Re Griffith
[2021] VSC 316
•1 June 2021
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
CRIMINAL DIVISIONS ECR 2020 306
DIRECTOR OF PUBLIC PROSECUTIONS v GENE CADELL GRIFFITH ---
JUDGE:
Coghlan JA
WHERE HELD:
Melbourne
DATE OF HEARING:
6 May 2021
DATE OF RULING:
1 June 2021
CASE MAY BE CITED AS:
Re Griffith
MEDIUM NEUTRAL CITATION:
[2021] VSC 316
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CRIMINAL LAW – Murder – Representations by deceased – Evidence – Application to admit hearsay – s 65(2)(b) Evidence Act 2008 – Representations made when or shortly after the asserted fact – Unlikely to be fabrication – s 65(2)(c) Evidence Act 2008 – Highly probably representations are reliable – s 137 Evidence Act 2008 – Probative value not outweighed by danger of unfair prejudice – Evidence admitted.
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APPEARANCES:
Counsel Solicitors For the Crown Mr B. Sonnett Ms A. Hogan, Solicitor of Public Prosecutions For the Accused Mr J. Desmond Rainer Martini & Associates HIS HONOUR:
Introduction
1 By notice pursuant to s 67 of the Evidence Act 2008 (‘the Act’) dated 22 December 2020, the Director of Public Prosecutions gave notice that the prosecution intends to use hearsay evidence. That is, evidence of a previous representation by a person to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
2 The previous representations are said to have been made by Mr Alan Wain who is now deceased. The unavailability of the witness Mr Wain is conceded by the defence.
3 The application is made pursuant to the relevant exceptions set out in s 65(2)(b) and (c) of the Act. The relevant statutory provisions are:
S 65 Exception—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—
…
(b) was made when or shortly after the asserted fact occurred 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;
4 The representations relied upon and the details of the person to whom it is said the representations were made are set out in Table A attached to the notice. A copy of Table A is Annexure One to this ruling.
Summary of alleged offending
5 The alleged facts which give rise to the accused, Mr Gene Griffith (‘the accused’), being charged with murder can be stated briefly. On 2 June 2019, Mr Wain and his wife Mrs Patricia Wain, were at home 311 Boronia Road, Boronia. At about 12.40pm Mrs Wain, who was in the backroom of her house heard her husband say ‘No this is not your house’. She heard her husband yell something out and went to the front door. When she went to the front door she saw her husband and a person alleged to be the accused (‘the man’) at the bottom of the steps going down from the front door.[1]
[1]Statement of Patricia Wain dated 29 July 2019, depositions page 50, [22] – [23].
6 Her husband was bleeding from the top of his head. He was near the bottom of the steps and the man was near the caravan parked in the front yard. She asked her husband if the man had hit him and he replied that he had. Although Mrs Wain did not see any blows being struck she observed the man ‘dancing around with his fists up’. She provided a detailed description of the man and his clothing. Mrs Wain then called 000. I was asked by Mr John Desmond, who appeared for the accused, to listen to the recording of the call and I have done so. When she was on the phone, Mrs Wain saw the man come towards her husband and told him to come inside. Her husband came about half way up the steps and the man sat on the steps and asked Mr Wain for a cigarette. During the call, Mr Wain can be heard to say ‘his name is Karl’. At about that time Mr Wain also said ‘we are getting you help’ and the man responded ‘Police, I am not sticking around’. He then went into the caravan and recovered a jacket which he put on. Mrs Wain heard some discussion between her husband and the man about directions. It is part of the prosecution case that the man is observed in CCTV footage in the vicinity and the accused later identified himself on that footage.[2]
[2]Ibid, depositions page 51.
7 Mr Wain told his wife what happened.
8 Police arrived at the house at 1.05pm after the man had left. Mr Wain told the police what happened and pointed out to them some items said to have been left by the man, in particular a pair of Nike runners. The man had left wearing only socks on his feet.
9 Ambulance officers attended at 1.24pm. They took a history from Mr Wain and observed a laceration on his forehead, a bruised lip with dry blood on his hands and face. Mr Wain was taken to the Angliss Hospital. He did not show any acute neurological symptoms or traumatic injury or head fracture at the scene. He complained of headache to the ambulance officers.
10 At Angliss Hospital, Mr Wain was examined by Dr Shalina Navaratnam, who took a history. She made the following observations of injuries:
A 1.5cm linear laceration was evident to the left of his forehead and a 0.7cm laceration at the junction between the ear lobe and face. No active bleeding on review. No step or irregularity felt on facial bones and on orbital bone in particular. lnfraorbital nerve function was intact. There was swelling to the right upper and lower lip with bruising. No lip laceration. All teeth were intact.[3]
[3]Statement of Dr Shalina Navaratnam dated 30 July 2019, depositions page 121.
11 Mr Wain remained at the Angliss Hospital for ten hours and was then transferred to Knox Private Hospital. He was not showing any signs of serious head injury.
12 In the evening of 3 June 2019 Mr Wain’s condition deteriorated and he was found to have a subdural haematoma or haematomas. He was operated on in the early hours of 4 June 2019. His condition continued to deteriorate and he was transferred to St Vincent’s Hospital. There was a further operation but Mr Wain did not recover consciousness and died on the 19 June 2019 after being taken off life support.
13 The police investigation continued, including an examination of items recovered at the scene, collection of CCTV footage and interview of the accused. The accused made no admissions relevant to being the man present at the house or having any recollection of being involved in any incident at the house. It is not suggested that any of this material gives rise to a post offence conduct direction giving rise to an inference or inferences as to any criminal conduct of the accused.
14 The thrust of the Hearsay Notice is to have admitted into evidence what Mr Wain said to his wife, Constables Chell and Berkley, Ambulance Officer Dorman-Allen, Dr Navarthamon on 2 June 2019 describing what had occurred earlier on that day.
15 As I have already observed, that the application is brought on the basis that the representations come within the exceptions set out in s 65(2)(b) and (c) of the Act. It is accepted that Mr Wain is unavailable. There are different criteria to be applied when either (b) or (c), which are expressed in the alternative, are being considered. I will deal first with s 65(2)(b). That sub-paragraph involves the Court being satisfied that the representations were made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that it is a fabrication.
16 All of the representations occur in circumstances where Mr Wain is providing a narrative of what had occurred to him at different times on the 2 June 2019. Ultimately, each of the representations will require separate consideration.
17 No issue arises as to the unavailability of Mr Wain or that the material sought to be admitted are representations within the meaning of the Act.
18 The expression ‘when or shortly after’ has been the subject of a large amount of judicial consideration. In general, what was said by the Full Federal Court by Miles, von Doussa and Weinberg JJ in Conway v The Queen[4] has been taken to be a fair summary of the meaning of the provision:[5]
123 The word “when” in s 65(2)(b) of the Act encompasses this notion of strict contemporaneity. The introduction of the expression “shortly after” is, however, a significant departure from traditional doctrine.
133 The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made “when” or “shortly after” the asserted fact occurred seems to be to ensure that the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative. The expression “shortly after” makes it clear that there need not be anything like the strict contemporaneity required at common law to render the evidence admissible as res gestae.
[4]Conway v The Queen (2000) 172 ALR 185.
[5]Ibid, [123] and [133].
19 What was said in Conway was based largely on what Sperling J had said in R v Mankotia:[6]
The phrase “shortly after” is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but – as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase “shortly after” must be the actual time that has elapsed and whether that fits the ordinary usage of the expression “shortly after” in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind. [7]
[6]R v Mankotia [1998] NSWSC 295.
[7]R v Mankotia [1998] NSWSC 295.
20 The prosecution submit that the representations in Table A were made as follows:
•Particular 1 – representation made at about 12.40pm on 2 June 2019;
•Particular 2 – representation made at about 12.40pm on 2 June 2019;
•Particular 3 – representation made at unknown time (at Angliss Hospital) on 2 June 2019;
•Particular 4 – representation made at unknown time (at Knox Hospital) on 2 June 2019;
•Particular 5 – representation made at about 1.09pm on 2 June 2019;
•Particular 6 – representation made at about 1.09pm on 2 June 2019;
•Particular 7 – representation made at about 1.09pm on 2 June 2019;
•Particular 8 – representation made at about 1.06pm on 2 June 2019;
•Particular 9 – representation made at about 1.06pm on 2 June 2019;
•Particular 10 – representation made at about 1.24pm on 2 June 2019;
•Particular 11 – representation made at about 2.30pm on 2 June 2019.
Submissions
21 Mr Desmond in his submissions linked the two propositions set out s 65(2)(b). That is, the representations cannot really be said to be ‘shortly after’ the asserted fact because they lack spontaneity, they are mere repetitions and many of them follow after Mr Wain had committed himself to a particular narrative. In turn, those matters lead to the suggestion that the representations should not be viewed as unlikely to be fabrications as they are necessarily unreliable.
22 Mr Desmond further submitted that Mr Wain was not under any obligation to tell the truth and that he was suffering from physical and emotional trauma. He was under some pressure from his wife to say what happened. In dealing with both the ambulance personnel and the police he might have believed they were under a duty to report the matter and would have been under pressure to not reveal he was the instigator. By the time he spoke to the ambulance officers, the police and the doctor he had committed himself to a particular narrative.
23 Mr Desmond placed much weight on the availability of the defence of self-defence which he submitted the prosecution would be unable to rebut. That submission seemed to me to have two themes. First, because Mr Wain was or might have been the aggressor, that he had a motive to provide an entirely exculpatory version and second, that Mr Wain had had the opportunity to assault the accused. Mr Desmond submitted that the question of self-defence arose because the accused could satisfy the evidential burden by the evidence that Mr Wain was angry when he confronted the accused at his front door and that at autopsy he was observed to have scabbed injuries on knuckles on each hand. The autopsy took place on 20 June 2019. Mrs Wain had not observed any such injuries on her husband’s hands prior to the incident. Those injuries were not observed at the Angliss Hospital. The accused has never given an account of what occurred. I am not satisfied that the matters pointed by Mr Desmond suggest ‘a reasonable possibility of the existence of facts, if they existed, that would establish self-defence’.[8] In addition, there is no way of fixing the sequence of events so that even if it could be established that Mr Wain did or was likely to have struck the accused, that he did so first. There is no evidence of the accused having sustained any injuries in the altercation.
[8]Section 322I(1) of the Crimes Act 1958.
24 Even if those matters did raise self-defence, the existence of an argument of self-defence would not be fatal to the admission of the hearsay evidence. The accused was a trespasser and Mr Wain would have been entitled to use reasonable force to remove him from the premises in any event.
25 Mr Desmond further submitted that Mr Wain’s injuries do not support his version of having been struck four times. It is true that he had three injuries to the head and face. I do not assume that each punch would necessarily leave an identifiable injury. I do not think there is anything in that submission. In fact, the description given by Mr Wain to his wife about the accused being above him does fit in with the place of his most clear injury.
26 The prosecution submitted that the all the representations satisfy the ‘when or shortly afterwards’ requirement. Representations 3 and 4 are made at an unidentified time but not later than 3 June 2019. It should be noted that representations 3 and 4 are the same representation repeated.
27 I have taken Mr Sonnet’s submissions and Mr Desmond’s submissions into account. Whether the representations are spontaneous or not is moot but they are certainly made in response to non-leading questions. I am satisfied that the representations are all made ‘when or shortly afterwards’ as that expression has been used in the authorities referred to above.
28 I next have to consider the question of whether the representations were made ‘in circumstances that make it unlikely that the representation is a fabrication’. The second requirement is linked to the first in that the time at which the representation will in part inform the question of reliability.
29 Although the representations fall to be considered separately they may be grouped by the person to whom the representation was made or by whom it was overheard. All of the representations were made before the seriousness of Mr Wain’s condition became known.
30 The first four representations were made to Mrs Wain. The first representation was made in response to a question from Mrs Wain who had noticed her husband’s head bleeding and asked ‘Did he hit you’ to which her husband replied ‘Yes’.[9] Taken as a single representation, subject s 137 of the Act, it is unchallengeable.
[9]Statement of Patricia Wain dated 29 July 2019, depositions page 50, [26] – [27].
31 The second representation(s) is/are more detailed. After Mrs Wain had completed the 000 call she recounts that her husband said:
40. I recall Alan saying the following to me: “I was in the lounge room watching the television. I heard somebody trying to open the front wooden door. The security door was open. I confronted the man. The man said to him can I come in. I said no, I don’t know you. The man said, I’ve been here before. I said no you haven’t. Alan told me the man went down the stairwell. The man walked to the caravan, opened the door and went inside it”.
41. Alan said, “I went down the steps after him and yelled out, what are you doing, get out of my van. The man came to the door of the caravan and said, ‘I stayed here last night’. I said, get out of the van”.
42. Alan said the man’s face changed. The man then hit him in the head four times. The man was standing on the steps of the caravan and Alan was on the ground below the step. This is what Alan told me. That’s basically it. That is what and how he described the assault by this male against him.[10]
[10]Statement of Patricia Wain dated 29 July 2019, Depositions page 50, [40] – [42].
32 It is a simple, uncomplicated narrative to his wife who is familiar with the surrounding circumstances and can observe his injury or injuries. I do not regard there being anything about the circumstances which would render the representations a fabrication.
33 Mrs Wain for her own part had made observations:
At around 1PM today, I was in the back room of our house and I heard Alan say “No this is not your house” then I heard Alan yelling, I didn’t hear what he was yelling but I came to the front door and Alan was in the front yard near the steps. I noticed he had a lot of blood corning out from the top of his head. I noticed a male closer to the caravan. I do not know this male. The male was as tall or even a little bit taller than Alan, he had an average build he wasn’t a big guy but he certainly wasn’t skinny either. He looked Australian. He had a baseball cap on with a white peak and black or dark blue hat. He took this off and had either bald or very shaved hair. He was wearing a dark jacket with a hood, he had a dark like a dark grey trackie pants, he just had white socks on, no shoes. Basically the guy was asking Alan where he was and Alan was telling him. Alan told him we were getting some help for him. He was definitely not quite right. He did ask Alan for a smoke. Beside from Alan bleeding from the head it all seemed calm otherwise. I called 000 and told them what was happening. Before police arrived I saw the male leave our driveway, he went left if your facing the street from our house. I waited with Alan until police arrived.[11]
[11]Statement of Patricia Wain dated 2 June 2019, Depositions page 45, [3].
34 And:
22. As I have said in my first statement in paragraph (3) I can recall being in the back part of my house. I can remember Alan being at the front door and saying to someone “no this not your house”.
23. I cannot say that I saw Alan open the front door to go outside. He must have opened the door when he was talking to the person. I did not hear the other person talking or say anything to him.
24. I walked to the front door which was now open. I opened the fly screen door and saw Alan and a male person outside in the front yard. Alan was closer to the bottom of the stairwell. The male was near the caravan.
25. I saw Alan with blood coming from his head.
26. I asked Alan “did he hit you”.
27. He replied “Yes”.
28. I said, “I’m ringing the police”.
29. The male person never said anything and was still standing near the caravan.
30. I cannot remember what time frame transpired between Alan being at the front door and me seeing him outside with blood coming from his head. I know it was not very long at all.
31. While I was on the mobile phone to police at the front door I saw the male walk towards Alan. I was yelling at Alan “come inside”. I wanted him to come inside because I really thought this male wold attack him again. I saw Alan come up about half way up the stairwell but he did not come inside.
32. The guy than sat on the bottom of the stairwell. Alan was about half up the stairwell.
33. The male asked Alan for a cigarette. Alan said he did not have any. I heard this conversation from inside the doorway. He asked where he was and what road was out the front. I heard Alan say that’s Boronia Road, he pointed to the right and said Stud Road is up there. Alan then pointed left and said Scoresby Road is down there.
34. I recall Alan say we are getting you some help. I can’t exactly recall when this was said. The guys said “police, I’m not sticking around or something to this effect”. He was not impressed and then left.
35. He went to the caravan first and came out with a jacket on. The jacket was a dark colour and it had a hood. He only had white socks on.
36. He walked slowly down the driveway, stopped at the end and turned to come back. He then continued to walk away from the house and turned left into Boronia Road.
37. In my first statement I have described this male. I cannot add anything further to this description I have provided only that I did tell the uniform member that the male was carrying a tanned coloured satchel over his shoulder.
38. After the male left our property Alan walked to the end of the driveway to make sure he was going. I recall Alan say when he walked back to me the male just put his hands up as he was walking away. He turned around and faced Alan as if to say “yep big deal”. This is what Alan perceived the hand motion to mean.
39. Alan did not come inside and he was near the front step. I was off the phone after speaking to the police - triple 000.[12]
[12]Statement of Patricia Wain dated 29 July 2019, Depositions page 50, [22] – [39].
35 It follows from her description that although her husband had been angry at the point of confrontation at the front door there was no apparent hostility between Mr Wain and the man. Given what had occurred the events were quite unremarkable. When Mr Wain was speaking to his wife he appears to have been simply telling her what happened. He would not actually have known how much of the events she had seen. It is reasonable to assume that because she had asked ‘Did he hit you?’ that she had not seen the alleged assault. At that time Mr Wain did not appear to have been seriously injured. Even though Mr Wain did not come back inside the house when requested by his wife to do so there was no further contact. Mr Wain stood on the steps and man sat on the steps. The man was told that the Wains were seeking assistance but he chose to leave and no attempt was made to restrain him. The man asked for directions and they were given. What Mrs Wain said reinforces my conclusion the these representations are reliable. Mr Wain was simply telling his wife what had happened.
36 The third and fourth representations are as follows:
52. I recall him saying to me at the Angliss and Knox Hospital “I can’t believe I let someone hit me in the face”. He was angry at himself that he let this happen to him.[13]
[13]Statement of Patricia Wain dated 29 July 2019, depositions page 50 [52].
37 I am satisfied that the representations are reliable.
38 Representations 5, 6 and 7 were made to Constable Emily Chell who had arrived at the Wains’ home at about 1.05pm together with Constable Jessica Berkley.
6. WAIN stated that a male not known to him had punched him to the head four times. The male then left on foot east down Boronia Road. (Representation 5)
8. He described the male to be approximately 30 years old, Caucasian, tall, average build, and bald, wearing grey tracksuit pants and a blue hoodie with a bag around his shoulder. (Representation 6)
10. WAIN followed me through the caravan to which he saw one Nike shoe on the middle of the bed and stated that the shoe did not belong to him. The shoe is described to be a grey Nike runner with fluorescent Nike logo.(Representation 7, in part)
11. WAIN then showed me to a vehicle owned by him in his front yard where an unknown person has tried to take off the front left side antenna and they had placed a two to three metre pole in the front bull bar. Further inspection showed that an unknown person has tried to gain access to the tool box located at the back of the vehicle. I then took a series of photos of this vehicle in situ.
12. Further observations found a matching shoe to the one in the caravan located next to the open passenger front door of another car belonging to WAIN parked in his front garden. WAIN stated the doors to this vehicle were closed the las time he observed it. I then took a series of photos of the second shoe’s location in situ.
13. In the vehicle where the second shoe was located I further found one cigarette in the middle console. A second cigarette butt was located at the bottom door step of WAIN’s address. WAIN’s wife, Pat WAIN stated that neither she nor WAIN smoke cigarettes. I collected both cigarettes and placed them in a Tamper Evidence Audit Bag and placed the bag in the back of the police van.[14]
[14]Statement of Const. Emily Chell dated 20 June 2019, depositions page 58.
39 Representations 5 and 6 are unremarkable and I find they were made in circumstances where it is unlikely that they would be a fabrication. Mr Desmond in his submissions concentrated on the representations relating to the four punches.
40 In relation to representation 7, Table A of the Hearsay Evidence Notice says:
7. Victim pointed out items that did not belong to him (left behind by the offender).
41 In Table B the substance of the evidence of the previous representation refers to [10] to [13] set out above. It is only [10] that meets the description of the representation. I suspect that the evidence is not contentious. It is unlikely to be a fabrication.
42 Representations 8 and 9 were made to Constable Jessica Berkley:
5. WAIN stated to me that he had confronted an unknown male who was in his driveway and the male had punched him in the head 4 times with a closed fist. WAIN provided me with a description of the male being male wearing no shoes, grey tracksuit pants and a blue hoodie, bald head, in his 30’s, of tall height and average build and had a bag around his shoulder. The male had already left the address in an easterly direction down Boronia road prior to our attendance. I updated the police communications centre with this information.[15]
[15]Statement of First Const. Jessica Berkley dated 26 June 2019, depositions page 61.
43 Representation 8 relates to stating what had happened and representation 9 provides a description of the man. The representations are straightforward and relatively uncomplicated. They are made to a police officer who had responded to the 000 call and who can see some of the injuries suffered. The circumstances are such that I regard it as unlikely that the representations are fabricated. I doubt that representation 9 is contentious.
44 Representation 10 was made to ambulance paramedic Jessica Dorman-Allen:
5. I then went to the lounge room, where I saw a male (our patient) and his partner, each sitting in recliner chairs. The male appeared to be in his 60’s, conscious with an obvious laceration to his forehead, a bruised lip and dried blood on his hands and face. The blood had clotted on his face and was no longer actively bleeding. The patient was able to convey the history of events to myself and my partner clearly and with full recoil. The patient conveyed that at approximately 12:00pm a male unknown to the patient came up to the front door and was asking to come inside the house. The patient told the male to leave his property. I am unable to recall if the patient stated if the male appeared drug to alcohol affected - but the patient did say that he thought the male was acting not quite right. The patient then saw the male walk back down his front steps and into his caravan in his front yard. The patient has then gone outside to ask the male of get off his property. The patient has then been hit in the face four times by the male’s fists. The patient went back inside the house to call the police. The patient denied losing consciousness or falling. The male offender has then left the scene, leaving his shoe/s behind. The partner of the patient on scene stated to the ambulance staff that during the patient’s discussion with the police, the patient had felt a few ‘whoosy’ feelings when walking around his property but had since eased when ambulance arrived. After police spoke with the patient, they have then requested for ambulance to come to the scene to check over patient.[16]
[16]Statement of Jessica Dorman-Allan dated 29 June 2019, depositions page 66.
45 The representation relied upon is that ‘The patient has then been hit in the face four times by the male’s fists’. The representation forms part of the history given to those who need for professional reasons to obtain a history. In the circumstances I regard it as unlikely that the representation is fabricated.
46 Representation 11 was made to Dr Shalina Navaratham who saw Mr Wain at the Angliss Hospital:
Mr Alan James Wain presented to the Angliss Emergency Department (ED) with his wife following an alleged assault by a man who was trying to get into his home. Mr Wain stated to me that he was punched to his face four times by a man outside his property. This allegedly occurred as he stepped outside to ask the man to leave his property. The man eventually left the property. Mr Wain reported no loss of consciousness and denied having sustained a fall following the punches.[17]
[17]Statement of Dr Shalina Navaratnam dated 30 July 2019, depositions page 121.
47 The representation is ‘Mr Wain stated to me that he was punched to the face four times by a man outside his property’. This was a commonplace situation where a doctor was taking a history. In the circumstances, I regard it as unlikely that the representation is fabricated.
48 In discussion the question arose as to whether repetition of a version made it more likely that it was true. As a matter of logic that is not so. However, when the truthfulness or reliability of a version is being tested one of the indicia which might be used is consistency of the version advanced. In general, Mr Wain did give a consistent version of events.
49 In so far as it is put that Mr Wain was the aggressor and would therefore have a motive to advance a false version of events, I am satisfied that there is insufficient evidence to support that proposition. My impression of the evidence as a whole including what was said in the 000 call is that Wains were not hostile to the man, notwithstanding the fact that he had struck Mr Wain. That is part of the circumstances when considering each representation.
50 It follows that pursuant to s 65(2)(b) I would admit the evidence.
51 The prosecution also seek to rely upon s 65(2)(c):
(c) was made in circumstances that make it highly probable that the representation is reliable;
52 It is not strictly necessary for me rule on that application. If I am wrong about the representations coming within s 65(2)(b),[18] I am satisfied that when considering each representation and its circumstances, that largely for the reasons set out above I would regard it as highly probable that each representation is reliable. I do not regard the matters forcefully put by Mr Desmond as sufficient to cause me to take another view. It follows that I would also admit the evidence of the representations pursuant to s 65(2)(c).
[18]Section 65(2)(b) of the Evidence Act.
53 That is not the end of the matter. Mr Desmond further submits that I should exclude the evidence pursuant to s 137 of the Act. In a criminal proceeding, 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 accused.
54 Mr Desmond submitted that in particular, there would be unfair prejudice to the accused because the evidence would be used in an attempt to rebut self-defence. It may be that the prosecution would submit that there is nothing in what was said by Mr Wain which would give rise to self-defence and that would be true. As I have already set out I do not accept that the material is sufficient to give rise to self-defence. Much reliance is placed on the injuries to Mr Wain’s knuckles first seen at autopsy on 20 June 2019 (the events having occurred on 2 June 2019). There is no evidence as to how those injuries were sustained. It is merely one possibility that they were injured in the dispute with the accused and even that is a matter of supposition. There is no evidence to inform the question of who was the aggressor, the mere fact that Mr Wain was angry about finding a trespasser at his house does not mean he was responsible for starting any altercation. There is no logical imperative which gives to the proposition that a man was angry, was later seen to have injured hands and must therefore have attacked the man who assaulted him. The balance of the evidence reveals a somewhat surprising lack of animosity to the accused in any event. The accused has never claimed that he was acting in self-defence.
55 The exceptions set out in s 65 take into account the difficulties which arise when considering hearsay evidence. Those matters were usefully explained by Kaye JA:
57. Of course, if any of the representations were admitted in evidence, the accused would suffer the disadvantage of not being able to cross-examine Blewitt, and of the jury not having the opportunity to observe the character and the demeanour of Blewitt, particularly while under cross-examination. However, as counsel correctly recognised, those disadvantages are an incident of the admission of any hearsay evidence under the Act. They provide a sound reason for caution in determining whether the evidence should be admitted. However, experience has demonstrated that an appropriate judicial direction, concerning those aspects of hearsay evidence, is ordinarily sufficient to offset the disadvantage otherwise accruing to the defence arising from the admission of such hearsay evidence.[19]
[19]DPP v Aisling (No 2) [2017] VSC 38, [57]
56 I am satisfied that there is little or no risk of the misuse of the evidence so as to give rise to unfair prejudice.
57 I am satisfied that that the probative value of Mr Wain’s evidence is not outweighed by the danger of unfair prejudice to the accused.
58 I will not exclude the evidence pursuant to s 137.
59 Representations 1 to 11 will be admitted in evidence.
Annexure One
TABLE A – Particulars of the Previous Representation
| REPRESENTATION | DATE | TIME | PLACE | CIRCUMSTANCES | NAME OF WITNESS |
| 1. Offender hit him. | 2/6/2019 | About 12.40pm | Victim’s address | Alan Wain stated to Patricia Wain that the male person had hit him. | Patricia Wain |
| 2. Offender hit him in the head 4 times. | As above | As above | As above | Alan Wain stated to Patricia Wain that the male person had hit him in the head 4 times. | Patricia Wain |
| 3. Offender hit him in the face. | 2/6/2019 | Unknown | Angliss Hospital | Alan Wain stated to Patricia Wain that the male person had hit him in the face. | Patricia Wain |
| 4. Offender hit him in the face. | 2/6/2019 | Unknown | Knox Hospital | Alan Wain stated to Patricia Wain that the male person had hit him in the face. | Patricia Wain |
| 5. Offender punched him to the head 4 times | 2/6/2019 | About 1.09pm | Victim’s address | Alan Wain stated to C Emily Chell that the offender had punched him to the head 4 times. | C Emily Chell |
| 6. Description of offender | 2/6/2019 | About 1.09pm | Victim’s address | Alan Wain provided a description of the offender to C Emily Chell | C Emily Chell |
| 7. Victim pointed out items that did not belong to him (left behind by offender) | 2/6/2019 | About 1.09pm | Victim’s address | Alan Wain pointed out items that did not belong to him left behind by the offender to C Emily Chell | C Emily Chell |
| 8. Offender punched him to the head 4 times | 2/6/2019 | About 1.06pm | Victim’s address | Alan Wain stated to C Jessica Berkley that the offender had punched him in the head 4 times with a closed fist. | C Jessica Berkley |
| 9. Description of offender | 2/6/2019 | About 1.06pm | Victim’s address | Alan Wain provided a description of the offender to C Jessica Berkley | C Jessica Berkley |
| 10. Offender hit him in the face 4 times by fists | 2/6/2019 | About 1.24pm | Victim’s address | Alan Wain stated to Jessica Dorman-Allen that the offender had punched him in the face 4 times with his fists. | Jessica Dorman-Allen |
| 11. Offender punched him in the face 4 times | 2/6/2019 | About 2.30pm | Angliss Hospital | Alan Wain stated to Dr Shalina Navaratnam that he had been punched in the face 4 times by the offender. | Dr Shalina Navaratnam |
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