R v Woodrow

[2016] ACTSC 59

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Woodrow

Citation:

[2016] ACTSC 59

Hearing Date(s):

30 March 2016

DecisionDate:

30 March 2016

Before:

Robinson AJ

Decision:

Evidence excluded

Catchwords:

.

CRIMINAL LAW – EVIDENCE– application to exclude evidence – whether evidence should be excluded under s137 Evidence Act 2011 (ACT) – judicial discretion to admit or exclude evidence – evidentiary matters relating to witnesses – exclusion of a prejudicial evidence in criminal proceedings

Legislation Cited:

Evidence Act 2011 (ACT) (The Evidence Act), ss 55, 59, 65 (2) (b), 137

Parties:

The Queen (Crown)

Zachari John Woodrow (Accused)

Representation:

Counsel

Ms S Saikal (Crown)

Mr G Theakston (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number(s):

SCC 15 of 2015

ROBINSON AJ:

Application to exclude the evidence of Therese Gibbons

1. The witness, Therese Gibbons, was apparently present at the scene of an incident, the subject of the indictment in this matter. That incident occurred on 14 September 2014.

1. The witness gives some confirmation to the complainant’s testimony of an assault upon him by two men, one of which is the accused.

1. On the night of the incident the witness had a recorded conversation with a police officer at the scene and subsequently this was transcribed into a document entitled Record of Conversation.  Also on that day the witness had made a Triple 000 call to an operator to report the incident. Both of these recordings were played on the voir dire to the Court.

1. The witness suffers from schizophrenia with multiple hallucinations (said to total 10 voices in all). This condition existed well prior to the incident in question and continues to this day.

1. It is agreed between the parties that the witness is currently “unavailable” within the meaning of the Dictionary to the Evidence Act, that is, mentally unable to give the evidence and it is not reasonably practicable to overcome that inability.

1. The recordings played to the Court appear to be coming from a person able to perceive the true reality around her and the circumstances surrounding the events of the assault. However, her treating psychiatrist Dr Javed, who has treated her since March 2013, gave evidence on the voir dire that;

[h]aving heard those two conversations, one with the triple 0 operator and one with a constable of police, are you able to say anything about Therese Gibbon’s mental state at that time in the sense of whether she was able to perceive events normally? --- Yes just based on this conversation and triple 0 one, there’s nothing in this transcript or the way she was talking that suggest she was experiencing a mental illness at the time or in fact her auditory hallucinations. However that doesn’t mean that she wasn’t so I can’t...

No you can’t detect anything. What you’re saying is you can’t detect anything on the basis  of that conversation but that would not... That wouldn’t be an exclusion. It wouldn’t exclude it? --- No

1. Also to the same effect there was evidence on the voir dire from Rebecca Brown who has been the witness’ mental health case manager for two years arranging her day to day activities;

Ms Saikal: Ms Brown, my friend asked whether from time to time what Therese said might be a fabrication and you said yes? --- Not in Therese’s mind but it’s a delusion, not reality. Therese would believe that it is real but it’s not something that has actually happened.

His Honour: You mean she can’t perceive what reality is? ---That’s correct.

Ms Saikal: Are you able to make any comment, having listened to that phone call that’s just been played, whether or not that might be a fabrication in terms of the things that Therese is relaying or...? --- Obviously, I didn’t see the event, so I can’t really tell you if it was a fabrication or not.

His Honour: Is it correct to say that you couldn’t be certain one way or another about the perception of the events, even having listened to that conversation? ---That’s correct.

The Application

1. The application to exclude the evidence contained in the Record of Conversation and the Triple 000 call was made upon two bases;

(a)On the combined effect of ss 55, 59 and 65 (2) (b) of the Evidence Act.

(b)On the basis of excluding the evidence under s 137 of the Evidence Act.

I do not consider this a case of fabrication within the meaning of s 65(2) (b).

1. Under s 137 I must assess the probative value of the evidence. I bear in mind there will be no chance to cross examine upon it. There is a distinct difficulty with the form of the evidence contained in the Record of Conversation. It is not clear, from the text of that document, what the witness actually saw or heard or whether she assumed a fact, or was told a fact.

1. If the witness was able to give evidence at a trial, the above difficulties would be ironed out. The Crown Prosecutor would frame her questions to elicit what the witness actually saw and actually heard. However, that will not happen. Accordingly, the probative value of the evidence is in question.

1. Also there is unfair prejudice.  It just cannot be ascertained, in the circumstances, whether the testimony is reliable.  Despite the appearance of normality in the witnesses’ perception of events in her two narratives made on the day of the incident, the question is whether that appearance of normality is misleading.  I do not think the jury, who will never meet the witness can be left to speculate on it when the treating psychiatrist would not do so herself.

1. On balancing these considerations I exclude the evidence of Therese Gibbons under s137 of the Evidence Act. Upon my above analysis, there may be other reasons to exclude the evidence in addition to s137. It is not necessary to go into this further for the purposes of disposing of this application.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Robinson AJ

Associate:

Date: 05 April 2016