R v Perry (a pseudonym) (No 2)
[2016] ACTSC 340
•13 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Perry (a pseudonym) (No 2) |
Citation: | [2016] ACTSC 340 |
Hearing Date: | 12 September 2016 |
DecisionDate: | 13 September 2016 |
Reasons Date: | 14 December 2016 |
Before: | Penfold J |
Decision: | The application of the hearsay rule to the representations of Lachlan Smith that the Crown seeks to adduce in the trial of Tom Perry is not excluded by s 65(2)(d) of the Evidence Act 2011. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – hearsay – exception if maker unavailable and representation against interests and made in circumstances where likely to be reliable – representations identifying accused made by accomplice who pleaded guilty – mixed statements where partly against interests and partly exculpatory – representations not sufficiently against interests to be likely to be reliable – evidence not admissible. |
Legislation Cited: | Evidence Act 2011 (ACT), ss 65, 65(1), 65(2), 65(2)(d), 65(2)(ii), 192A, Dictionary clause 4 |
Cases Cited: | Munro v The Queen [2014] ACTCA 11 R v Duncan (1981) 73 Cr App.R 359 Williamson v United States, 512 US 594 (1994) |
Texts Cited: | Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12th ed, 2016) |
Parties: | The Queen (Crown) Tom Perry (a pseudonym) (Accused) |
Representation: | Counsel Mr A Williamson (Crown) Mr J Masters (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 218 of 2015 |
Introduction
Tom Perry (a pseudonym) has been charged with six offences, being one burglary, one theft, one offence of taking a motor vehicle dishonestly and without consent, and three offences of obtaining property by deception.
The offences
The burglary took place between 5.40 am and 7.30 am on Friday 12 June 2015 at premises in Ainsworth Street in Mawson. Among the items stolen was a wallet containing a number of credit and debit cards.
At 7.51 am on that day, a man (the first man) used one of the stolen cards to buy cigarettes costing around $83 from a supermarket at Erindale.
Two minutes later another man (the second man) used another one of the stolen cards to buy cigarettes for around $50 at the same supermarket.
Shortly afterwards, the second man used the same card to buy more cigarettes at a petrol station in Wanniassa.
At about 8.05 am on the same day, the second man used the same card to buy a bottle of cognac at a supermarket in Wanniassa for an unspecified amount. At 8.06 am, the first man bought a bottle of bourbon from the same supermarket, using the card he had used in Erindale.
At 8.10 am, the two men went to the Coles Express Service Station in Wanniassa, where the second man tried unsuccessfully to use two of the stolen cards to buy milk and cigarettes. Both transactions were declined. The first man then tried to use one of his own cards, but could not remember his PIN and accordingly could not complete the transaction.
Police obtained CCTV footage showing the various transactions and attempted transactions.
Mr Perry comes to police attention
On 20 June 2015, Mr Perry was interviewed by police about the burglary, the theft, the taking of the car and one of the deception offences. It was not explained how he came to the attention of the police.
He denied any involvement in any of the offences. He was asked about a man called Lachlan Smith, and initially denied knowing Mr Smith. He was charged with two offences relating to the stolen cards.
Mr Smith comes to police attention
On 23 June 2015, Mr Smith was interviewed by police. It was not explained how he came to the attention of police. During that interview, Mr Smith said that on the morning of 12 June 2015 he had gone to his sister’s place in Kambah. Tom Perry had been there, and had asked him for a lift to Erindale. They had driven to Erindale in Mr Smith’s sister’s car, and as they arrived, Mr Perry had produced three cards which he said he had got from somewhere and which, he said, they should use before they were cancelled. Mr Smith said he had taken one of the three cards, and they had then walked into the Erindale Centre separately.
Mr Smith then described various transactions that he said he and Mr Perry had completed or attempted, giving details that were consistent with the facts of the transactions described above. Afterwards, he said, he had given back to Mr Perry the card that he had used, and Mr Perry had also taken the cigarettes and the alcohol obtained by Mr Smith. He had then dropped Mr Perry at his partner’s place at Mawson.
Mr Smith was shown a number of still images taken from CCTV footage of the various transactions he had described, and identified himself and Mr Perry in various of the images.
In due course Mr Smith was charged with offences relating to his use of the stolen cards. He pleaded guilty at an early appearance in the Magistrates Court, and was sentenced.
Further charges against Mr Perry
Several days after Mr Smith spoke to police, charges relating to the burglary and thefts were laid against Mr Perry. These seem to have been laid in reliance on Mr Smith’s statement to police that Mr Perry had given him the card he then used to buy cigarettes and alcohol, and also on the statement of a witness who had given a description of the clothing worn by a man she observed at the scene of the burglary, which was similar to the clothing that Mr Perry was seen wearing in the CCTV footage.
Mr Perry maintained pleas of not guilty, and in due course his trial in the Supreme Court was listed to begin on 12 September 2016.
Preparation for Mr Perry’s trial
A subpoena to Mr Smith to give evidence at that trial was issued, and passed on to the area of the Australian Federal Police (AFP) responsible for serving subpoenas. The last day for service was 5 September 2016.
The subpoena was not served. Unsurprisingly, Mr Smith did not appear on the date set for Mr Perry’s trial.
Application for advance ruling
The prosecutor applied for an advance ruling under s 192A of the Evidence Act 2011 (ACT) that the taped record of interview (TROI) in which Mr Smith admitted his role in the use of the stolen cards and identified Mr Perry as the source of the cards would be admissible in the trial under s 65(2)(d) of the Evidence Act. That application was determined on a voir dire after the jury was empanelled but before the Crown opened its case.
Section 65 of the Evidence Act is relevantly 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.
NoteSection 67 imposes notice requirements relating to this subsection.
...
(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.
...
NoteThe dictionary, pt 2, s 4 is about the availability of people.
Was Mr Smith unavailable?
The first question was whether Mr Smith was unavailable for the purposes of s 65 of the Evidence Act.
The Dictionary to the Evidence Act contains cl 4, which is relevantly as follows:
4Unavailability of people
(1)For this Act, a person is taken not to be available to give evidence about a fact if—
(a)..; or
...
(f)all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person’s attendance, but without success; or
....
(2)In all other cases the person is taken to be available to give evidence about the fact.
The prosecutor submitted that the Crown had taken all reasonable steps to find Mr Smith and to secure his attendance.
The AFP officer in charge of the investigation, Detective Senior Constable Best, gave evidence about the attempts made to serve the subpoena on Mr Smith. She tendered a copy of a document headed “Subpoena Cover Sheet”, which recorded attempts to contact Mr Smith made on 10 different occasions between 5 August and 4 September. The document noted conversations with Mr Smith’s family members, attempts to leave messages for Mr Smith with family members, and messages left on mobile phones, using phone numbers provided by Mr Smith at his earlier police interview or given to police by family members.
DSC Best agreed in cross-examination that, although she had been aware that there were problems finding Mr Smith in order to serve the subpoena, she had remained optimistic that he would be served and would appear at the trial. She said that even as the trial approached she had not attempted to supplement the efforts of the officers responsible for serving subpoenas, except that, roughly two weeks before the trial date, another officer working with her on the matter had placed an alert on the police system noting that if anyone came across Mr Smith they should try to get updated contact details from him. She agreed that she had not personally taken any further steps to find Mr Smith, but pointed out, in effect, that there were other police working on the matter for her, and that it would create difficulties with her shifts if she had taken it upon herself personally to go out looking for Mr Smith.
Under cross-examination, DSC Best was not able to give evidence that police had made any attempt to find a current address for Mr Smith, for instance via ACT Corrective Services, or the electoral roll. Nor could she identify any attempt to ensure that Mr Smith understood that he was being sought in order to serve the subpoena to give evidence. This was significant, because Mr Smith was also at that time suspected of a minor theft committed before the issue of the subpoena and, if he had become aware that police were looking for him, might have assumed that this was in order to lay a new charge. That is, it was not clear that Mr Smith’s apparent disappearance indicated a wish to avoid giving evidence.
For the purpose of determining whether the party seeking to call Mr Smith (the Crown) had taken all reasonable steps to find him and to secure his attendance at the trial, I note first two preliminary matters that I addressed in R v TI(No 2) [2015] ACTSC 208; 11 ACTLR 58:
(a)at [49], that:
the burden of ‘reasonable steps’ was directly commensurate with the importance of the witness’s evidence (ZL v The Queen (2010) 208 A Crim R 325 at [32], Nettle JA); and
(b)at [50], that where the party is the Crown, it is appropriate:
to look not just at the actions of staff of the DPP but also at the actions of other agencies involved with the DPP in bringing a criminal charge before a court (in this case, specifically the actions of the AFP). Such an approach is implicit in the reasoning of the court in R v Kazzi;R v Williams; R v Murchie (2003) 140 A Crim R 545 at [11] to [13], and ZL v The Queen at [23] to [33].
It appeared that Mr Smith’s evidence would be valuable to the Crown, but was not indispensable. There was other evidence available that tended to identify Mr Perry as one of the people who had used the stolen cards on the morning of the burglary, as well as evidence tending to link Mr Perry with other goods stolen in the burglary. The level of effort required of the Crown to ensure Mr Smith’s attendance had to be assessed in that context.
On the other hand, it was clear that the prosecutor, or his organisation, the Office of the Director of Public Prosecutions, could not distance itself from any weakness in the efforts made by the AFP to ensure Mr Smith’s availability to give evidence.
Having regard to:
(a)the efforts that had been made by AFP officers to find Mr Smith and serve the subpoena;
(b)the fact that Mr Smith’s evidence would have been useful but not indispensable; and
(c)the need to recognise that within an organisation such as the AFP, it could not reasonably be expected that officers leading particular investigations or prosecutions would personally perform every task associated with preparing a matter for trial;
I cannot identify any particular steps that in the circumstances would have been reasonable steps to take, but that were not taken, on behalf of the Crown to ensure Mr Smith’s attendance at the trial.
I note in this context that the matters suggested to DSC Best in cross-examination would not necessarily have been at all useful. There was no evidence that Mr Smith was at the time subject to Corrective Services supervision, and if Mr Smith was keeping his family in the dark about his whereabouts (as appeared from DSC Best’s evidence that police spoke to Mr Smith’s grandfather, brother and mother, none of whom were able to say where he was), it seemed unlikely that he would have given a useful contact address to Corrective Services even if he had been subject to such a requirement. In the circumstances, it seemed even less likely that Mr Smith would have taken the trouble to update his address on the electoral roll.
Finally, I am not convinced that even if police had told Mr Smith’s family members that they only wanted to find Mr Smith in order to serve the subpoena, and were not currently pursuing him over the minor theft charge, Mr Smith would have been more inclined to contact police. Indeed, the evidence of DSC Best allows the inference, although not to the exclusion of all other inferences, that Mr Smith was actively avoiding contact with the police at the relevant times.
Accordingly, I concluded that Mr Smith was, for the purposes of s 65(1) of the Evidence Act, unavailable to give evidence in Mr Perry’s trial.
Was Mr Smith’s TROI admissible in whole or in part?
The next issue was whether the hearsay rule was inapplicable to Mr Smith’s TROI under s 65(2) of the Evidence Act. The only provision identified as relevant was s 65(2)(d), which describes the representation as one made, against the interests of the person who made it, in circumstances that made it likely that it was reliable.
Representations against interest?
There was no dispute that some of Mr Smith’s statements in the course of his police interview were admissions against interest, in that he admitted to having used one of the stolen cards to obtain various goods.
However, there was a real question about the extent to which Mr Smith’s representations were against his interests. The identification of which statements were representations against interest, and which of them might have been relevant in Mr Perry’s trial, is considered at [42] to [57] below.
Reliability of representations?
The next question was whether Mr Smith’s statement had been “made in circumstances that make it likely that the representation was reliable” for the purposes of s 65(2)(d)(ii) of the Evidence Act.
The main proposition relied on by the prosecutor to establish that the representations were likely to be reliable seemed to be that the fact that the representations were made against interest of itself made them likely to be reliable. The prosecutor also submitted that the fact that the representations were made under a formal caution, and that Mr Smith’s representations as to how the offences transpired appeared to be corroborated by other evidence, were circumstances making it likely that they were reliable. No other submissions were made identifying anything about the circumstances in which Mr Smith spoke to police that had any particular significance in assessing the reliability of his representations.
I note first that in Munro v The Queen [2014] ACTCA 11, Refshauge J and I took the view, in relation to s 65(2)(c) of the Evidence Act, that a statement made to a police officer, even by a person who in that statement acknowledges an obligation to tell the truth on pain of prosecution, could not be found for that reason alone to have been made in circumstances that make it highly probable that the representation is reliable (at [14]). For similar reasons, the fact that Mr Smith’s statements were made under caution does not in my view make them necessarily reliable.
As to the significance of Mr Smith’s claims being corroborated by other evidence, I am not convinced that this is a circumstance of the making of the statement (as distinct from a separate circumstance possibly relevant to the weight to be given to the statement but not necessarily to its reliability).
I could, however, see no basis for rejecting the proposition that Mr Smith’s representations, to the extent that they were against Mr Smith’s interest, were likely to be reliable. However, the detailed discussion below about which of Mr Smith’s statements were genuinely against interest also raises questions about which of his statements could therefore be considered likely to be reliable
How much of the TROI was admissible?
The prosecutor initially sought the admission of the whole of Mr Smith’s TROI, not only of Mr Smith’s statements inculpating himself in relation to offences constituted by his use of the stolen card but also, in particular, his statements identifying Mr Perry as the source of the stolen card. Later he narrowed the material sought to be admitted, suggesting either tendering a redacted transcript of the TROI or eliciting from the interviewing police officer in oral evidence the specific evidence he wished to adduce.
However, the prosecutor did not resile from the basic application to adduce Mr Smith’s statements about Mr Perry being the source of the stolen cards. The prosecutor based that application on an extended concept of statements against interest.
First, it seems that the test for whether representations are against the maker’s interest is an objective one, and does not turn on the motives of the representor (Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12th ed, 2016)(Odgers) at p 417).
In R vSuteski [2002] NSWCCA 509 (Suteski), one of the grounds of appeal was that the trial judge in the appellant’s trial for murder should not have admitted representations made by an alleged co-offender in a police interview; that person had subsequently been sentenced on a plea of guilty to an offence associated with the murder, but refused to give evidence in the appellant’s trial.
Wood CJ at CL (with whom Sully and Howie JJ agreed) said at [94] that, irrespective of the motives of the alleged co-offender, “any answer which tended to be incriminatory of him was one made against interest”, and that that conclusion “follows from the commonly accepted meaning of a statement against interest”. His Honour at [95] and [96] noted that answers that were incapable of being against interest (eg denials of allegations) had been properly excluded from the trial.
At [92] in Suteski, his Honour had approved the trial judge’s conclusion that “only so much of [the alleged co-offender’s statement] as could be regarded as a statement against his own interests could be admissible under s 65(2)”. However, he rejected the proposition that a statement that also implicated the appellant should have been excluded. The alleged co-offender’s statement was that the appellant “gave me instructions to arrange the bashing”. His Honour explained that “any statement made by [the alleged co-offender] which tended to implicate himself in a joint criminal enterprise with the appellant would qualify” as an admission against interest; the statement in question had that effect and was accordingly admissible.
Clearly Mr Smith made admissions against interest in admitting his role in using the stolen cards.
However, it is not immediately apparent that Mr Smith’s allegations about Mr Perry’s involvement in the incident, specifically identifying Mr Perry as also having used the cards to acquire property, and saying that Mr Perry had given Mr Smith the stolen card that Mr Smith used, were also admissions against Mr Smith’s interest.
The Crown said that these were also admissions against Mr Smith’s interest, in that:
(a)they exposed Mr Smith to prosecution for his involvement with Mr Perry’s use of the stolen cards (presumably, by implicating Mr Smith in a joint criminal enterprise with Mr Perry); and
(b)that in identifying Mr Perry as the “co-offender”, Mr Smith also identified a person (Mr Perry) who might give police information which would strengthen their case against Mr Smith in respect of the offences to which he was in the process of confessing.
The prosecutor submitted that when he made his statement, Mr Smith was liable to be charged with aiding and abetting, or being knowingly concerned in, offences committed by Mr Perry in relation to the stolen cards. I cannot exclude the possibility that such charges might have been laid, but consider that in the circumstances, and especially considering the fundamental claim made by Mr Smith that Mr Perry gave him the stolen card that he used for several transactions, the laying of such charges would at all times have seemed highly unlikely.
In the context of Mr Smith’s explicit admission to the offences constituted by his own use of the card he received from Mr Perry, I see no basis for finding that Mr Smith’s identification of Mr Perry as the source of the card was a genuine admission against interest in that the possibility of Mr Perry giving evidence against Mr Smith might have strengthened the police case against Mr Smith.
In short, I consider the prosecutor’s claim, that the allegations made by Mr Smith against Mr Perry were admissions against Mr Smith’s interests, was at best weak.
I note also that if Mr Smith had by his allegations against Mr Perry done any minor damage to his own position in relation to the stolen card offences, that damage would have been significantly outweighed by the self-serving effect for Mr Smith of identifying Mr Perry as the source of the stolen cards and thereby distancing himself from the potentially more serious offences involved in, or linked to, the stealing of the cards.
Defence counsel noted in this context the evidence of the police informant that the police view was that there was only one offender involved in the burglary, and submitted that this made Mr Smith’s claim that Mr Perry was the source of the stolen card even more self-serving. However, there was no evidence before me to the effect that Mr Smith was aware of that police view when he was interviewed, so no basis for concluding that his identification of Mr Perry was entirely self-serving.
If Mr Smith’s statements in his TROI were to be tendered in a trial of Mr Smith for offences relating to his use of the stolen card (or relating to his liability for Mr Perry’s use of stolen cards), then his claims about the source of the cards, and possibly other material in the interview, might well be admissible, either as minor admissions against interest or as part of what are discussed in Odgers at 419 and referred to in some of the cases, including R v Sharp [1988] 1 All ER 65 (Sharp) at 67 and Spence v Demasi (1988) 48 SASR 536 (Spence), as “mixed statements”, that is, representations some of which are clearly inculpatory and some of which are exculpatory, or both inculpatory and exculpatory depending on the offence under consideration.
As to whether there was any other basis on which other parts of Mr Smith’s police interview might have been admissible, I note that in Suteski, Wood CJ at CL said at [93] that representations against interest should be looked at in context, rather than question by question, and that such representations are admissible to the extent that, when read together, they “constitute an admission or answer against interest, that is, so far as they tended to prove” that the witness had committed a crime.
Treatment of “mixed” representations
Mr Odgers notes (at p.419) that, in the case of representations that are partly “against interest” and partly in the interest of the representor, the appropriate treatment is not specified in s 65 of the Evidence Act. He points out that available options are to admit only those representations that are against interest (citing Williamson v United States, 512 US 594 (1994) (Williamson)) or to admit other representations that qualify, or put in proper context, the representations against interest (citing Spence v Demasi (1988) 48 SASR 536 (Spence) and R v Sharp [1988] 1 WLR 7; 1 All ER 65 (Sharp), applying the common law in relation to hearsay).
Spence was a civil case involving out of court statements by the notional defendant (the negligent driver) against the interests of the effective defendant, being the responsible insurance company (the conclusions about the law applicable in the criminal courts may to that extent be obiter). In that case, Cox J said at 540:
The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statements made out of court in proof of the truth of the matters so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused’s interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts: see R v Higgins (1829) 3 C & P 603; 172 ER 565. The failure of the accused to give evidence may well influence their attitude to the self-serving answers. A modern statement of the practice is found in the judgment of the English Court of Appeal in R v Duncan (1981) 73 Cr App.R 359 at 365:
At 552, Cox J noted that in Sharp the House of Lords “[came] down firmly in favour of the model direction recommended by Lord Lane CJ” in R v Duncan (1981) 73 Cr App.R 359 (Duncan).
Sharp involved an out-of-court statement made by the defendant in a criminal trial that contained both admissions and self-exculpatory parts. At 71.e, Lord Havers, with whom the other Law Lords agreed, said:
the weight of authority and commonsense lead me to prefer the direction to the jury formulated in [Duncan] to an attempt to deal differently with the different parts of a mixed statement. How can a jury fairly evaluate the facts in the admission unless they can evaluate the facts in the excuse or explanation? It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast on the admission, and it is surely only because the excuse or explanation might be true that it is thought fair that it should be considered by the jury. I agree with Lawton LJ that a jury will make little of the direction that attempts to draw a distinction between evidence which is evidence of facts and evidence in the same statement which whilst not being evidence of facts is nevertheless evidentiary material of which they may make use in evaluating evidence which is evidence of the facts. One only has to write out the foregoing sentence to see the confusion it engenders.
Lord Havers went on to amend and answer in the affirmative the question before the court, as follows:
where a statement made to a person out of court by a defendant contains both admissions and self exculpatory parts do the exculpatory parts constitute evidence of the truth of the facts alleged therein?
However, these authorities apply to admissions, and associated statements, made by an accused. Mr Smith is not an accused in this trial. The question of how much, if any, of his representations may be admitted in the trial of another person raises somewhat different questions.
In Williamson, the US Supreme Court declared admissible:
statement[s] which ... so far ten[d] to subject the declarant to ... criminal liability ... that a reasonable person ... would not have made [them] unless believing [them] to be true
However, the Supreme Court said that this rule does not allow admission of non‑self‑inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.
The district court may not just assume for purposes of Rule 804(b)(3) that statement is self‑inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else. “The arrest statements of a co-defendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a co-defendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” (citations omitted)
In summary, Spence and Sharp suggest that where a defendant/accused makes a mixed statement, the whole of the statement is admissible, and that it is up to the jury to make what they will of the exculpatory aspects of the statement; this is especially important as a matter of fairness to the defendant/accused where the exculpatory comments purport to explain or excuse aspects of the inculpatory statements.
Williamson, however, warns that there are dangers in admitting, as part of a mixed statement, an exculpatory statement that implicates someone else, especially a co‑defendant or co-accused. That danger must be more significant in a situation, as here, where the maker of the statement is not an accused, but has already pleaded guilty and been dealt with for the relevant offences; such a person is in the immediate context not at risk of any unfairness, and has no need of the court’s protection from unfairness. On the other hand, by definition, the maker of the mixed statement under consideration for the purposes of s 65 of the Evidence Act has been found to be unavailable, and thus the accused in the trial is already at a disadvantage because there will be no scope for cross-examination of the maker of that statement.
Spence and Sharp relate to a mixed statement by an accused person, and require the admission of both inculpatory and exculpatory parts of the statement as a matter of fairness to that accused person. Where the statement has been made by a witness who is not relevantly an accused person, and the exculpatory part of the statement arises from an attempt to incriminate an accused person, there is no obvious need to provide fairness to the witness, but there is a real issue about fairness to the accused.
In the current context, Mr Smith’s representations, when made, were possibly against Mr Smith’s interest to a minor degree, but were exculpatory in setting Mr Smith at one remove from the burglary that had been the source of the cards used in the deception offences. If Mr Smith had himself been on trial, it is possible, depending on the particular charges being tried, that his TROI would have been admissible.
However, by the time the Crown sought to have Mr Smith’s “mixed statements” admitted against Mr Perry, Mr Smith had no further interest in proceedings relating to the matters dealt with in his statement. There was no basis that I could see for admitting Mr Smith’s mixed representations as a matter of fairness to Mr Smith, and there was potential, and potentially substantial, unfairness to Mr Perry in admitting them against him, because of the fact that Mr Smith’s representations would not be able to be tested in cross-examination.
The inability to cross-examine Mr Smith seemed to me to be particularly significant. Mr Smith’s claim that Mr Perry was the source of the stolen card used by Mr Smith was inculpatory of Mr Smith, if at all, to a very minor degree having regard to Mr Smith’s other admissions, but was potentially significantly exculpatory of Mr Smith in relation to the (more serious) burglary offence. As already noted at [54] above, the benefit to Mr Smith of claiming that Mr Perry was the source of the stolen card used by Mr Smith significantly exceeded the disadvantage to Mr Smith of making that claim.
Conclusion
In summary:
(a)To the extent that Mr Smith’s representations about his own use of the stolen card were genuinely against Mr Smith’s interests, they might have been admissible in Mr Smith’s trial, but would not necessarily have been relevant at all in Mr Perry’s trial.
(b)To the extent that Mr Smith’s representations about Mr Perry as the source of the stolen card were arguably against Mr Smith’s interests, they were so only to a minor degree; those same representations were more significantly in Mr Smith’s interests, which reduced the scope for finding that they were likely to be reliable.
It is inherent in the applicability of s 65 that the person making the representations concerned would not be able to be cross-examined on his or her representations.
I considered that, as suggested in Williamson, representations by a person who has resolved his own liability in relation to the offending behaviour should be generally treated with caution. Furthermore:
(a)when such a person subsequently becomes unavailable for cross-examination; and
(b)where his or her representations would be far more prejudicial to the interests of an accused person than they would have been to the interests of the representor; and
(c)especially where, in relation to the representor’s own interests, any prejudicial effect is clearly outweighed by the beneficial effects;
those representations, and especially the question whether they were likely to be reliable, should be treated with extreme caution.
Accordingly, I was not persuaded that the representations by Mr Smith that the Crown sought to have admitted in Mr Perry’s trial satisfied the requirements of s 65(2)(d), because I was not satisfied that the representations about Mr Perry’s involvement in the offending were sufficiently against Mr Smith’s interests to be treated as made in circumstances in which they were likely to be reliable, and accordingly I declined to admit Mr Smith’s TROI in Mr Perry’s trial.
Sio v The Queen
The High Court’s decision in Sio v The Queen [2016] HCA 32; 90 ALJR 963 (Sio) was handed down shortly before Mr Perry’s trial began, and was not drawn to my attention for the purposes of ruling on the Crown’s application discussed above. However, the conclusions I reached seem to have been in accord with the Court’s views in Sio. It may be useful to note two particular propositions emerging from that decision.
First, the Court indicated that a “compendious approach” to the representations is not appropriate. The Court (French CJ, Bell, Gageler, Keane and Gordon JJ) said at [58]:
It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.
The Court also noted (at [65] the need to recognise that evidence by an accomplice against his or her co-offender is “less than inherently reliable”, and concluded at [72]:
Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v The Queen [44], s 65(2)(c) and (d) and s 85 provide "[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence". It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.
At [73], the Court demonstrated the impact of that proposition by reference to the facts in Sio (Mr Sio was charged with a murder committed when Mr Filihia used a knife to stab the victim in the course of a robbery):
It is sufficient for present purposes to say that a question mark necessarily arose over Mr Filihia's assertion that Mr Sio gave him the knife and put him up to the robbery, by reason of the circumstance that Mr Filihia was Mr Sio's accomplice. Nothing else in the objective circumstances in which the statement was made was apt to shift the balance in favour of a positive finding of likely reliability in respect of this asserted fact. It was not open to the trial judge to be satisfied positively of the likely reliability of Mr Filihia's assertion that Mr Sio gave him the knife by reference to the circumstances in which that assertion was made; and the Court of Criminal Appeal erred in failing to conclude that the trial judge had erred in this respect. The evidence should not have been admitted.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 14 December 2016 |
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate to the Acting Judges with the permission of the Chief Justice. Date: 26 September 2025 |
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