R v Pikula-Carroll

[2019] ACTSC 352

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Pikula-Carroll
Citation:	[2019] ACTSC 352
Hearing Date:	9 December 2019
Decision Date:	12 December 2019
Before:	Burns J
Decision:	See [13]
Catchwords:	EVIDENCE – PRE-TRIAL APPLICATION – Admissibility of certain evidence – admissibility of previous representations of the alleged victim – alleged victim not available to give evidence – previous representations made before alleged victim’s death –
consideration of s 65 of the Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT) ss 59, 65
Parties:	The Queen (Crown/Applicant)
Jason Norman Pikula-Carroll (Accused/Respondent)
Representation:	Counsel
A Williamson (Crown/Applicant) J Purnell SC (Accused/Respondent)
Solicitors
ACT Director of Public Prosecutions (Crown/Applicant) Bevan & Co (Accused/Respondent)
File Number:	SCC 109 of 2019
BURNS J

1.       The accused, Jason Norman Pikula-Carroll is awaiting trial on a number of charges arising out of incidents alleged to have occurred on 22 September 2016 and 3 November 2016. The charges alleging offences on 22 September 2016 include charges of aggravated burglary, assault occasioning actual bodily harm and intentional wounding. The alleged victim of those offences was Eden Waugh. The charges alleging offences on 3 November 2016 include a charge of murdering Eden Waugh.

2.       The Crown alleges that the accused was involved in a home invasion at the residence of Eden Waugh on 22 September 2016 in which drugs and money were demanded from Eden Waugh. It is alleged that the then partner of Mr Waugh, NC, was also present during this incident. It is alleged that in the course of that home invasion Mr Waugh was struck with machete to his right wrist causing a deep laceration. The accused is alleged to have struck the deceased in the head with the butt of the shotgun leaving a laceration. The Crown alleges that the accused became aware shortly after that incident that he was a suspect. It alleges that the accused and two other males returned to the residence of Mr Waugh on 3 November 2016 and tried to force entry into that residence. It is alleged that the accused was armed with a crowbar and one of the alleged co-offenders was armed with a 12 gauge sawn-off double barrel shotgun and he was carrying a bag with a machete inside. Mr Waugh attempted to stop the offenders entering his residence by pushing up against the door. It is alleged that the

accused’s co-offender fired a shot through the front door at close range, knowing that

Mr Waugh was behind the door. The pellets penetrated through the door and entered

the deceased’s chest, fatally wounding him.

3.       The accused’s trial is due to commence on 30 March 2020. By an application dated

26 November 2019, the Crown has sought orders that pursuant to s 65(2) of the Evidence Act 2011(ACT) (the Evidence Act) it be permitted to lead evidence of previous representations of Eden Waugh at the trial of the accused as set out in a Notice of Intention to Adduce Evidence of Previous Representations dated 26 November 2019. The primary basis for the application is that Mr Waugh is not available to give evidence, and that before his death he made a number of representations which are relevant to facts in issue in the trial.

The application

4. The hearsay rule is set out in s 59 of the Evidence Act. It provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. The Evidence Act provides a number of exceptions to the hearsay rule. Section 65 provides for an exception to the hearsay rule in criminal proceedings if a person who made a previous representation is not available to give evidence about an asserted fact. In particular, and relevant for present purposes, 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:

…

(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.

…

5. Before I turn to the alleged representations the subject of the application, I will observe that the application was opposed by the accused. Senior counsel appearing for the accused made brief submissions to the effect that there were two grounds for that opposition. The first ground is based upon s 137 of the Evidence Act, which provides that in criminal proceedings the Court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Senior counsel for the accused identified the unfair prejudice as the inability of the accused to cross-examine with regard to the representations said to have been made by Mr Waugh. The second ground, which I also apprehend to be based on s 137, was to the effect that it would be unfair to admit the evidence in circumstances where Police could have audio recorded the representations, or at least some of them, said to have been made by Mr Waugh, but did not do so. There is no particular substance to either of these objections. It is axiomatic that in circumstances where the prior representations of an unavailable witness are admitted pursuant to s 65 that the witness will be unavailable for cross-examination. Having considered the representations which the Crown proposes to lead they are not of a nature that would make it unfair in the circumstances for the Crown to be permitted to lead the evidence. The Police were under no legal obligation to audio record their conversation with Mr Waugh. The probative value of the representations is moderate, but the danger of unfair prejudice is slight. I will nevertheless consider each of the representations.

6.       The first previous representation said to have been made by Mr Waugh, and which is the subject of the present application, is said to have been made to Detective Senior Constable Paul Reynolds on 22 September 2016 at a time after 9:25 am at The Canberra Hospital. It is alleged that Mr Waugh made the following representations concerning the events that occurred earlier on the morning of 22 September 2016:

(a) he was at home with his friends David Baxter, Jairo Cajina and a female called

“Jamie”;

(b)	there was a commotion at his front door and three males forced their way inside;
(c)	one of the males he knew as “Jason”;
(d)	Jason was of a stocky build and part Islander in appearance. He had tattoos and was holding a double-barrelled shotgun;
(e)	Jason told him (Mr Waugh) to sit down on the couch which he did;
(f)	Jason then struck him to the head with the butt of the gun;
(g)	the men demanded cash and drugs from him, but he (Mr Waugh) did not think they found either;
(h)	a second male was tall and skinny with blonde hair. This man was holding a

machete which he swung at Mr Waugh’s head suddenly and without warning;

(i)       he (Mr Waugh) held his hands up to shield himself and the machete struck his right hand leaving a deep cut;

(j) during the incident Mr Cajina climbed out of the window.

7.       I am satisfied that this alleged representation was made shortly after the occurrence of the facts asserted in the representation. The representation was made in the course of an interview with Police. This is not determinative of the admissibility of the representation, but it demonstrates that the representation was not off-the-cuff or made in circumstances where the maker of the representation would not understand that they were expected to tell the truth. It is not alleged that Mr Waugh identified the accused as the person he referred to as Jason, or any other person involved in that incident. There appears to be no motive for Mr Waugh to have lied about the representations that he made to Police on this occasion. In making his statement to the Police, Mr Waugh would have appreciated that there were other witnesses that Police could interview concerning what had occurred. I am satisfied that these representations were made in circumstances that make it unlikely that they are a fabrication.

8.       The second previous representation said to have been made by Mr Waugh was to his then partner NC. It is alleged that on 22 September 2016, sometime after the incident

in question, Mr Waugh told NC that one of the intruders was a “blonde headed or maybe strawberry blonde headed man with a mullet, who was thin framed”. The Crown cannot

establish precisely when this representation was said to have been made to NC, other than that it is said to have been made on 22 September 2016. In that circumstance, the representation was made less than 24 hours after the alleged event. I am satisfied that the representation was made shortly after the asserted fact happened. In this representation, the deceased has not identified the accused as one of the intruders and has not made any allegations against the accused by name. There was nothing particularly self-serving or beneficial to the deceased in this representation. The deceased would also have been aware that there were other witnesses to this incident who could contradict any false representation that he made. He was also aware that NC was present during the incident. I am satisfied that the representation was made in circumstances that make it unlikely that the representation is a fabrication.

9. The next representation, referred to as representation 2.2. in the Notice, is alleged to have been made by Mr Waugh to NC on an unknown date between 22 September 2016 and 3 November 2016. Mr Waugh told NC that on the morning of 22 September 2016, his wrist was hacked when he held his arm up to protect his head and face, and that he got a slit to his eye when he was hit with a shotgun butt. Mr Waugh told NC that he told the intruders that they should leave due to the sirens in the distance. I cannot be satisfied that this representation was made shortly after the asserted fact happened, so that the representation is not admissible under s 65(2)(b). The admissibility of this representation depends upon the prosecution establishing that it was made in circumstances that make it highly probable that the representation is reliable: s 65(2)(c). There is no evidence to suggest that Mr Waugh stood to benefit from lying to his then partner about this incident. There is no suggestion that this representation is in some way self-serving. Mr Waugh would also have been aware that, as another witness to the home invasion, NC would be likely to be aware if he fabricated his version of what occurred. I am satisfied that this representation was made in circumstances that make it highly probable that the representation is reliable.

10. The third representation is alleged to have been made by Mr Waugh to LT on an unknown date between 21 September 2016 and 3 November 2016. At that time, it is alleged that Mr Waugh had stitches above his eye. It is alleged that he told LT that he was hit with the barrel of a gun or by a machete (LT was unsure which item he said). I also cannot be satisfied that this representation was made shortly after the asserted fact happened, and as such the representation is not admissible under s 65(2)(b). The admissibility of this representation also depends upon the prosecution establishing that it was made in circumstances that make it highly probable that the representation is reliable. There is little information in the taped record of interview conducted between Police and LT about the circumstances in which Mr Waugh made the alleged representation. Indeed, it appears that she is not even certain that it was Mr Waugh who made that representation to her. I cannot be satisfied that this representation was made in circumstances that make it highly probable that the representation is reliable. Even if I were to be wrong in that conclusion, I would exclude the evidence under s 137 of the Evidence Act. The uncertainty expressed by LT about whether the representation was made by Mr Waugh, and as to the precise content of the representation means that it can have very little probative value.

11.    The fourth representation is alleged to have been made by Mr Waugh to Detective First Constable Callum Hughes on 28 September 2016 at about 4:15 pm at

the deceased’s unit. It is alleged that Mr Waugh said that he was recovering well after

his surgery, that the surgery took seven hours, that he had got some feeling and movement back in his fingers, that this was the first day that he and NC had been back home, they were scared and did not want to live there anymore, he wants to help the

Police but is scared of retribution and of Jason’s friends, that Jason had been in his

place before and had been in his bedroom, that he was not prepared to provide a statement to Police that day and would think about it for a few days, he asked Police to call him on Friday, and he agreed to sign a consent to release patient medical information form. This representation is alleged to have been made some six days after the asserted facts occurred. It is a borderline case whether this is sufficiently close to the relevant events to justify a finding that the representation was made shortly after those events. It is unnecessary in the present case to reach a final conclusion on this issue, because I am satisfied that the alleged representation is admissible in any event under s 65(2)(c). The representation is alleged to have been made in a formal setting, to a Police officer investigating an alleged criminal offence. There appears to be no reason why Mr Waugh would have lied to the Police. In addition, he did not identify any person other than by the name Jason. In particular, he did not purport to identify the accused. There is nothing particularly self-serving or potentially beneficial to Mr Waugh in the representation.

12.    The final representation is alleged to have been made by Mr Waugh to Detective Senior Constable Tristan Thexton on 28 September 2016 at about 4:20 pm

at the deceased’s unit. This representation is alleged to have been made

contemporaneously to the representation referred to in the previous paragraph. It is alleged that Mr Waugh said that he was not sure if he wanted to provide a statement to Police because he was concerned about his safety. In my opinion, this representation is admissible on the same basis and for the same reasons as set out with regard to the representation referred to in the previous paragraph.

Orders

13.     My ruling therefore is that evidence of each of the representations, except that referred to in [10] above (the third representation), may be led by the Crown at the trial of the accused.

14.     I order that these reasons are not to be published other than to the parties until the

accused’s trial is completed.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

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