R v McDermott (Ruling No 2)

[2015] VSC 646

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0195

THE QUEEN
v
CRAIG MCDERMOTT	Accused

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JUDGE:	J FORREST  J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2015
DATE OF RULING:	17 November 2015
CASE MAY BE CITED AS:	R v McDermott (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 646

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CRIMINAL LAW – Evidence – Admissibility – Hearsay – Whether relevant to a fact in issue – Whether witness may be cross examined by reference to previous representations made by one person to other persons – Evidence Act 2008 (Vic) s 44, 65, 67.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kissane QC with Ms E Ruddle	Office of Public Prosecutions
For the Accused	Ms C Randazzo SC with Mr J Desmond	Doogue O’Brien George

HIS HONOUR:

1. This ruling sets out the basis for directions which I gave concerning the cross examination of Joshua Warzywoda and the admissibility of hearsay statements made by the deceased, Fiona Warzywoda, to a number of persons during the weeks leading up to her death on 16 April 2014.

1. Towards the end of the hearing on 11 November 2015, counsel for Mr McDermott asked Mr Warzywoda several questions relating previous statements made by MsWarzywoda in the months prior to her death.

1. The relevant parts of the exchange were as follows:

MR DESMOND:  Yes Mr Warzywoda, what I was putting to you before the break was that the evidence in that court case on the 26th is that in the afternoon Fiona gave evidence that she'd received a telephone call from Michelle Costa that a teacher had been told things by P to the effect that there had been a threat, that he had a pocket knife and would kill Fiona and that this threat had happened, you know, when he had the kids.  You've told us you were present.  Did you hear her say that in court or not?‑‑‑Yes. 

MR DESMOND:  What I’m putting to you is that she did not say that she had either heard P or that P had said to her on the 24th or for that matter that you had told her on the 24th that you had heard P say, this is on the day of the recovery of the kids, that P had disclosed such a threat.  What do you say to that?  I say that’s untrue.  I did make that statement about the threat. 
I put to you you’re lying?   I put it to you that you weren’t there. 

Did you speak to Fiona after she gave the evidence and told a magistrate on oath that she first found out about this from the teacher on the 26th, that day?   Not about that, no. 

Did she show you and/or did you read an affidavit of hers on      ?   No, I not see or read any of the affidavits.

I just want to put this to you.  That on the 28th she is deposed to the following, 28 March, so two days later?---Yes.

‘That after Family Court law orders were made on Monday the 24th, on Wednesday the 26th March 2014’, that’s para.4, ‘the children were to spend time with the father under the orders, but during the day the Principal of MS Primary School, Mrs De Costa’?   MW for a start.

It says MS in the document, so I’m just reading the document.  ‘P and S’s school says rang me, she said P and S were in distress’ and she speaks about there was a report to the teacher that while the father had them from the 12th to the 24th of March, the father was flashing a pocketknife around them and had threatened to kill ‘their’ it says me, presumably that should be ‘mother’, ‘prior to the matter coming before the Federal Court on Monday the 24th which was the date of the recovery, you follow?   Yes.

1. No notice to adduce hearsay evidence in relation to Ms Warzywoda’s evidence, viva voce or by affidavit was filed by Mr McDermott. Further, there was no attempt by counsel to explain how the requirements of s 44 of the Evidence Act were to be met in relation to putting representations made by another person to Mr Warzywoda.

1. After discussion, counsel for Mr McDermott produced a schedule itemising those pieces of hearsay evidence which they propose to rely upon on in cross-examination of witnesses, including Mr Warzywoda.  This body of evidence essentially relates to the making of a threat, which was identified in paragraph [102] of Ruling No.1.  The prosecution also identified hearsay statements it wished to adduce if the hearsay evidence Mr McDermott relies upon was admitted. 

1. It is necessary, now, to explain the course undertaken by the parties in light of my discussion with counsel.

1. The first issue to be resolved was whether the questioning and potential answers were relevant to a fact in issue in this trial.  In a general sense, the issue is Ms Warzywoda’s knowledge of the threat and, more particularly, when she first became aware of it.

1. The fact in issue, as I follow it, is whether I told Ms Warzywoda of the threat in the car shortly after being picked up by P’s mother at the Sunshine Police Station (as P and her uncle depose), or whether Ms Warzywoda learned of the threat from a teacher at school several days later.  This would lead to two possible scenarios:

·P did not, in the car, tell P’s mother and uncle of the threat; or

·P only mentioned the threat at the urging of P’s family, and particularly Ms Warzywoda.

1. The cross-examination on both Ms Warzywoda’s oral statements and affidavit relates not to a patent inconsistency in Ms Warzywoda’s evidence but, rather, to her alleged failure to include a reference to the car conversation in these statements.  From this, counsel would invite the jury to conclude that the statement was not made in the car and to draw the inferences I have identified.

1. I am satisfied that such a line of reasoning is relevant to a fact in issue.

1. The next question was whether the provisions of s 44 are satisfied.

1. Section 44(1) and (2) reads as follows:

44       Previous representations of other persons

(1)Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

(2)A cross-examiner may question a witness about the representation and its contents if—

(a)       Evidence of the representation has been admitted; or

(b)       The court is satisfied that it will be admitted.

1. As I mentioned earlier, no hearsay notice was given by Mr McDermott.  Ms Warzywoda’s evidence as to her state of knowledge as to the existence of the threat as conveyed by P is first-hand hearsay.  Because of the lack of a hearsay notice, it was not clear what provision of the Evidence Act was relied upon by Mr McDermott to adduce these representations. 

1. Section 65(8)(a) entitles an accused to adduce evidence of a previous representation if it is given by a person ‘who saw, heard or otherwise perceived the representation being made.’ It may also be admissible under s 65(8)(b) if contained in a document containing a previous representation.

1. Section 65(3), referred to at [141] in Ruling no 1, may be another avenue by which this evidence can be adduced.

1. Counsel for Mr McDermott contended that these representations were admissible as prior inconsistent statements pursuant to s 60.  I am not at all sure that such a characterisation is correct.

1. In any event it is not necessary, for the purpose of this ruling, to debate under which provision the evidence is admitted as ultimately there was no contest by the prosecution that the evidence described in the schedule could be admitted.

1. Accordingly, given that counsel has said that they propose to adduce evidence in accordance with the schedule, I am satisfied that this line of cross-examination complies with the requirements of s 44(2) and witnesses may be cross examined by reference to Ms Warzywoda’s hearsay statements to others. Of course, it must be made crystal clear to any witness, particularly children, that this is a statement of another person.

1. I should mention two other matters.

1. First, where a party wishes to adduce hearsay representations relevant to a fact in issue under s 65 (3) or (8), then notice must be given pursuant to s 67. This did not occur. Fortunately the prosecution took no issue, and was prepared to accept the schedule after the issue was raised.

1. Second, Mr McDermott’s reliance on previous representations (under whichever section) enlivens s 65(9) of the Evidence Act, which reads as follows:

65       Exception—criminal proceedings if maker not available

…

(9)If evidence of a previous representation about a matter has been adduced by an accused and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that—

(a)       is adduced by another party; and

(b)is given by a person who saw, heard or otherwise perceived the other representation being made.

1. This provision has been described by some authors as retaliatory.  It is now open to the prosecution to adduce hearsay evidence relevant to other representations that may have been made by Ms Warzywoda to others relevant to her knowledge of the threat.  The prosecution has identified those hearsay parts of the evidence it wishes to rely upon.

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