October 2019. 2. The evidence in chief interview conducted on 15 July 2020. 3. The text message exchanges between AA and the respondent and between AA and the respondent’s wife. ii. The use of the representations in the trial is subject to any specific rules of evidence as to their individual admissibility. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application for leave to adduce evidence pursuant to s 65 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Evidence Act 2011 (ACT) ss 65, 135, 137 |
Cases Cited: | Munro v The Queen [2014] ACTCA 11 R v Bauer [2018] HCA 40; 266 CLR 56 R v TAI, Alatini [2016] NSWCCA 207 |
Parties: | The Queen ( Crown) Zeph Kerry (a pseudonym) ( Accused) |
Representation: | Counsel B Morrisroe ( Crown) T Jackson ( Accused) |
| Solicitors Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) | |
File Numbers: | SCC 39 of 2022 |
ELKAIM J:
Mr Kerry (a pseudonym), the respondent in the current application, is facing trial on an indictment filed on 5 May 2022, alleging two counts of indecent assault committed between 31 December 1971 and 10 December 1975 and between 31 December 1979 and 3 August 1983 respectively.
Each count is in respect of a different complainant. Both complainants were under the age of 16 when the alleged offending took place. The complainant in the first count, AA, is deceased.
On 19 April 2022 I gave leave to the Crown to subpoena documents, concerning AA, which were held by the St John of God Burwood Hospital (R v Kerry [2022] ACTSC 80).
On 24 May 2022, after documents were produced pursuant to the above subpoena, I gave leave for the inspection of those documents “to the extent that they have been copied and placed in an envelope marked “confidential for parties only”” (R v Kerry (No 2) [2022] ACTSC 111).
On 7 June 2022 the Crown filed an application in proceeding seeking leave to adduce representations made by AA, pursuant to s 65 of the Evidence Act 2011 (ACT) (Evidence Act). Notice of the Crown’s intention to adduce the evidence was given to the respondent and filed on 7 June 2022.
The application is opposed by the respondent.
The application is supported by an affidavit of Ms Erin Priestly, affirmed on 6 June 2022 (the affidavit).
AA died on 5 March 2022. AA was the sister (through adoption) of the respondent. AA was born in December 1959. The respondent was 12 years older than AA. These facts are not in issue.
Section 65 of the Evidence Act is as follows:
65Exception–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.
(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in the proceeding, the defendant in the proceeding to which this section is being applied—
(a) cross-examined the person who made the representation about it; or
(b) had a reasonable opportunity to cross-examine the person who made the representation about it.
(4) If there is more than 1 defendant in the criminal proceeding, evidence of a previous representation that—
(a) is given in an Australian or overseas proceeding; and
(b) is admitted into evidence in the criminal proceeding because of subsection (3);
cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.
(5) For subsection (3) and subsection (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but—
(a)could reasonably have been present at the time; and
(b) if present could have cross-examined the person.
(6) Evidence of the making of a representation to which subsection (3) applies may be presented by producing a transcript, or a recording, of the representation that is authenticated by—
(a) the person to whom, or the court or other body to which, the representation was made; or
(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c)the entity responsible for producing the transcript or recording.
(7) Without limiting subsection (2) (d), a representation is taken for subsection (2) (d) to be against the interests of the person who made it if it tends—
(a) to damage the person’s reputation; or
(b) to show that the person has committed an offence for which the person has not been convicted; or
(c) to show that the person is liable in an action for damages.
(8) The hearsay rule does not apply to—
(a) evidence of a previous representation presented by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
(9) If evidence of a previous representation about a matter has been presented by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that—
(a) is presented by another party; and
(b) is given by a person who saw, heard or otherwise perceived the other representation being made.
(notes omitted)
The previous representations made by AA which the Crown wishes to adduce into evidence are contained within a selection of documents. I will describe each document below when dealing with the respective document.
The representations were said to fall within the compass of s 65(2)(c), namely that they were made “in circumstances that make it highly probable that the representation is reliable”. There is no dispute, in respect of subsection (1), that AA “is not available to give evidence about an asserted fact”. The respondent also accepted that reasonable notice of the application had been provided.
Having regard to the matters not in dispute, the argument before me has centred on whether or not the representations fall under subsection (2)(c).
In support of its submission about the reliability of the representations, in particular those made to a police officer, the Crown pointed to the following circumstances, quoting from its written submissions at [18]:
I.The representations were made in the context of a police statement with a jurat;
II.When the representations were made the complainant must have appreciated that the matters were likely to be investigated by police;
III.The representations were made by way of a free narrative which was roughly typed by a police officer before going back through and adding more detail in response to specific open questions;
IV.The statement was completed after an improvement in the mental health of the complainant [at hearing, the applicant will seek leave pursuant to s79D of the Evidence Miscellaneous Provisions Act to tender a protected confidence in support of this submission];
V.The complainant had no apparent reason to lie;
VI. The representations are consistent with representations made by the complainant directly to the accused and others.
Additional factors were pointed out where the representations were made to persons other than the police. Again it was pointed out that the “complainant had no apparent reason to line” and “the representation is consistent with the representations later made to others including police”.
The respondent answered these factors by concentrating on the following:
9.Given the effluxion of time between the index events, the significant mental health history of the complainant, a positive finding of highly probable to be reliable cannot be established. Further, as disclosed in the prosecution brief, the complainant was alleging similar matters against other family members and this is an area that, in the ordinary course of events, would have been explored in cross-examination but cannot.
The respondent referred me to Munro v The Queen [2014] ACTCA 11 (Munro). In their joint judgment, Refshauge and Penfold JJ said:
5. We consider that there is a real question whether the making of a statement to a police
officer, even in circumstances in which the maker of the statement acknowledges an
obligation to tell the truth to the best of his or her knowledge and belief and a risk of
prosecution if he or she does not do so, is sufficient to satisfy the test in s 65(2)(c).
6. First, it is clear that imposing a legal obligation on a person to tell the truth does not
always work. Trial courts, criminal and civil, regularly hear starkly conflicting
testimony from different witnesses all of whom are giving sworn evidence and
thereby exposing themselves to perjury charges if they do not tell the truth. This
suggests either or both that a legal obligation to tell the truth does not always work to
produce truthful evidence or does not always work to produce evidence that is
otherwise reliable; that is, if two witnesses give irreconcilable sworn evidence, then at
least one of them must be giving evidence that is either untrue or otherwise unreliable.
7. Secondly, reliability seems to relate not only to whether a person is trying to tell the
truth but also to whether they ever had the knowledge that is sought to be extracted,
and whether they are capable of recalling it, and reporting it accurately, at the relevant
later time.
Their Honours continued, from [10]:
10. Where the reliability of evidence depends on a person’s inclination to tell the truth
(rather than their capacity to give an accurate account of the relevant circumstances),
then the fact that a person gives evidence on pain of prosecution if it is false, or even
on oath in a courtroom, may make the person more likely to give reliable evidence,
but generally only if there are no countervailing incentives to try to hide the truth.
11. That is, acknowledging an obligation to tell the truth, as is done in making a police
statement, does not necessarily make a person’s representation reliable.
12. Furthermore, if the legislative intention were that a representation made in a police
statement was to be treated as, of itself, necessarily or even presumptively “highly
probable” to be reliable, this intention could very easily have been made explicit in
s 65(2).
13. Finally, we note the remarks of the Full Court of the Federal Court in Conway v The
Queen (2000) 98 FCR 204, quoted by Burns J at [76] below, to the effect that
s 65(2)(c), for good reason, imposes an onerous burden on a party seeking the
admission of evidence that cannot be tested in cross-examination.
14. For all those reasons, we remain unconvinced that s 65(2)(c) applies to a statement
simply because it was made to a police officer or because it was made in the context
of an understanding that a false statement would expose the maker to prosecution.
While I acknowledge the reasoning of Refshauge and Penfold JJ, in respect of statements made to police, I prefer the approach taken by Burns J, at [79(a) and (b)]:
79.In my opinion, the trial judge was correct to admit Mr Grace’s statement into evidence. The following are the circumstances that make it highly probable that the representations made by Mr Grace in the statement were reliable:
a) the representations were made to a police officer in a formal statement. They were not casual comments or representations made socially or informally;
b) in making the representations, by signing the statement, Mr Grace acknowledged that the statement “is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything I know to be false or do not believe to be true”. In R v AB [2011] ACTSC 204, Penfold J (at [35]) found it unnecessary, in the circumstances of that case, to determine whether such an acknowledgement was relevant to determining the admissibility of a representation pursuant to s 65(2)(c). In my view, the fact that a person makes a representation, such as a statement to police, in circumstances where they are aware, or believe, they may be prosecuted for making a false representation is a circumstance relevant to determining the probability that the representation is reliable;
Burns J emphasised that each of the points put forward for reliability might not establish that fact on their own but may well satisfy the test “in combination”.
The respondent’s reliance on the effluxion of time is ostensibly a valid point but one whose validity has withered against the background of the courts frequently dealing with allegations of sexual offences occurring many years ago. It is now commonplace for complainants to give evidence about historical crimes and for that evidence to be accepted.
It is also a common feature of evidence given by complainants about events that occurred a long time ago that the events, because of their effects upon the complainants, have been seared into their memories. This point also to some degree answers the respondent’s submission, against reliability, based on the complainant’s significant mental health history. A distinction may however arise when the representation was made during a period of depression and in the course of treatment.
According to the case statement, AA was admitted to St John of God Hospital with postnatal depression. As will be seen below, this could have an effect on reliability during the admission.
Another factor concerning mental health is if this mental health condition is a product of the offending, either entirely or significantly, then it would seem a somewhat inconsistent conclusion to say that a memory was significant enough to cause a mental health condition but is otherwise unreliable.
The inability to cross-examine AA about allegations against other family members is potentially prejudicial. However, an unsuccessful cross-examination following which a jury does not reject the allegations against other family members would hardly be of assistance to the respondent.
There is no suggestion that AA had any sort of criminal history providing her with a background in which dishonesty to the police was a real possibility. I think the dealings with the police show a real effort to provide them with a reliable history.
The documents are not however all statements to the police. There are also some points of distinction between the various statements made to the police. It is necessary to look at the different ‘types’ of representations.
I note that the Crown in its written submissions did not press the representations made by AA to Southern Highlands Detectives which are set out at paragraph 4 of the notice to adduce the evidence.
Turning to the representations the Crown wishes to rely upon, the first are in the statement of AA dated 23 October 2019, which commences at page 118 of the affidavit. The statement is a relatively straightforward account of AA’s family history moving into the allegations against the respondent.
Exhibits A and B in the application were tendered to counter any suggestion that, when the statement was made, AA might have been in an unstable mental health state. In his letter of 28 October 2019, Dr Pace, a psychiatrist, notes the “steady improvement in mood, cognitive functioning and motivation throughout the treatment process.” This followed the completion of 28 sessions of Transcranial Magnetic Stimulation.
Exhibit B also contains a letter indicating the completion, on 14 November 2019, of a Dialectical Behaviour Therapy outpatient program. Taken with the statement of Detective Senior Constable Streeting (Exhibit A), in particular from [10], I think it is sufficiently clear that AA was not apparently mentally disturbed when making the statement.
The statement contains an acknowledgement of its truth and that if it is tendered in evidence it could give rise to a prosecution of perjury if found to be false.
The next representations are in the ‘evidence in chief’ interview which commences at page 33 of the affidavit. The interview was conducted on 15 July 2020. It seems to have lasted a little over four hours. At the commencement the police officer emphasises to AA the necessity to be truthful and her susceptibility to prosecution if anything she says is false. Starting at Question 7, AA gives a long answer about her reasons for talking to the police. Notably this answer was not prompted by any specific questions. The remainder of the interview is then a dissection of the overall allegation in which the police officers seek more background and detail.
The next document containing representations commences at page 149 of the affidavit. It is a statement from AA’s husband made on 24 September 2021. The relevant paragraph states:
While (AA) was in hospital, she said to me “Bob, I’ve never told you this but I have depression because of events that happen to me as a little girl when I was molested by my brother (the respondent)” or similar words to the same effect.
This is complaint evidence. The complaint was made “between November and December in 2003” when AA was an inpatient at the St John of God Hospital. This is a mental health institution. The admission was consequent upon a diagnosis of postnatal depression following the birth of the couple’s second child.
The next representation is contained in the document commencing at page 153 of the affidavit. It is a statement of a niece of AA. She recounts that in 1985 her sister told her that she had been sexually abused by the respondent and another person. Then in January 2018 she says that her aunt, AA, “told me that (the respondent) had sexually abused her as a child”.
The next document (page 127 of the affidavit) is a letter written by AA to the respondent dated 21 January 2018. In this letter AA refers to the respondent’s “actions (sexual abuse) of me as a child and teenager and of [redacted]’s girls”. The letter is a direct accusation of the abuse and also an explanation for the timing of the letter, being a product of psychiatric treatment and AA being persuaded “to talk about the abuse”. There is no suggestion that when the letter was written that AA was in the midst of a particular bout of depression.
The final document (commencing at page 131 of the affidavit) is a text exchange between AA and the respondent’s wife. The relevant representations are contained in a message sent at 7:29PM on 21 February 2018. They are a direct statement of the allegations although, as will be seen below, there is some inconsistency in detail with statements made to the police. Once again, there is no evidence to suggest that at the time of the exchange AA was in the midst of a mental health crisis. The text exchange also includes communications directly with the respondent. Once again AA makes direct allegations of the alleged abuse. There are references to wrongdoing by other persons which will no doubt be the subject of argument about the editing of the messages. However in respect of the message singled out above and the message on the same date at 10:41PM, I think there is a clear statement of the allegations.
With two exceptions, I am satisfied that the circumstances in which the various histories and complaints were given were such that it is highly probable that the statements were reliable. In summary, the statements are largely consistent with each other, they were made by a person who would have been significantly affected by the alleged activities, the passage of time is not of itself a barrier to the reliability of recollection and there is no reason to suspect that AA would not have had regard to the fact that when she was speaking to the police, she understood the necessity to tell the truth and the ramifications of not telling the truth.
The first of the exceptions is the statement made by AA when she was an inpatient at the St John of God Hospital in November or December 2003. This was in the midst of an admission for postnatal depression. There is no medical evidence as to AA’s condition when the complaint was made. It may have been influenced by AA’s fluctuating mental state. I am not satisfied that it was made in circumstances that would render it highly reliable.
The second exception is the alleged complaint made to AA’s niece in 2018. The complaint is made in very general terms and seemingly, at least in January 2018, out of a relevant context. I am not satisfied that the test in s 65(2) has been surmounted.
Accordingly, as far as s 65 is concerned, I think all of the representations are admissible with the exception of the alleged complaints made to AA’s husband in 2003 and to AA’s niece in 2018.
Against the result I have just reached, the respondent relied upon ss 135 and 137 to prevent the admission of the representations. The respondent pointed to AA as being the sole source of the evidence against the respondent. The respondent submitted:
Here an assessment of the evidence is required. It can be stated in short compass. The evidence is that of the complainant. There were no eyewitnesses, there was no contemporaneous complaint. The inability to challenge this evidence whatsoever militates towards exclusion. (Written submissions at [18]).
Burns J, in Munro, provided a useful approach to s 137, at [87]:
What s 137 requires is a balancing process. The fact that evidence has the potential to be prejudicial, even unfairly so, is not sufficient to justify its exclusion under the section. The court must balance the probative value of the evidence against the danger of unfair prejudice to the accused, and it is only where that danger outweighs the probative value of the evidence that the section mandates exclusion. The probative value of Mr Grace’s statement was considerable, and the danger of unfair prejudice, in the circumstances, was low. I am satisfied that the evidence was rightly admitted.
The circumstances in Munro were very different so that a comparison of Mr Grace’s statement cannot be made with the representations made by AA. Nevertheless, AA’s representations are very probative. It is not that they are the only evidence against the respondent, rather it is that they provide the detail of the allegations against him.
Had AA been able to give evidence in Court, subject to rules of technical admissibility, her evidence could not have been the subject of objection. The prejudice that exists, as stated by the respondent, is that the evidence cannot be challenged. In other words, there can be no cross-examination of AA.
I accept that the cross-examination in this matter would go beyond mere suggestions that events did not happen. Mr Jackson pointed out a number of areas where there might be fruitful cross-examination. These included the effects on her recollection of the complainant’s mental health history, the allegations made against other family members (for example against another brother as seen at page 37 of Ms Priestly’s affidavit) and inconsistencies of recollection (for example compare the description in the answer to Question 7 on page 34 of the affidavit to the detail in the text message on page 133).
In emphasising the asserted inability to test AA’s version, I was referred to the decision of the New South Wales Court of Criminal Appeal in R v TAI, Alatini [2016] NSWCCA 207. This matter came before the Court as an interlocutory appeal by the Crown contesting a decision by the trial judge to exclude certain evidence under s 135. The appeal was dismissed. Beazley P observed, at [46]:
I am satisfied that his Honour’s decision to exclude Mr Ninnes’ statements was not because the investigation was inadequate per se, but because it was apparent from the material before his Honour that cross-examination of the available witnesses would not allow the respondent to properly investigate Mr Ninnes’ reliability and credibility.
Garling J said, at [49]:
I would wish to add that I am satisfied that the decision made by Hanley SC DCJ was the correct one. The course of the trial proposed by the Crown was one which gave the respondent very limited opportunities to test the Crown’s case against him. In light of that proposed course, the tender of the victim’s version of events through other witnesses, in circumstances where the victim could not be cross-examined, was demonstrably unfairly prejudicial to the respondent.
If one supplements Garling J’s comments with the extra consideration in this case that there is effectively no other evidence against the respondent besides that contained in AA’s representations, then the “limited opportunities to test the Crown’s case” referred to by his Honour, arguably become in this matter, effectively ‘no opportunities to test the Crown case’.
The Crown made this written submission, at [37]:
The previous representations are highly probative to the applicant’s case in respect of count one, and the charge will fail if they are excluded. This consideration must weigh heavily in favour of their admission.
The submission is correct in emphasising the importance of AA’s evidence, but it also confirms the significance of the respondent’s inability to test the Crown case.
Although the tests in ss 135 and 137 might be seen as different, I think they both involve the balancing act referred to by Burns J in Munro.
The inability to cross-examine is of course very important, especially where there are identified areas of specific cross-examination going beyond a mere denial that events occurred. It is prima facie unfair to deny an accused person the ability to cross-examine his or her accuser.
The question here is whether this unfairness or prejudice can be balanced by stern directions to the jury. A criminal trial, before a judge and jury, is fundamentally based upon the former dictating the law, but the jury deciding the facts. A jury is directed to find the facts and apply them to the law as stated by the judge.
A judge, in giving directions to a jury, does so on a number of topics, ranging from the onus and burden of proof to the legitimate use of inferences. Juries listen to and apply the directions. There is no reason why directions and warnings that would accompany an inability to cross-examine would not be taken most seriously by a jury.
Heydon JA, in R v Clark [2001] NSWCCA 494; 123 A Crim R 506, at [164], observed that:
The deceased was not there for cross-examination, but if the impossibility of challenging the veracity of hearsay statements by non-witnesses were generally to justify, or were often to be a significant factor in justifying, a decision to exclude evidence in the court’s discretion under s 135 or by reason of a finding of “unfair” prejudice under s 137, the result would be to write the hearsay exceptions out of the Act to a large extent. That outcome would be contrary to the legislative intention: cf Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 571 per Hutley JA.
The present case will involve an assessment of the evidence of a single person. As alluded to in Munro, at [26], the cross-examination of AA would be “well within the imagination of the jury” and could be “raised by counsel in addressing the jury” and would be “taken into account by the jury in assessing the weight of the evidence”.
A direction in a case involving a single essential witness scenario (a ‘Murray’ direction) is already powerful. The added weight of a direction about an inability to cross-examine that sole witness will cumulatively provide a significant answer to the suggestion of prejudice arising from the absence of cross-examination.
In R v Bauer [2018] HCA 40; 266 CLR 56 at [73], the High Court made the following observation about unfair prejudice:
Despite textual differences between the expressions "prejudicial effect" in s 101, "unfairly prejudicial" in s 135 and "unfair prejudice" in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.
Utilising this observation of unfair prejudice, I think the issue in this case comes down to whether or not there will be a risk that the “jury will use the evidence improperly in some unfair way”. This in turn comes back to the directions to be given to the jury. As I have suggested, this is a case that will require stringent directions on the use that can be made of the representations and in particular of the considerations that will apply because the respondent has not been able to cross-examine AA.
Ultimately therefore because of the high probative value of the representations and the capacity for directions to the jury to be able to be made to confront the respondent’s inability to cross-examine AA, I think those parts of the representations that I have decided qualify under s 65 and should not be excluded by reason of either s 135 or s 137.
I make the following orders:
(i)The Crown is permitted to adduce the evidence of AA pursuant to s 65 of the Evidence Act 2011.
(ii)The leave given in the preceding order is subject to the following restrictions:
1.The leave applies only to the representations made in the following documents:
a. The statement made by AA to NSW Police on 23 October 2019.
b. The evidence in chief interview conducted on 15 July 2020.
c. The text message exchanges between AA and the respondent and between AA and the respondent’s wife.
2.The use of the representations in the trial is subject to any specific rules of evidence as to their individual admissibility.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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