R v Little & Gamble
[2021] SADC 73
•23 June 2021
District Court of South Australia
(Criminal)
R v LITTLE & GAMBLE
[2021] SADC 73
Reasons for Ruling of her Honour Judge McIntyre
23 June 2021
CRIMINAL LAW - EVIDENCE - DEPOSITIONS - OF ABSENT WITNESS - PERSONS UNABLE TO ATTEND THROUGH DEATH OR ILLNESS - GENERALLY
The accused were charged with aggravated robbery. The prosecution applied to admit out of court statements by the complainant under s.34KA of the Evidence Act 1929 (the Act) on the basis that the complainant was unfit to be a witness.
Held:
The pre-conditions for admission of the out of court statements were satisfied but, in the exercise of the discretion conferred by s.34KD of the Act, the application is refused.
Evidence Act 1929 (SA) s 34KA, KD; Guardianship and Administration Act 1993 (SA); Criminal Law Consolidation Act 1935 (SA) Part 8A; Criminal Procedure Act 1921 (SA) s 111(4), referred to.
R v WR [2019] SASCFC 33; R v Rivkin [2004] 59 NSWLR 284; R v Hayles (2018) 131 SASR 186; R v Haines [2016] SASC 96, considered.
R v LITTLE & GAMBLE
[2021] SADC 73
This is a ruling on an application by the Director of Public Prosecutions for the admission of evidence under s34KA of the Evidence Act 1929 (The Act). The evidence sought to be admitted is that of the complainant, Wade Reece Bobridge. For the reasons that follow I decline to admit this evidence.
The Application
The prosecution alleges that the accused committed an aggravated robbery on 21 November 2018 at Murray Bridge by using or threatening to use force against Mr Bobridge to commit theft by taking a wallet containing two Bank SA cards and keys to the value of less than $200. The circumstance of aggravation alleged is that each accused committed the offence in company with the other.
Section 34KA (1) of the Act provides for the admission of an out of court statement as evidence provided certain pre-conditions are satisfied:
(a)oral evidence of the matters established by the out of court statement would be admissible.
(b)the relevant person is identified to the Court’s satisfaction; and
(c)the relevant person is unfit to be a witness because of a bodily or mental condition.
There is no dispute that oral evidence of the matters established by the out of court statements would be admissible and that Mr Bobridge is clearly identified. The issue is whether Mr Bobridge is unfit to be a witness because of a bodily or mental condition. The second issue to be determined, assuming that he is unfit and that therefore the pre-conditions in s34KA are met, is whether I ought to exercise a discretion to nonetheless exclude the evidence under s34KD of the Act.
The out of court statements that the prosecution seeks to be admitted are as follows:
·A version of events provided by Mr Bobridge to the investigating officer Detective Brevet Sergeant Rochow on 21 November 2018 whilst he was in the Murray Bridge Hospital. That version of events is recorded in Detective Rochow’s notebook.
·Statements in the form of an affidavit provided to Detective Rochow dated 20 January 2019 and 19 December 2019.
·A video of a scene location exercise undertaken by Mr Bobridge with Detective Rochow and Brevet Sergeant Bentley on 29 December 2018.
·Two photographic identification procedures that Mr Bobridge participated in on 21 November 2018 and 23 December 2018. Both of these procedures were recorded on video.
Is Mr Bobridge unfit to be a witness?
Evidence
Mr Bobridge was involved in a motor vehicle accident on 14 June 2020 which has resulted in him suffering a severe traumatic brain injury. The prosecution contends that this renders him unfit to be a witness for the purposes of section 34KA(1)(c) of the Act.
Dr Susan Hooper gave evidence about her qualifications and experience which I accept. Dr Hooper has been working in the area of acquired brain injury and rehabilitation since 1984. She is a senior rehabilitation medical officer at the SA Brain Injury Rehabilitation Services (BIRS). She has been involved with Mr Bobridge’s rehabilitation following his admission to BIRS.
Dr Hooper said that Mr Bobridge suffered a severe traumatic brain injury in a car accident on 14 June 2020. He was treated initially at the Flinders Medical Centre where investigations confirmed a high grade (grade 3) diffuse axonal injury with multiple haemorrhages noted throughout the brain tissues. Dr Hooper described this as a generalised injury of a type usually involved in high-speed collisions. In such accidents, the entire brain is shaken so that damage is caused to the brain at the axonal level rather than causing a blood clot or destroying a large area of brain tissue. Grade 4 is the highest level of damage but grade 3 is considered extremely severe.
Mr Bobridge was transferred to BIRS on 8 July 2020 where he was noted to have post-traumatic amnesia. Dr Hooper said he passed out of this on 15 July 2020; a duration of over one month. During this period, Mr Bobridge was agitated and confused with limited compliance to requests. He had a right sided weakness and required one-to-one nursing supervision to ensure his safety. This was consistent with extremely severe traumatic brain injury.
Whilst an inpatient at BIRS, Mr Bobridge participated in a multi-disciplinary residential rehabilitation program including speech pathology, occupational therapy, physiotherapy, social work, clinical psychology, and neuropsychology in addition to nursing and medical attention. He completed the program and was discharged into supported accommodation on 14 January 2021. He is still attending BIRS as an out-patient. He is subject to an order under the Guardianship and Administration Act 1993. His parents act as his guardian for all major decisions. He also receives ongoing care and rehabilitation funded by the Lifetime Support Authority.
Dr Hooper gave evidence that Mr Bobridge suffered a prior traumatic brain injury in 2003. She did not treat him for this but the records show that he was an in-patient of the Hampstead Rehabilitation Unit between December 2003 and February 2004. This was also a diffuse axonal injury in a motor vehicle accident. It was considered to be a severe injury. On admission to Hampstead, he was wheelchair dependent and his communication was limited. At the time of discharge, he was able to communicate verbally and he was oriented and aware. Whilst he had difficulty with concentration, reduced working memory and visuospatial perception, his remote memory was felt to be good. He continued to attend the outpatients service until 2005. At that time, he was living independently with some support from his parents. He had completed an apprenticeship and had employment. Dr Hooper found it difficult to comment on Mr Bobridge’s cognitive abilities in 2005 because of the limited documentation but she said it appeared as if he was functioning independently in the community. This is no longer the case following the more recent injury.
Dr Hooper said that if people have a second brain injury the effects are compounded. Accordingly, the effects of Mr Bobridge’s brain injury in 2020 are worse than they would have been if he had not had the first accident.
Dr Hooper gave evidence about Mr Bobridge’s current cognitive abilities at some length. Her evidence in chief can be summarised as follows:
·His cognitive ability is significantly reduced particularly as it relates to his executive function. His ability to look at the world, interpret it and make appropriate responses is significantly reduced; his view of the world is very black and white.
·He lacks the insight to be aware of the limitations caused by his injury. He becomes extremely agitated and distressed when shown how the injury has affected his function.
·His short-term memory is significantly reduced. He is only able to remember limited, short, coherent pieces of information. If he is provided with too much information Mr Bobridge either cannot remember it, remembers only bits of it or misinterprets it.
·The impact on his long-term memory is harder to judge. He appears to be able to remember and provide reliable information about what was happening in his life prior to the injury. This includes the incident that forms the basis of the charges. His memories seem to be reasonably intact but there are some holes.
·Mr Bobridge is prone to confabulation if there are gaps in his memory. That is, if he cannot recall a detail, he will often add in another memory. It is not a conscious process; he is not lying but he will come up with a memory that could be something he had seen on television or someone else’s memory that he has taken in. As far as he is concerned it is a real memory but clearly it is not. He is not able to recognise that deficiency in his memory.
·Mr Bobridge cannot concentrate for long periods of time and is prone to cognitive overload in unusual, stimulating, or different situations.
·He is prone to fatigue and drowsiness which affects his cognitive abilities particularly during the morning. He wakes up quite late in the morning.
·Mr Bobridge is prone to verbal and physical aggression linked to his brain injury. Dr Hooper described how, on several occasions in BIRS, Mr Bobridge became verbally and physically aggressive with staff. On occasion, he assaulted staff members including by throwing furniture and, despite the staff being well trained in de-escalation processes, these outbursts sometimes required an emergency call. Whilst the outbursts are often short, they can be distressing for him and others around him.
Dr Hooper gave evidence that these deficits impact upon Mr Bobridge’s ability to be a witness in these proceedings in several ways. Mr Bobridge would not be able to give evidence for an extended period of time. He finds it very cognitively overloading to have a lot of information given to or asked from him. He might manage to give evidence for about 30 minutes but it was more likely in the order of 15 minutes possibly as little as 5 minutes.
Mr Bobridge does not handle stress well. He does not like being questioned and does not have the insight to understand why questions are asked. Mr Bobridge would also likely misinterpret what he was being asked. Dr Hooper did not consider he would be able to provide a detailed and accurate account of the events that are the subject of the charge albeit he could provide some information. His injury adversely affects whether he is able to give a sufficient level of detail, the sort of detail he would provide and whether those details are accurate.
Mr Bobridge can rationally respond to questions being asked but he would find the process of being questioned difficult to cope with. He does not respond well to situations where his version of events is challenged, where he is presented with alternative scenarios or if propositions were put to him that are different to his recall. Likewise, he struggles when the question asked is outside his cognitive ability. He can understand questions if they are relatively short and do not contain multiple parts. When asked whether he would have an ability to be able to receive information, process it and then respond rationally, Dr Hooper said that she thought he would struggle with the rational part of that process. In her opinion, this raises a question about the reliability of his evidence. When he is under stress, Mr Bobridge becomes verbally or physically aggressive. Dr Hooper was concerned about what might occur if Mr Bobridge became aggressive whilst he was giving evidence. At the least it would result in his being unable to proceed for some time due to the effects of these outbursts upon him.
In cross-examination, Dr Hooper agreed that she had doubts about Mr Bobridge’s capacity to give reliable information but could not say that it was not possible for him to do that. He had some continuity of memory and his remote memory was reasonably intact but not 100% intact. It was not impossible for him to be factually accurate and he was more likely to be factually accurate in terms of memories that pre-date his latest injury. In relation to his remote memory, Mr Bobridge’s capacity for accurate and reliable recall was diminished but not extinguished.
Dr Hooper was asked about a number of factors that would assist Mr Bobridge to give evidence. She said that the best time for him to give evidence during the day would be the early afternoon because he is prone to fatigue and drowsiness which affects his cognitive abilities during the morning. He would be assisted by a suitable support person to assist him in the course of giving his evidence and also to de-escalate his behaviour if an outburst started. His parents would be best placed to fulfil that role. Mr Bobridge would be further assisted if he gave evidence in a less stimulating environment such as by audio visual link. Questions asked of Mr Bobridge should be short and not contain any compound or difficult propositions.
Mr Bobridge could only give evidence for periods as short as 15 minutes otherwise he would become cognitively overloaded. Very frequent breaks during the course of the evidence, possibly almost every 5 minutes or so, would be required to minimise cognitive overload. Dr Hooper said that once Mr Bobridge reaches cognitive overload it is challenging for him to access his remote memory. Dr Hooper also said that, knowing Mr Bobridge, she had a strong suspicion that he will reach a point where he will just refuse to answer questions. As far as he is concerned, he has already given evidence in this matter in his police statements and does not need to do more. If directed to answer questions Mr Bobridge does not have the level of judgment or an awareness of what court proceedings mean or why it would be inappropriate for him to continue to refuse to answer questions.
Submissions and Discussion
There is no definition in the Act as to what “unfit” means in the context of s.34KA. The prosecution contends that it is necessary to view the ordinary dictionary definition of the meaning of the term “unfit” in order to gain some guidance. I was referred to the Oxford Dictionary which defines the term “unfit” as being “not fit, proper or suitable for some purpose or end” and the Macquarie Dictionary which has a similar definition “not fit, not adapted or suited, unsuitable, not deserving or good enough”. Some guidance might be gained from the concept of unfitness to stand trial as outlined in Part 8A of the Criminal Law Consolidation Act 1935 (CLCA) and in s.269H but the prosecution submitted that this guidance is limited because of the specific context of Part 8A.
Counsel for the defence on the other hand submits that it is inappropriate to derive a definition from any dictionary. Rather, it is said that the test to be adopted should be a stringent test given the far-reaching consequences of s.34KA of the Act. Specifically, the section countenances the removal of the fundamental common law right of confrontation by an accused as against his accuser and the common law right to cross-examination. It was submitted that the test to be applied should be that set out in s.269H of the Criminal Law Consolidation Act and the case law relating to fitness to stand trial. Section 289 is expressed as follows:
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
I was referred to the decision of the Court of Criminal Appeal in R v WR;[1] this matter an appeal by the Director of Public Prosecutions against an order than an accused was unfit to stand trial under s269H of the CLCA. In reaching its decision the CCA accepted a submission, based on the NSW case of R v Rivkin,[2] that the central question was whether the respondent lacked the capacity to give evidence in his own defence at all as opposed to whether, because of his particular deficits, his capacity to do so is merely reduced. In allowing the appeal the Court said as follows:
Whether an accused is fit to stand trial is not a demanding test.
The findings of the Judge amount to no more than a conclusion that there might be a risk of unreliability in the evidence given by the respondent. The authorities do not support the proposition that the mere possibility some evidence might be unreliable is sufficient to prove that a person is wholly unable to give evidence. In any event, the risk that some evidence the respondent might give is unreliable cannot found the conclusion that he is unfit to give evidence. To be fit to stand trial a person does not have to have an ability to “make an able defence”. All that is required is that he can make a defence. It cannot be that every aspect of an accused’s evidence must be reliable. Even if this was the position, in order to determine the question of fitness the court must know whether the risk of unreliability relates to aspects of the respondent’s evidence which are crucial to his defence or peripheral to it. (citations omitted).[3]
[1] [2019] SASCFC 33
[2] [2004] 59 NSWLR 284
[3] Stanley, J para [62-3]
In R v Hayles[4] the CCA held that an accused is unfit to stand trial in accordance with s.269H(c) only where he is denied the ability to follow the substantial effect of the evidence or the course of proceedings. It is sufficient for a finding that an accused is not unfit to stand trial, that he can understand in a general sense the evidence given against him as he hears it.[5]
[4] (2018) 131 SASR 186
[5] Stanley, J para [34]
Whilst these cases are of some assistance in interpreting s.34KA I do not consider it appropriate to apply the same test. There is a substantial difference between the test for fitness of an accused to stand trial and the requirements of s.34KA. The central issue in s.269H whether an accused’s mental processes are so disordered or impaired that they are unable to receive a fair trial. The factors required to be considered in the context of s.269H are directed to that issue.
Section 34KA deals with the situation of a witness and whether that person is “unfit to be a witness because of a bodily or mental condition”. Fitness to be a witness is a different concept in my view to that of a person’s ability to understand or respond rationally to charges, exercise rights or understand the nature of proceedings. There are however some similarities and, to that extent, the case law on s269H is instructive. In R v WR His Honour Justice Lovell[6] said as follows:
Section 269H does not refer to any specific medical or psychological condition but requires the Court to assess whether the persons mental processes are so disordered or impaired such that he or she is unfit to stand trial when assessed against the criteria set out in the section. An assessment of whether a person is unfit to stand trial cannot be determined simply by reference to a diagnosis. That is the court must assess the “whole” person and how his or her mental processes operate against the criteria in the Act.
[6] At para [79]
In s.34KA the central question is the fitness or otherwise of Mr Bobridge to be a witness in this matter. This involves an assessment of the whole of Mr Bobridge’s complex and difficult condition. Mr Bobridge is suffering from a physical injury that impacts on his cognitive ability. It is not that his mental processes are disordered rather, he has physical injuries that manifest in certain behaviour, abilities, and inabilities.
This will be a jury trial. Mr Bobridge will be the key prosecution witness. The prospect of his evidence occurring in circumstances described by Dr Hooper does not sit comfortably in that scenario. Whilst the Court can make accommodation for witnesses such as Mr Bobridge there is a limit to such arrangements and a point at which it must be acknowledged that a person is simply unfit to be a witness. Mr Bobridge requires, amongst other things, arrangements to give evidence via AVL, his parents to act as court companions, modification of the manner in which questions are phrased and that he give evidence in the afternoon in bursts of between 5 to 15 minutes. Even with these arrangements there is a likelihood, as I understand Dr Hooper’s evidence, that he will refuse to answer questions or become stressed. In those circumstances, he is likely to act in a physically or verbally aggressive manner. Alternatively, he may answer questions but reach a point of cognitive overload where he becomes physically unable to answer questions for an indeterminate period. Added to this are Dr Hooper’s concerns about the reliability of Mr Bobridge’s memory of the charged events and the possibility of confabulation. In all of the circumstances, it is my view that Mr Bobridge is unfit to be a witness.
Accordingly, I consider that the preconditions for admissibility of Mr Bobridge’s out of court statements as evidence being satisfied.
The Discretion
Section 34KA of the Act abrogates important common law protections. The abrogation of those common law protections is subject to the discretions conferred and preserved by s.34KD of the Evidence Act to exclude such evidence. Guidance as to the manner in which the discretions ought be exercised can be obtained from n R v Haines;[7] Chief Justice Kourakis set out a number of factors to be considered in exercising the discretion as follows[8]:
[7] [2016] SASC 96
[8] Para [40]
The forensic unfairness resulting from the loss of those protections in all of the circumstances of the particular case must be evaluated. The considerations relevant to that exercise include:
·The value of the evidence.
·The significance of the statement to the prosecution case overall
·Whether the statement is supported in material respects by other prosecution evidence.
·Whether the statement constitutes a major part of the prosecution case.
·The reliability of the evidence that the statement was made
·The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken.
·The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement.
·Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify.
Mr Bobridge is the complainant. His evidence is crucial. It is the only direct evidence as to the attack itself. He describes, at least in part, the identity of the attackers, what they did, what was taken from him, the nature of the attack and the location. This evidence cannot be given by anyone else. It is probative evidence on the prosecution case.
The prosecution contends that Mr Bobridge’s evidence is supported in material respects by other prosecution evidence. There is circumstantial evidence supporting the occurrence of a robbery in the circumstances described by Mr Bobridge. Specifically, Mr Bobridge was found without his clothing, he was injured and his valuable items were missing. The prosecution says that there is independent support for the accused being the attackers specifically the evidence of witnesses at the Swanport Hotel who observed the accused and Mr Bobridge leaving in company, the evidence of SA Police officers who spoke to Mr Bobridge and the two accused prior to the alleged robbery, the accused’s’ respective admissions to the police that they were in company with Mr Bobridge in proximity to the alleged attack and the location of items of Mr Bobridge’s property on each of the accused.
The prosecution relies on the evidence of Detective Rochow as to the circumstances in which she took the various statements from Mr Bobridge in support of the reliability of the evidence sought to be admitted. Detective Rochow spoke to Mr Bobridge at the hospital. She gained an initial version of events for the purpose of commencing an investigation which she recorded in her notebook. Detective Rochow said that Mr Bobridge had some difficulty speaking because he had a sore throat and he was in pain. He did not however appear to be under the influence of anything at the time she spoke to him and she was able to obtain an uninterrupted version of events. She took down what he said using his words. Mr Bobridge spoke in a direct manner and she was able to take notes as he spoke.
Detective Rochow spoke to Mr Bobridge on a number of occasions starting on 23 December 2018 to obtain the statement signed on 20 January 2019. She explained the process by which she did this. She followed a similar process in relation to the addendum statement signed on 11 December 2019. She had no concerns about his reliability or the accuracy of what he said. He understood the questions that were asked of him and he gave answers in response to those questions. Prosecution invited me to accept Detective Rochow’s evidence that she used the witness’s words when taking statements as much as possible, that there was no issue with communicating with Mr Bobridge and that he spoke in a slow and direct manner being alert and engaged on each occasion she spoke to him.
Prosecution says that, whilst there are some inconsistencies between Mr Bobridge’s statements, those inconsistencies are relatively minor and do not detract from the overall reliability of this evidence. It is contended that the description of the assault and the specifics of it are consistent and have remained consistent throughout. Minor inconsistencies can be assessed by the tryer of fact at trial.
The prosecution accepts that the question of forensic disadvantage caused by the loss of procedural right to cross-examine must be accorded substantial weight in the application of the discretion but, whilst it is an important factor, there has to be something beyond that mere fact in order to exclude the evidence. The intent of the legislation was to enable the admission of reliable and probative evidence in situations where the witness is unable to be cross-examined because he is unfit. It is said that s.34KB and 34KC operate to ameliorate potential unfairness. Material relating to Mr Bobridge’s credibility can be admitted as part of the trial and become relevant. There is a balancing of the fairness and weighing up of inconsistences in considering all material so that when the tryer of fact comes to make a decision they can make an assessment as to the reliability and credibility of Mr Bobridge.
Finally, the prosecution says that directions can be given to the jury that would ameliorate any forensic disadvantage to the accused in the leading of this evidence.
On the other hand, the defence say that there are significant questions as to the reliability of the evidence sought to be admitted and the circumstances in which it was obtained. Further it is said that the inability to test this in the usual way represents a significant forensic disadvantage to both accused that cannot be ameliorated.
First, defence contends that there are some significant inconsistencies between the different versions of events provided by Mr Bobridge. In the first statement, dated 20 January 2019, the description of the events said to constitute the actus reus of the offence in respect of both accused makes no specific allegation of physical acts of violence on the part of male 1. All the physical acts complained of, including the initiation of the assault, were attributed to Male 2, or were not specifically attributed. Male 1, on the prosecution case, is Mr Little. If Mr Little were to face trial based on that statement, it is contended that it would be a reasonable submission that the statement was incapable of establishing the actus reus against Mr Little as an individual although it is conceded that there might be arguments about common purpose or joint enterprise.
In the second statement, dated 19 December 2019, Male 1 is said to initiate the assault. In addition, other physical acts previously unattributed or attributed to Male 2 are attributed to Male 1. There is also arguably a different description as to the mechanics of the removal of Mr Bobridge’s pants. There is no explanation for this change in version either in the statement or in Detective Rochow’s evidence.
I note that, whilst far from clear, the video recording of the drive-in which police attempted to have Mr Bobridge identify the scene of the robbery suggests a version of events largely similar to the first statement. That is, the only attribution of physical assault is made in respect of the “large guy”, who Detective Rochow said she took to be Male 2.
In the notes taken by Detective Rochow at the hospital, Mr Bobridge gives a description of the two men but, other than saying Male 2 called him a racist, there is no attribution of any specific act to either male. The description of the removal of his pants is different in that Mr Bobridge apparently described being pushed up against a tree as part of the process. There is no mention of a tree in the other descriptions of this act other than as part of a description of the location.
In the first statement Mr Bobridge says that the robbery took place in one of two locations: location one (Owl Drive) or location two (Swanport Road Unity College). These two locations were arrived at following the video recorded drive around with Mr Bobridge. In the second statement, Mr Bobridge states
I am clear now that the assault took place on Swanport Road on the grounds of the Unity College junior campus. The fence there is low and there are trees there close to the road which I remember.[9]
[9] Para 7 Affidavit of Wade Reece Bobridge sworn 19/12/19
Again, there is no explanation why Mr Bobridge has arrived at this position of certainty.
Defence referred me to the Chief Justice’s comments in R v Haines that:[10]
Care should be taken before admitting a statement, the taking of which has not been electronically recorded or observed by someone independent of Police. The taking of the statement for policing purposes is one thing. It is quite another thing to admit into evidence, in place of the sworn of the testimony of a witness, a hearsay statement when it has been taken in circumstances of police control of the kind which I have described.
[10] Para 43
There were some circumstances surrounding the taking of the statement in Haines which caused the exclusion of the statement. Defence contends that there are several aspects of the taking of statements from Mr Bobridge which militate against the admission of those statements.
Three items of evidence were video recorded. These are video recorded efforts to locate the scene of the incident that is the subject of the charge and two photographic identification procedures undertaken by Mr Bobridge. No specific objection is raised in relation to those matters. It is however said to be instructive to view the process by which the police attempted to identify the scene of the incident as aspects of this are contrary to what the process Detective Rochow said she adopted in taking the statements.
Detective Rochow gave evidence to the manner in which she takes statements. In summary, she said that when first spoke to him at the hospital Mr Bobridge provided a version of events which she took down as he was talking. She did not take every word down but took his version down in a chronological way. She did not ask him to adopt and sign the notes but believed it was enough information for police to start the investigation. Her intention was to subsequently get a signed affidavit. She spoke to Mr Bobridge subsequently at the police station, she asked him to provide his version. She commenced typing and if there were any points that she needed clarifying she would ask a question. The statements took a while because Mr Bobridge needed a break. She was guided by his feelings. She initially started the statement on the 23rd December 2018. The scene location process recorded on video took place on 28 December 2018 and his statement was completed on 20 January 2019. He signed it that day. He was invited to read through the statement to see if there were any changes to be made. She could not recall if there were any. Detective Rochow said that it was hard to say whether Mr Bobridge read the statement carefully. She was reading the statement on the computer at the same time. She did not notice Mr Bobridge flicking through the statement too fast to read it. He appeared to be reading it.
The second statement was taken after a proofing by the Director of Public Prosecutions office at the Murray Bridge court on 11 December 2019. Mr Bobridge was asked to read his statement of 20 January 2019. He did this and indicated that he wanted to amend two paragraphs 14 and 15. Detective Rochow’s note indicates as follows:[11]
“Male 1 struck first not Male 2. Male 2 held me from behind. Male 1 grabbed my clothes at the ankles”.
Then para 15
When I was rapping, I used the N word.
[11] TX [36]
Her proofing notes also indicate that further information was provided by Mr Bobridge concerning the location of the assault but not the reason for that information. Detective Rochow then put those changes into the second affidavit that was signed by Mr Bobridge on 19 December 2019.
In taking the statements, Detective Rochow said that she generally used Mr Bobridge’s words. There were some portions of his affidavits where the words used were hers rather than his. Apart from the portions that she identified in her evidence; the statements were taken entirely in his words.
Detective Rochow said that Mr Bobridge’s presentation did not change much on any occasion she saw him. She said his demeanour was similar during the scene location exercise to the occasions she took statements from him. The scene location exercise was video recorded. Detective Rochow described the process adopted in order to locate the scene as follows:[12]
A.We wanted to establish the scene to the best of his knowledge where it says he was assaulted and the best way for him to do that was to basically take him back to the hotel and then we were directed by him as to when to drive, if he wanted to us to stop so he could explain things, that's why we did that. It was all on his direction of where we went.
[12] TX 38 [14-200
It is clear from the video that Mr Bobridge was struggling to identify the location or possible locations of the robbery as police drove from the hotel along a road indicated by Mr Bobridge. After some time, driving, he says “it’s got me bamboozled”. At this point, Detective Rochow suggests that they go to Unity College because police know that Mr Bobridge was there through CCTV footage and it is also where the ambulance picked him up. Detective Rochow describes to Mr Bobridge, in some detail, what was depicted of his movements on the CCTV footage. Throughout the course of the scene location drive Detective Rochow prompted Mr Bobridge’s recollection by providing information as to what the police knew to be correct such as the time at which the police spoke to Mr Bobridge prior to the incident and the first sighting of him on the CCTV footage or asking him to “bear in mind” certain matters such as the fact he had no shoes on, the fact that he had been walking around for some time, the fact here were no lights on and it would have been dark. By this means, the possible location of the charged incident was narrowed down to two places. At the conclusion of the video, Detective Rochow says that she will speak to the night shift patrol to find out exactly where they were when they spoke to him which may assist Mr Bobridge to narrow the location down. It is unclear on the evidence whether that information was obtained and whether it was conveyed to Mr Bobridge and if so, when. It is further unclear whether the provision of such information played any part in Mr Bobridge’s nomination of one location as the scene in his second affidavit.
Defence do not suggest that there is anything sinister about these prompts but contend that it is not the process described by Detective Rochow as being one where the search was guided by Mr Bobridge and where she did not discuss the investigation with the witness. It was said that this feeds into the comments of the learned Chief Justice in Haines that it is one thing for police purposes to take a statement and another to present that in place of the witness’s evidence.
There is also a difficulty with the two affidavits. It appears at least arguable from Detective Rochow’s evidence that these were not properly sworn. The documents indicate that Mr Bobridge took the oath rather than an affirmation. Detective Rochow said that her practice is to say, “do you promise to tell me the truth or if you believe in the bible, you will swear that it is the truth”. She did not have an exact memory of what she said to Mr Bobridge, but that her normal practice is to tell a witness who is taking the oath that they are signing that the contents of the statement is true and correct. She uses the words “true and correct” or “promise”. She did not remember how Mr Bobridge came to swear the two affidavits or whether he had his hand on a bible. The bible was in the room but it was not always her practice to hand the bible to the deponent. She had never had a practice of warning people that if there is anything in the affidavit that they know to be false they will be guilty of perjury and dealt with accordingly.
Defence counsel referred me to the comments of the Chief Justice in Haines[13]made in the context of a statement that was not a sworn affidavit. Prior to the requirement for statements to be taken in affidavit form[14] the standard witness statement used by SAPOL contained a warning at the commencement that it was an offence to give a false statement. The Chief Justice thought it significant that there was no evidence that that this warning had been brought to the witness’s attention. Whilst defence counsel do not suggest that Detective Rochow was specifically required to tell Mr Bobridge that it was an offence to swear a false affidavit it is said that this does not add to the confidence in terms of the reliability of the affidavits and Mr Bobridge’s understanding of their importance.
[13] Para [46-47]
[14] Criminal Procedure Act 1921 s111(4)
Finally, in the first identification video conducted on 21 November 2018 Mr Bobridge identified a photograph, number 8, which was neither accused. There is some confusion because it appears that, notwithstanding the clear instructions given at the outset, Mr Bobridge was under the impression that photographs of both his assailants were in the identification booklet and that he was obliged to nominate both. After nominating photograph 8 as the taller of the two assailants he then looked at the other photographs apparently attempting to identify the shorter heavier man. He then suggests that two photographs may be that person but is unsure. One of those two photographs was Mr Little, the taller of the two accused. In the second identification procedure Mr Bobridge nominates a photograph of Mr Gamble as one of his assailants.
Defence counsel say that these identifications would have been a topic for cross-examination. The accused were in Mr Bobridge’s company earlier in the evening. He knew what they looked like. Was he indicating them because of this or because he remembered them as his assailants? There is, it is said, the possibility of displacement. Further, it is contended that it is not clear the extent to which this identification procedure disrupted Mr Bobridge’s original perception of the narrative leading to the changed version of who did what in the second affidavit.
Mr Bobridge would, in normal circumstances, be the key prosecution witness. I do not accept the prosecution submission that Mr Bobridge’s description of the assault and the specifics of it are consistent and that any inconsistencies are minor. The issues pointed to by defence concerning the changed versions of events in the two affidavits, the change in the actions attributed to male one and male two and the location of the events in question are, in my view, significant. I also consider that there are difficulties with the identification procedures; particularly the first. These are not minor or peripheral issues. They go to the heart of the case against the accused.
The material pointed to by the prosecution as corroborating Mr Bobridge’s account only goes so far. It corroborates the fact of the robbery and the fact that the two accused were in company with Mr Bobridge prior to the robbery. It does not however assist with the issues of when and where a robbery took place and in particular with who did what in the course of any such robbery. There is potential for a cut-throat trial. There is no evidence concerning the reasons for the change in Mr Bobridge’s position from the first affidavit to the second. Those issues would, in the absence of evidence from Mr Bobridge, fall to be determined on the papers.
There are, moreover, issues about the reliability of the account given by Mr Bobridge in the two affidavits. First, there is the concern about the degree of care taken to ensure that the affidavits were properly sworn and that Mr Bobridge understood the significance of the process. Second, there is the concern raised by the process adopted in the scene location video of prompting Mr Bobridge’s memory by reference to other material in the possession of the police. Given that this took place prior to the swearing of the first affidavit it seems likely that this information may have affected Mr Bobridge’s statement. Third, there are the issues with the identification procedure referred to above.
These issues would normally be resolved by a jury by reference to the witness who would ordinarily be available for cross-examination by both accused individually in relation to their particular interests. I accept the prosecution submission that the loss of the procedural right to cross-examine an unfit witness cannot, of itself be determinative of whether their out of court statements ought be admitted. Plainly the other factors identified in Haines need to be considered and weighed. It is my view that the loss of that procedural right in the circumstances of this matter amounts to a substantial forensic unfairness and that the application ought be dismissed.
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