R v WM

[2019] NSWDC 860

District Court

New South Wales

Medium Neutral Citation:	R v WM [2019] NSWDC 860
Hearing dates:	19 and 20 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	The Crown’s application under s 65 of the Evidence Act 1995 (NSW) is granted. The recorded audio record of interview of Michelle Paisa, and the statements of Tim Pago and Stephanie Efu are admitted as, respectively, Exhibits M, N and O.
Catchwords:	CRIMINAL PROCEDURE — special hearing – voir dire – witness statements – record of interview – witness “not available to give evidence” – “fabrication” unlikely – reliability “highly probable” – “made in circumstances” – danger of “unfair prejudice”
Legislation Cited:	Crimes Act 1900, s 578A Evidence Act 1995 (NSW), s 65, s 135, s 137, cl 4 of Dictionary Mental Health (Forensic Provisions) Act 1990, s 14, s 19
Cases Cited:	Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 R v TAI, Alatini [2016] NSWCCA 207 Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Category:	Procedural and other rulings
Parties:	Regina WM (Accused)
Representation:	Counsel: Mr T Abdulhak (Crown) Mr B Robinson (Accused)   Solicitors: Office of Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2015/260022
Publication restriction:	S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses.

Judgment

A. Introduction

1. The accused, Warren Murray*, [1] objects to the tender of an electronically recorded record of interview and two witness statements.

B. Issues

2. The admissibility of the record of interview and the statements raises the following issues:

1. Is the person who gave the record of interview and are the persons who made the statements “not available to give evidence” under s 65(1) of the Evidence Act 1995 (NSW).

2. Were the representations in the witness statements made in “circumstances that make it unlikely that [they were] a fabrication” within the meaning of s 65(2)(b) of the Evidence Act.

3. Were the representations in the record of interview “made in circumstances that make it highly probable that [they are] reliable” within the meaning of s 65(2)(c) of the Evidence Act.

4. Is the probative value of the record of interview or the witness statements outweighed by the danger of unfair prejudice to Mr Murray, and thus to be excluded under s 137 of the Evidence Act, or substantially outweighed by the danger that the evidence might be misleading or confusing such that the Court should refuse to admit the evidence under s 135(b) of the Evidence Act.

C. The Background

3. Mr Murray is charged with engaging in two counts of sexual intercourse with Sarah Martin* without her consent on 28 May 2015. Following enquiry, Mr Murray was found unfit to be tried for the offences under s 14 of the Mental Health (Forensic Provisions) Act1990 and the Court is conducting a special hearing pursuant to s 19 of that Act.

4. The Crown asserts that the relevant witnesses to the incident include a group of six young people who knew each other. Two of the young people have given evidence. There is a recording of a Triple-0 phone call in evidence by another of the group. This application concerns evidence by the other three young people.

5. Tim Pago* and Stephanie Efu* each signed witness statements on the day after the incident. Michelle Paisa* engaged in an electronically recorded interview nearly two years later on 1 April 2017. None of these three witnesses have given evidence at the special hearing.

D. “Unavailability to give evidence”

6. Section 65 of the Evidence Act applies in a criminal proceeding if a person who has made a previous representation is not available to give evidence about an asserted fact. Clause 4 of the Dictionary to the Act provides that a person is taken not to be available to give evidence about a fact if, relevantly:

“(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success,”

and is otherwise taken to be available to give evidence. [2]

7. The officer-in-charge of the matter, Sergeant Aaron Hind-Spiteri, gave evidence about his attempts to find the witnesses and secure their attendance.

(a) Stephanie Efu

8. Sergeant Hind-Spiteri was on 1 April 2019 provided with an address and contact phone number for Stephanie Efu. On 16 April 2019 he called the phone number but it went “directly to an unavailable message with the ability to leave a voice mail”. [3] He left a voicemail, confirmed the number was correct, and sent a text message to the number. He has received no response.

9. On 24 April 2019 the Sergeant attended the address and spoke to someone who identified herself as Ms Efu’s sister and who “indicated” that there was a current apprehended violence order between herself and Ms Efu and that she had not seen her since March 2019. [4] The sister said Ms Efu did not reside and had not resided at that address for 12 months, that she did not know where her sister resided and had no phone number for her.

10. On the same day, the Sergeant located through COPS, the computerised policing system, that Ms Efu had no fixed place of abode and that she routinely took residence at abandoned houses until removed by the police or the Sheriff’s Department. COPS provided a phone number derived from her most recent interaction with police, which Sergeant Hind-Spiteri called, but the number was disconnected.

11. Also on the same day, Sergeant Hind-Spiteri contacted an identified man who was known as the former partner of Ms Efu. That man was obliged under bail conditions not to contact Ms Efu. He said he did not know where Ms Efu resided but “confirmed that she does stay in abandoned houses”. [5] He gave the disconnected number as the last number he had for Ms Efu but said he was not sure if it was current. Sergeant Hind-Spiteri again tried the number and found it to be disconnected.

12. On 26 April 2019 Sergeant Hind-Spiteri made enquiries with the Roads and Maritime Services and found that Ms Efu “did not have any holdings with them”. [6] She had “no licence, customer number [or] vehicles owned”. [7]

13. On 3 May 2019 the Sergeant received confirmation from the New South Wales Electoral Roll that Ms Efu was registered to the address where he had earlier met her sister.

14. Police attended a Plumpton address on 28 October 2019 and spoke to Ms Efu, although her contact details on COPS remained as “No fixed place of abode”. Sergeant Hind-Spiteri attended the next day at the Plumpton address, but no one was home. He left a card and that afternoon the former partner called. He said he was unaware where Ms Efu resided, that she comes and goes to the house, they often “have domestics” but she does not live there. Sergeant Hind-Spiteri asked that he deliver a message.

15. Sergeant Hind-Spiteri then attended a Prospect address and spoke to another woman who claimed to be Ms Efu’s sister. She said the family had not heard from Ms Efu for most of this year and she had no idea where she resided.

16. On 12 November 2019 Sergeant Hind-Spiteri noticed that another police report had been created involving the former partner and Ms Efu at the Plumpton address. The contact detail provided for Ms Efu was a Rooty Hill address where Sergeant Hind-Spiteri then attended but found no one home and left a card.

17. On 14 November 2019 Sergeant Hind-Spiteri found Ms Efu to be a registered voter with an address in Mount Druitt, but COPS identified that Ms Efu was evicted from this address in February 2019.

18. On 15 November Sergeant Hind-Spiteri again attended the Mount Druitt and Rooty Hill addresses. No one was at Rooty Hill and he left a card. At Mount Druitt he spoke to a resident who had been there since April 2019, who occasionally received mail for Ms Efu but did not know her.

19. I am of the view that Sergeant Hind-Spiteri has taken reasonable steps to find and secure the attendance of Ms Efu. Whether he has taken “all” reasonable steps involves a consideration of whether any step he has not taken is reasonable.

20. Whether a step is reasonable is informed, in part, by its likely utility in locating a person or securing their attendance. Many steps not undertaken could be postulated, and some might not be difficult to take, but in my view, they are not relevantly reasonable unless there is also a real possibility that they would locate the person or secure their attendance. [8]

21. Mr Murray submits that the Sergeant could have inquired of the officer-in-charge of the former partner’s criminal matter, since he was on bail. I accept that this could have occurred and was not an unduly onerous step to take. But I am not satisfied that it was a step having any real utility. Any contact information for Ms Efu possessed by that officer would, in the ordinary course, be entered in the COPS system. Indeed, there was information, but it was not of assistance. Without more, I am not persuaded that there was any real likelihood of the officer-in-charge of the former partner’s criminal matter being possessed of more current details for Ms Efu than the initial contact information on COPS.

22. In these circumstances, I am satisfied that Sergeant Hind-Spiteri took all reasonable steps to find Ms Efu, but without success. It follows that Ms Efu is taken not to be available to give evidence about a fact.

(b) Tim Pago

23. Tim Pago was served with a subpoena on 9 January 2019 at an address in Lethbridge Park. Sergeant Hind-Spiteri had no contact phone number for Mr Pago. A police officer attended the Lethbridge Park address on 29 April 2019 and was informed by a woman that Mr Pago did not reside there and that she had no information about where he lived or a phone number, but would pass on a message to him.

24. At 9.30am on 30 April 2019 Mr Pago attended Parramatta District Court, whereupon Sergeant Hind-Spiteri obtained his phone number, called that number, and saw Mr Pago’s phone ring. On that day, Mr Pago could not give evidence immediately and was asked to return at 1pm. He did not return and calls to the phone number went unanswered.

25. On 30 April 2019 detectives attended the Lethbridge Park address and spoke to a woman who “again” stated that Mr Pago did not live there but that she would get a message to him. Sergeant Hind-Spiteri made phone calls and sent text messages to the phone number but all went unanswered. A RMS check revealed that Mr Pago had no licence, no vehicles and no customer reference number with RMS.

26. Sergeant Hind-Spiteri’s checks on COPS showed the Lethbridge Park address as the last known address. He attended that address and there spoke to a woman, Teresa Lang*, about an officer previously attending to get Mr Pago to court. Sergeant Hind-Spiteri recorded that Ms Lang said, “He went to court” and “Well he turned up to court like his subpoena said, it’s not his fault he sent him away he’s done what he needed to so you can’t take out a warrant”. [9]

27. Sergeant Hind-Spiteri explained how a warrant was a last resort and that Mr Pago could be in and out quickly with his evidence, and Ms Lang said, “Well, I’ll tell my daughter and she’ll send another message to him”.

28. Ms Lang denied that Mr Pago was present and said he does not come to the Lethbridge Park place anymore. Sergeant Hind-Spiteri told her that although a warrant had not been issued, one could be obtained if he refuses to give evidence. Ms Lang then repeated that she would tell her daughter, and slammed the door. Sergeant Hind-Spiteri then called the phone number but could not hear it ring inside the premises.

29. That same day, the Sergeant checked the New South Wales Electoral Roll and found that Mr Pago, with his stated birthdate, was not a registered voter.

30. On 6 September 2019 Sergeant Hind-Spiteri saw Mr Pago at Lethbridge Park when attending the street he was supposed to live on. He stopped and spoke to Mr Pago, informed him of the court matter, and served a subpoena on him. Mr Pago said he would attend. Sergeant Hind-Spiteri warned him that failure to attend like the last occasion would result in an arrest warrant being issued. Sergeant Hind-Spiteri obtained a contact number, the same number as previously, called it again and Mr Pago’s phone again rang. Mr Pago provided the same Lethbridge Park residential address.

31. On 28 October 2019 Sergeant Hind-Spiteri attempted to contact Mr Pago on his mobile but it went straight to voicemail. A text message generated no reply. That same day, Sergeant Hind-Spiteri attended the Lethbridge Park address, spoke to Teresa Lang who said Mr Pago was no longer dating her daughter and did not live at the premises anymore. She did not know where he resided and said he had changed his phone number and she had no contact with him. Enquiries of the Electoral Roll again revealed no details of Mr Pago.

32. Again, these matters indicate to me that reasonable steps have been taken. Mr Murray submits that a warrant could have been taken out for Mr Pago’s arrest for failing to comply with a subpoena. I see some force in this submission. There was evidence in the special hearing and referred to, though not specifically tendered on the application, which indicated that Mr Murray was once located and arrested in a different area because a warrant had been issued, apparently for an unintended failure to comply with a bail condition. It is evident that a warrant could lead to the arrest of a person for failing to comply with a subpoena. It was not issued and it is not an onerous task.

33. The Crown resists that submission that it is a reasonable step which Sergeant Hind-Spiteri failed to take, on the basis that a warrant for the arrest of a witness is different from arresting an offender, and there is, in any event, no evidence that it is effective for locating a person who is avoiding giving evidence, as Mr Pago appeared to be. The arrest of Mr Murray mentioned earlier did not involve a mere witness, nor was Mr Murray trying to avoid police.

34. Whilst I accept that a warrant for a witness is perhaps less common, especially where a witness has attended court once in response to a subpoena, than a warrant to arrest an offender, nevertheless, this does not persuade me that such a step was unreasonable. But there is nothing to indicate that such a step would likely be effective in the case of a person like Mr Pago whose location is unknown and who was avoiding contact. It may be enough for a defendant in order to displace the application of subcl (f) of the definition of an unavailable person to suggest a step which is reasonably able to be performed and not onerous which has a real prospect of locating a person or providing information about their whereabouts. In this case, the issue of a warrant conceivably might, but is unlikely to, have this result. It is, in my view, not reasonable without more, such as evidence of its likely effectiveness, or perhaps some evidence of prior notice to the Crown that such a step would be submitted to be reasonable.

35. Accordingly, I am of the view that all reasonable steps have been taken to find Mr Pago without success, and that he is to be taken to be unavailable to give evidence.

(c) Michelle Paisa

36. On 1 April 2017 Michelle Paisa gave and certified the accuracy of an electronically recorded interview with the police.

37. On 19 October 2018 the police issued a subpoena to Ms Paisa via an email address and apparently Ms Paisa acknowledged receipt of the subpoena and provided a contact phone number. Whether service of the subpoena was legally effective might depend on whether Ms Paisa was in Australia at the time of service. [10]

38. On 16 April 2019 Sergeant Hind-Spiteri called the contact phone number but it was diverted immediately to a generic message. He also sent a text message to the number and a week later sent an email to the address at which the subpoena was served. He received no response.

39. On 24 April 2019 the Sergeant attended an address in Mount Druitt which was the last known address of Ms Paisa. A man of South American appearance answered and stated that he had lived in the premises for three months and did not know of Ms Paisa. Sergeant Hind-Spiteri that same day again called the phone number, and also the phone number of Ms Paisa’s mother, but both went directly to a generic voicemail. He left a message but received no response. Inquiries of RMS revealed that Ms Paisa had no driver’s licence or vehicle registered in her name.

40. On 29 April 2019 Sergeant Hind-Spiteri attended an old address of Ms Paisa in Rooty Hill where he spoke to a female who said she had resided at the address for 12 months and received mail for Ms Paisa but did not know her.

41. On 3 May 2019 the Sergeant located a third possible address for Ms Paisa in Cranebrook, attended the premises and found no person. A RMS check of the vehicle in the driveway confirmed that it was registered to a person surnamed Paisa. Other officers were instructed to attend the Cranebrook address and on 5 May 2019 police attended the address and spoke to Ms Paisa’s sister who said Michelle Paisa had returned to reside in New Zealand. That same day, Australian Immigration confirmed to Sergeant Hind-Spiteri that Ms Paisa was a New Zealand citizen who was currently offshore.

42. On 6 September 2019 Sergeant Hind-Spiteri again attended the Cranebrook address to inquire about Ms Paisa’s address and attempt to serve another subpoena. There he spoke to Ms Paisa’s sister who said Michelle had moved back to New Zealand in January 2019 and did not intend to return. She could give no contact details for Ms Paisa. Ms Paisa’s mother then came to the door, she said she had no contact number and only has contact with Michelle when Michelle called her. She was unable to say when the last occasion that had occurred was. Both Ms Paisa’s mother and sister said they had sent Facebook messages to Michelle but “would not supply the social media handles to me” said the Sergeant.

43. On 14 November 2019 Sergeant Hind-Spiteri again attended the Cranebrook address where Ms Paisa’s mother said Ms Paisa was “travelling around”. The mother accepted that she had contacted Michelle but had not sent any messages about the court matter.

44. Again, I find that reasonable steps have been taken to locate Ms Paisa. Mr Murray submitted that contact should have been made with police in New Zealand, but I am not persuaded that any such contact would likely assist in locating her and procuring her attendance.

45. Accordingly, in my view, all reasonable steps have been taken and Ms Paisa is to be taken to be unavailable for the purposes of s 65 of the Evidence Act.

E. Circumstances making fabrication unlikely

46. Section 65(2) of the Evidence Act provides that the hearsay rule does not apply to evidence of a previous representation given by a person in certain circumstances. The relevant circumstance in the case of Mr Pago and Ms Efu is that contained in s 65(2)(b). There is no issue that the representations in their witness statements were made shortly after the asserted facts occurred. Nor was there any dispute that evidence of the representations was given by a person who saw, heard or otherwise perceived the representation being made. In the case of Stephanie Efu, the police witness to her statement, Constable Hannah Taylor, gave evidence. Sergeant Hind-Spiteri was the officer who took Mr Pago’s statement. What is in issue is whether the representation was made "in circumstances that make it unlikely that the representation is a fabrication".

46. The statements of Mr Pago and Ms Efu each contain representations, although each representation needs to satisfy the requirements of s 65 in order to be admitted. Mr Murray did not submit that any representation was relevantly different from any other. Although features of certain representations were identified, Mr Murray expressly submitted that the features he identified should lead either to the exclusion of the whole statement, or it should be admitted in its entirety. To put it another way, as he accepted, he would prefer the whole statement to be admitted rather than a statement which redacted only the offending parts. Mr Murray took the same approach to the record of interview of Ms Paisa.

(a) Statement of Tim Pago

48. Relevantly, Mr Pago's statement made in the hours or the day after the events contains the following representations:

1. Mr Pago says "my mates misses [sic]" who told him "my mate" was in a fight with an African.

2. He ran down the road towards the bridge and saw his mate with an African man.

3. He saw an old lady on the ground with no pants, and an African guy with no pants on.

4. He asked the lady, "Are you alright?", and she said, "I was walking home and this guy had his pants down and he pulled my pants down".

5. He said to the African guy, "Why were you raping this old lady, look how old she is?" And the African guy said, "She was tryin’ to steal my money?" [11]

6. He said, "What money, you’ve got no money?" And the African guy said, "She was tryin’ to steal my money".

7. He pushed the African guy down, pulled him up, and said, "What was going through your head?" And the African guy said, "She tried to steal my money?"

8. He pushed the African guy over again and spoke to the old lady, saying "Do you want me to walk you home?" to which she said, "Yes".

49. The statement is witnessed by Sergeant Hind-Spiteri. No issue in submissions was raised about the question mark in respect of the "African guy's" assertion, and the Crown does not assert that anything said by the African man was an acceptance of the propositions or questions put to him.

50. The circumstances of the making of Mr Pago's statement were relatively contemporaneous with the events described. It was given in a police station, it began with a warning about the need for it to be truthful, it was signed by Mr Pago, Mr Pago was not an accomplice and Mr Pago acknowledged his own conduct in the nature of an assault. These circumstances suggest that it is unlikely that the statement is a fabrication.

51. Mr Murray referred to the age of Mr Pago as 15 years at the time, but I do not think that is a factor in favour of fabrication. It may be that a young person could more easily be overborne by authority, but that and the existence of the warnings seem to point against a fabrication.

52. Mr Murray submitted that there was a desire to protect "my mate" and "my mates misses [sic]", but that desire was evident as it was disclosed by Mr Pago not giving that information. I do not think that the circumstance of Mr Pago being unwilling to identify identities makes it more likely that his representations about the event are a fabrication.

53. In my view, there is no circumstance that indicates the possibility of fabrication, which I take to mean a deliberately false account. The Court must look at the circumstances in which it was made, which could include all surrounding, contemporaneous and pre-existing circumstances, [12] but does not look at the content of the particular representation, that is, the "evidence tending only to prove the asserted fact". [13]

54. Each particular representation must be considered. [14] In this case, the representations are about a location and the state of dress of the "African guy” and the "old lady", the statements of the African man and the conduct of Mr Pago towards the African man.

55. Mr Murray submitted that the rape allegations made have been fabricated to cover the assault of Mr Murray by Mr Pago or his “mate”. However, this submission relies on some of the content of the representations, not anterior or contemporaneous circumstances. In any event, an acknowledgment by Mr Pago of his conduct hardly supresses the existence of an assault by him.

56. Mr Murray also submitted that Mr Pago may have been intoxicated, but there was no reference to evidence of this as a circumstance and again, I do not think proof of intoxication would support fabrication, whatever it might say about reliability.

57. In my view, the circumstances I have listed make it unlikely that any of the representations were fabrications, and therefore the requirements for the admissibility of the representations in Mr Pago's statement for a hearsay purpose under s 65 are established.

(b) The statement of Stephanie Efu

58. Relevantly, Ms Efu's statement contains the following representations:

1. Ms Efu came from doing "church service" at Dawson Mall, Mount Druitt, to meet up with three friends.

2. They were "called" to go and meet another mate on the other side of the railway.

3. One female mate came running as they were crossing the train station concourse, telling her to help Carl* who she knew from school.

4. They ran from the train station, saw Carl fighting with a male near an old lady on the footpath in front of the house opposite the train line.

5. The male with Carl was wearing no pants or underwear and of African appearance. Carl yelled, "[H]ow could you rape [a]n old lady. Look at yourself.” [15]

6. She went to the old lady who was sitting on the ground with her pants off crying, shaking, trying to get up off the ground, saying, "All I was doing was walking home. The African guy pulled his pants down and pulled my pants down and made me lie on the floor".

7. She helped the lady stand up, hugged her, helped her pull her pants up and pick up her stuff.

8. She saw a pair of black boxer shorts on the ground.

59. In my view, the circumstances of the making of these representations are not materially different from those which apply to Mr Pago, and for the same reasons, I find the circumstances make it unlikely that the representations were a fabrication within the meaning of s 65(2)(b). It follows that the representations are admissible for a hearsay purpose under s 65.

F. Michelle Paisa representations: were they made in circumstances making it highly probable that they were reliable

60. Section 65(2)(c) provides that representations made by a person unavailable to give evidence may be admissible for a hearsay purpose if "made in circumstances that make it highly probable that the representation is reliable". The test imposes a higher standard than in s 65(2)(b), presumably because it applies also to non-contemporaneous representations.

61. As indicated earlier in respect of s 65(2)(b), the whole of s 65(2)(c) is concerned with not whether the content of the representation itself is reliable, but whether the circumstances in which it was made make it highly probable that it was reliable. Again, no issue was taken about there being evidence of representations of a person who saw, heard or otherwise perceived a representation as being made, even though neither Ms Paisa nor the officer who conducted the interview, Constable Ari Barr, gave evidence.

62. The relevant circumstances here are that the interview occurred at a police station; Ms Paisa was 16 years old at the time of the interview, 14 years at the time of the events, so the interview was almost two years after the events; the interview was conducted by another police officer; Ms Paisa was warned beforehand of the need to tell the truth; that she was asked and gave answers to indicate an understanding about the difference between telling the truth and lying; and that she signed to the truth of her answers in the interview.

63. A passage of two years is a factor against the high probability of reliability whereas the other factors support reliability.

64. The primary relevant representations contained in the record of interview are as follows:

1. She saw a man at about 8pm on the way to a friend's house walking in the opposite direction.

2. The man was really skinny, walking weird and "he knee goes in [sic]". He looked African.

3. On walking back with three named friends after leaving the friend's house, not long after 8pm, she saw the man again "but he had a lady".

4. She saw "like shadows on the floor…I don’t know, just looked and looked away…I just thought it was someone just laying there".

5. Her ex-boyfriend, Vincent*, with whom she was walking, approached the man.

6. She could not distinguish a male and female until she got closer and saw a male and female laying there.

7. She heard him say the lady had stolen his money or something, or his wallet.

8. She was standing on the road, “they” were on the footpath.

9. She saw that the lady started crying when she stood up. She looked scared but would not talk really.

10. She saw the lady had "her pants and that down". All her layers of clothing were down all the way to her ankles.

11. She thought the lady was wearing track pants, dark grey or black.

12. She saw that the lady was “really, really short”, small, Australian, old and light skinned.

13. She saw the man was trying to play dumb or something, acting like he was lost.

14. She heard the man saying he was just trying to get his wallet back and saying that she took his money.

15. She saw the man wearing brown pants, a hat and a black jacket.

16. She saw the man’s pants were down “probably up to his knees”, but when she and her ex-partner went close he pulled them up and stood up.

17. She had trouble understanding the female.

18. She saw Vincent just hit him straight away and had thrown a trolley at him then hit him with his own hands and punched his head.

19. She saw the trolley hit the man’s legs.

20. She stayed with the lady for 15 minutes.

65. As indicated earlier in these reasons, consideration of s 65(2)(c) is not the occasion to consider the ambit, content or meaning of these representations and their consequent reliability. Rather, it is to consider the circumstances in which the representations were made. However, although the thing asserted, that is, the content of a particular representation [16] is not part of the circumstances, [17] other representations are part of the circumstances, for as the High Court in Sio stated:

“Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made”. [18]

66. None of the statements made in the record of interview seem “inherently incredible, fanciful or preposterous”. There is no suggestion that Ms Paisa was an accomplice. [19] The circumstances suggest “a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed”. [20]

67. Further, the concern of s 65(2)(c) is to the identification of circumstances which warrant a conclusion (to the “highly probable” standard) that the representation is reliable. It is wrong to be “overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation”, [21] notwithstanding what may, in some cases, be the practical difficulty of distinguishing circumstances from the content of representations.

68. Mr Murray pointed to four representations, in particular, that he said were not made in circumstances that were highly probable that they were reliable. A leading question about Ms Paisa seeing a male and a female, [22] Ms Paisa being asked to guess as to how far away she was, [23] Ms Paisa’s representation that “he was like trying to play dumb or something. That’s, acting like he was lost”, [24] and finally, she said of her ex-boyfriend “He was just angry, um. And yeah, and when he was punching him he was just saying, ‘Why would you like do that?’”. [25]

69. Circumstances of a leading question, being asked to guess, and the manner of expression surrounding the representation might be circumstances that point against a conclusion that a representation is reliable. But with any representation, it may itself be couched in uncertainty, so it would be a mistake to treat a representation with caveats as one delivered unambiguously because that is not the representation being made. In any event, I would have been inclined to reject each of these representations the subject of challenge. But my inability to find the reliability of those representations highly probable does not persuade me that other representations of Ms Paisa are not made in circumstances that satisfy s 65(2)(c). And since the defendant specifically requested that all representations should be admitted unless the whole record of interview (which is, all of the representations) is excluded, it follows that none should be excluded. The weight that should be given to any representation in the context of all the evidence is another matter.

70. Finally, I am not persuaded that the two-year lapse of time between the events in 2015 and the interview in 2017 means that the circumstances make the representations less than reliable. But a delay of that sort may be more significant if the representations concern a brief observation of a common place matter. Given the nature of Ms Paisa’s observations over several minutes until the police arrived, I am not satisfied that the delay has caused her account to become unreliable.

71. For these reasons, I find the audio record of interview to be made in circumstances that make it highly probable that the representations are reliable.

G. Exclusion on grounds of prejudice

72. Mr Murray relied upon ss 135 and 137 to have the police statements and the record of interview excluded. He relies principally on s 137 as it imports a mandatory and lower hurdle for exclusion.

73. Section 137 provides the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

74. In this case, the statements in the record of interview contain representations that are plainly probative to the offences alleged. The three witnesses in one form or another recount seeing an African male and an old lady, both with no pants on, on the footpath beside the road. And they observed the woman crying and the man’s reaction to accusations. While these matters do not of themselves directly establish a sexual connection or a lack of consent, elements in the offences, they seem to me to be plainly probative of those matters.

75. What then is the unfair prejudice? With a jury there may be a risk that the value of this evidence by representations is not appropriately reduced because it has not been tested by cross-examination. But this is not a risk in a judge alone hearing. The Court is aware of and must take into account such matters. Matters such as the uncertainty in the way some representations are expressed, the circumstances of the observations, the need to weigh the representation against oral testimony and other documentary evidence, the inability of counsel to cross-examine and the inability of Mr Murray, due to his mental health condition, to give full instructions or to give evidence of his account, and other matters must both be considered and exposed in a reasoned judgment.

76. The inability to cross-examine “is no light thing [as] the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion”. [26] That inability is sometimes a basis to exclude evidence under s 135 and s 137. [27] While this may be somewhat mitigated bearing in mind that Mr Murray has had the opportunity to cross-examine Mr Daniel*, one of the first to arrive on the scene, and Mr Taalo*, one of the second party of the group of youths, yet it is still disadvantageous to Mr Murray. That disadvantage is lessened because this special hearing does not involve a jury and the Court must give a reasoned decision noting the cautions and warnings that apply to any item of evidence, and the Court can perceive the strength of possible challenges that could have been raised in cross-examination.

77. I do not see any unfair prejudice that cannot appropriately be cured, nor do I consider that any misleading or confusing evidence [28] will be wrongly relied upon by the Court, as the Court would consider the form and ambiguity of the evidence in assessing it.

78. Accordingly, I do not propose to exclude the evidence.

H. Conclusion

79. The Crown’s application under s 65 of the Evidence Act is granted. The recorded audio record of interview of Michelle Paisa, and the statements of Tim Pago and Stephanie Efu are admitted as, respectively, Exhibits M, N and O.

**********

Decision last updated: 27 March 2020