State of Tasmania v Allie and Maple
[2025] TASSC 6
•20 February 2025
[2025] TASSC 6
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | State of Tasmania v Allie and Maple [2025] TASSC 6 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| ALLIE, Mitchell Andrew Noel | |
| MAPLE, Samuel David William | |
| FILE NO: | 190/2021 |
| DELIVERED ON: | 20 February 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 14, 16, 18 October 2024, |
| 21 October 2024 (Ruling) | |
| JUDGMENT OF: | Wood J |
| CATCHWORDS: |
Criminal Law – Evidence – Hearsay – Particular matters – Maker of statement not available – Witness died in the months before trial – Allegations relate to two incidents 19 March 2021 and 21 March 2021 – Representations made on the day of the incidents and a statutory declaration made on the day of the second incident – Generally representations were made "shortly after" the incidents but representations made on 21 March about events on 19 March not admissible.
Aust Dig Criminal Law [2802]
Evidence – Admissibility – Exclusions: prejudicial evidence – Inability of defence counsel to cross-examine the complainant as maker of representations – Police questioning of accused during interviews afforded limited opportunity for accused to refute the complainant's account – Forensic pressure for accused to give evidence at trial to contradict representations – Risk of impermissible reasoning - Effect of directions to jury.
Aust Dig Evidence [1168]
Criminal Code Act 1924 (Tas), s 361A.
Evidence Act 2001 (Tas), ss 64(2), 65(2)(b), 65(2)(c), 137, 165.
Evidence Regulations 2002 (Tas), r (4).
Sio v The Queen (2016) 259 CLR 47; Gesler v State of Tasmania [2023] TASCCA 10; R v Mankotia [1998] NSWCA 295; R v Polkinghorne (1999) 108 A Crim R 189; Conway v The Queen (2000) 98 FCR 204; R v Ambrosoli (2002) 55 NSWLR 603; Harris v The Queen [2005] NSWCCA 432; Williams v The Queen [2000] FCA 1868; Moore v The King [2023] VSCA 236; R v BD (1997) 94 A Crim R 131; Papakosmas v The Queen (1999) 196 CLR 297.
REPRESENTATION:
Counsel:
Prosecution: M Figg, G James First Accused: F Cangelosi
Solicitors:
Prosecution: Director of Public Prosecutions First Accused: Cangelosi Logan
Counsel:
Prosecution: M Figg, G James Second Accused: K Baumeler
Solicitors:
Prosecution: Director of Public Prosecutions Second Accused: K Baumeler
| Judgment Number: | [2025] TASSC 6 |
| Number of paragraphs: | 113 |
Serial No 6/2025 File No 190/2021
STATE OF TASMANIA v SAMUEL DAVID WILLIAM MAPLE STATE OF TASMANIA v MITCHELL ANDREW NOEL ALLIE
| REASONS FOR JUDGMENT | WOOD J 20 February 2025 |
1 A preliminary issue concerning an application by the State to adduce hearsay evidence was heard in advance of the trial pursuant to s 361A of the Criminal Code Act 1924. An oral ruling was delivered on 21 October 2024 with reasons to be published at a later date, and the trial commenced the following day. The ruling was to allow some but not all of the evidence to be admitted pursuant to s 65 of the Evidence Act 2001 and is set out below at [104]–[113]. These are my reasons.
2 The accused, Mitchell Andrew Noel Allie and Samuel David William Maple, are jointly charged with crimes allegedly committed on 21 March 2021, being aggravated burglary (having offensive weapon or instrument or explosive substance), committing an unlawful act intended to cause bodily harm, two counts of stealing, and one count of unlawfully setting fire to property. Mr Allie is charged on the same indictment with crimes of aggravated burglary and stealing on 19 March 2021.
3 The State seeks to have hearsay evidence admitted on the accused's trial. The representations were made by the complainant, Anthony Percy, who cannot be called as a witness at the trial as he died earlier this year.
Summary of the Crown case against the accused
4 A summary of the Crown case against the accused, drawn from the written submissions of Crown counsel, is as follows. On 19 March 2021, the accused Mitchell Allie went to a residence at Schofield Drive in Sorell, which was the home of the complainant, Anthony Percy. He entered the house as a trespasser and stole car keys to a Toyota Rav 4, the property of Renee Wallace; a Makita grinder; two other sets of car keys that belonged to Mr Percy; and three cannabis plants that also belonged to Mr Percy.
5 Mr Percy was home when this occurred but only saw the silhouette of the burglar. He telephoned Renee Wallace and spoke to her about what had happened. He also spoke to his sons, Jake and Brett Percy.
6 On 21 March 2021 at around 1:00 pm, Mr Allie returned to the property with the accused Samuel Maple, armed with a knife and a metal baton. The Crown case is that they went to the property with a shared intention to steal items and use violence to facilitate that stealing if necessary.
7 Mr Percy answered a knock at the front door and saw two males who were unknown to him. After a brief verbal exchange, the accused Mr Allie struck Mr Percy with a metal baton to his body a few times. The accused Mr Maple then punched Mr Percy and Mr Percy fell over.
8 The two accused continued to assault Mr Percy and, as they did, cash fell out of his pockets, which they took. They stole between $5,000 and $7,000.
9 One of the accused stabbed Mr Percy in the back of the neck with a knife that was approximately 30 cm long. Mr Percy described it as a hunting knife. The accused then drove away in the Toyota Rav 4.
10 Mr Percy was taken to hospital in an ambulance. He had a stab wound that was 3 cm wide to the right side of his neck; multiple long dark bruises across his back, buttocks, and left forearm; two
2 No 6/2025
separate open wounds on his scalp, both 5 cm long; and a large haematoma and swelling to the right
ankle.11 The accused drove to Bakers Road, Penna, and set the Toyota on fire, destroying it.
12 An associate, Craig Rusher, gave the accused a lift from Bakers Road. Mr Maple went to the home of an associate, Braedon Males, and later to the home of another associate, Tobias Oddie-Jones. Mr Maple disposed of a Woolworths bag in Mr Oddie-Jones's backyard, which was captured on CCTV footage. The bag was later located by police and contained the weapons, bloodstained clothing, and other items such as cable ties that had been fashioned into a pair of handcuffs.
13 The baton and knife from the Woolworths bag were forensically tested, along with other items. The weapons had DNA on them which matched the DNA profiles of both accused and the complainant. A hooded top and a shoe located inside the Woolworths bag had DNA on them which matched the profiles of Mr Percy and the accused, Mr Maple. The Woolworths bag had human blood with a DNA profile matching that of Mr Percy on it.
14 Mr Rusher's car was forensically tested. A bundle of $50 notes was located inside the vehicle with human blood on it and a DNA profile matching that of Mr Percy.
15 The accused Mr Maple was arrested on 23 March 2021. He was interviewed and told several lies that the Crown will rely on as Edwards lies. He later admitted being at Mr Percy's house. He said he was there to buy drugs and Mr Percy attacked him.
16 The accused Mr Allie was interviewed on 23 March 2021. He admitted going to the house on 19 March and that he "may have taken dope". He also admitted going to the house on 21 March with Mr Maple to buy drugs and "things escalated". He admitted that he "might have" committed an assault, but Mr Percy pushed "someone first" to start off with. He admitted to driving the Toyota away from the house. He denied burning out the car but said "it wasn't even meant to be burnt out at that point, it was meant to be burnt out that night".
17 In calls recorded on the Arunta system by the Tasmanian Prison Service, the accused Mr Allie made further admissions and contradicted this version. He said he had 'bashed the cunt and took his car' and that he got "$3,800 for the job". He denied it was planned but said he "walked straight up and started pumping the cunt".
18 He also said that he "hit the cunt with a bat numerous times", and that he "felt like a kid in a lolly shop when the money fell out of his pocket".
19 He admitted to "burning out a stolen car" and made admissions to "taking dope plants" from Mr Percy's house in the days before 21 March and having Mr Percy's car keys for a couple of days "when he burgled" him.
20 The accused Mr Maple also spoke about the incident on the Arunta system but maintained that Mr Percy attacked Mr Allie, so he broke up the fight. He said he was guilty of being in a stolen car.
The representations
21 The representations sought to be admitted by the State were made by Mr Percy to his sons, Brett Percy and Jack Percy and Renee Wallace, a friend and the owner of the Toyota, on both 19 and 21 March 2021 and, also to a police officer, Detective Constable Craig Stockdale in a statutory declaration dated 21 March 2021.
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22 The State has filed a Notice of Hearsay pursuant to s 64(2) of the Evidence Act 2001 and reg (4) of the Evidence Regulations 2002 which details the hearsay statements sought to be adduced. The details of the hearsay statements taken from the Notice are set out below. The information about the timing of Mr Percy's representations to Ms Wallace and Jake and Brett Percy is taken from their statutory declarations.
Representations made on 19 March 2021
23 The hearsay representations made by Mr Percy on 19 March 2021 are as follows:
| Jake Percy |
The complainant telephoned his son Jake Percy at approximately 9:38 am. He told his son:
"a (i) Someone had been at his home that morning and gone through the house, shed and back yard. (ii)
He woke to a male looking into his bedroom door. He thought it was Jake and said hello but the person didn't answer back so he got dressed and went outside and the male was gone."
Renee Wallace
The complainant telephoned Renee Wallace "about midday" and said:
"a (i) His house had been broken into and the keys to the Rav had been stolen."
Brett Percy
The complainant telephoned his son, Brett Percy, sometime after 4:00 pm and said:
"a (i) During the day time on Friday around 9.15 am to 9.30 am a couple of guys came into the house at 39 Schofield Drive, Sorell. (ii)
They stuck their head in the bedroom where he was and he thought it was Jake and didn't think much of it.
(iii)
When he got up realised that three sets of car keys had been taken along with a marijuana plant and an angle grinder from the shed."
Representations made on 21 March 2021
24 The representations made by Mr Percy on 21 March 2021 are as follows:
| Brett Percy |
Brett Percy was at the address at 39 Schofield Drive with his father and was in the shed from around midday. He received a phone call from his father at 1:53 pm to tell him to come up to the house. He met his father at the front door and saw his father "covered in blood". His father told him:
"b (i) He heard a knock at the door and answered it. There was two guys, one big guy and one smaller skinny guy there. (ii)
The big guy had a hunting style knife and was trying to punch and stab him with the knife.
(iii) The smaller guy moved away from the area. 4 No 6/2025
(iv) One of them said about the green Ford ute not working, and he replied that they had the keys so he didn't know why.
(v) The smaller of the guys came back around and struck him over the head with a pole.
(vi) The wound on the back of his neck was from a knife wound."
Jake Percy
Jake Percy received a phone call from his brother Brett at 2:07 pm and he travelled from Clarendon Vale to his father's address. He saw his father sitting at the dining table with a towel around his neck. His father said:
"b (i) There was two males, the bigger male walked through the front door and accused him of sleeping with his ex-Mrs Chantelle. (ii) He did not know who that was. (iii)
The male then said 'why won't the ute start?' and he said something similar to 'you have the keys'.
(iv)
While this was happening, a smaller male was trying to start the vehicles.
(v)
The smaller male had ginger hair but he had never seen them before. The heavier bloke would have been around 100kg."
Renee Wallace
The complainant telephoned her and told her:
"b (i) He had been attacked and someone had stolen the Rav."
Statutory declaration made on 21 March
25 Detective Constable Craig Stockdale took a statutory declaration from Mr Percy when he was in hospital. Before taking the declaration, Detective Stockdale warned Mr Percy that it was an offence to make a false statutory declaration and that he could be charged for making one. The police officer began to take the statutory declaration with very limited knowledge of the allegations about the incident. Although Mr Percy was injured and in hospital, the medical evidence available to the State was that the defendant was alert and clear in his explanation of events.
26 During the course of the hearing of the application, there was some movement in the State's position regarding the aspects of the statutory declaration sought to be led. The final position of the State is that it seeks to admit all of the representations set out below except for those in paragraph (w), relating to the firearm. The State's position is that the representations in (w) are not relevant, while defence counsel seek to have those representations admitted as bearing on Mr Percy's credibility.
27 In relation to the events on 19 March the representations in the statutory declaration sought to be adduced are as follows:
"(a)
I live at 39 Schofield Drive, Sorell, and have lived there for about 28 years. I live by myself, however Rebecca and Corey Woods live in the unit below my house.
(b)
In the past few days, I think it was Friday, I was at home by myself at about 9 am in the morning. I was in my bed and I heard a noise, so I looked out the
5 No 6/2025
bedroom door and saw a silhouette of a person looking into the bedroom. I presumed that it was one of my sons at my house and said what are you doing? But no one answered me. So I got out of bed and went into my kitchen. It was at this time that I saw all my cupboard doors and draws [sic] were open in the kitchen and laundry area.
(c) I also noticed that the keys to three of the vehicles had been removed from the kitchen bench. These keys included: a green Ford XR6 utility; a red Toyota Rav 4; a green Hyundai sedan. (d) A [sic] rang Renee Wallis who owns the Rav 4 and she said she would bring a spare key over. I also noticed that my garage had been entered as well, because I had a 9 inch Makita grinder missing and doors and cupboards were open. I only saw a silhouette of one person the first time I was broken into. (e) There was also three cannabis plants stolen from outside in the garden. (f) I did not hear a car, however Jake took some screen shots of the tyre marks and shoeprints left in the driveway. (g) I did not report it because there were three cannabis plants at the address and I didn't want the police involved."
28 In relation to the events on 21 March the representations in the statutory declaration sought to be adduced are as follows:
"(h)
At approximately 11:00 am to 12:00 pm on today's date the 21st of March 2021, I was at home alone at 39 Schofield Drive, Sorell. It was at this time, that I heard a knock on the front door so I got up to answer it.
(i)
When I opened the front door I saw two males standing there who I did not know. I would describe the first male as about 25 to 35 years old, fair skin, fair haired with longish hair to his collar. He was wearing an army coloured green jacket and spoke with an Australian accent and was smaller than the second male.
(j)
The second male was a bit bigger than 6 foot with a short black beard and short black hair. His skin was darker than the first male and I would describe it as olive. The male was of solid build and was wearing a red top with black wriggly lines. He was about 30 to 40 years old. I do not believe they were wearing gloves.
(k)
The bigger male asked if I had seen a girl (although I can't remember the name), which I said I didn't know her. The bigger male said that it was his daughter and that he knew she had been coming up here. He described the girl as having brown hair.
(l)
I told this bloke that I didn't know her and had no idea what he was talking about. Just as I was saying that, the paler skinned male hit me with a metal pole somewhere on my body a few times. I would describe the metal pole as being black in colour and similar to a police baton.
(m)
The bigger male has punched me and at some stage I have fallen over and I kicked him in the groin. All this happened in the doorstep and just in the
6 No 6/2025
entry to the door. When the males were assaulting me, I had about $23,000 in my pockets. They were split with about $14,000 to $15000 in $100 notes which had an elastic band around it. I also had about $7000 to $8000 in $50 notes in my pockets.
(n) While I was on the ground, one of the males has stabbed me using a hunting knife about 30 cm in length and it had white around the handle. I was stabbed in the back of the neck, but I don't know which male did it as they were behind me when I was stabbed. (o) When I was on the ground, the bundle of the $50 notes fell out of my pockets and both males took the money. I believe that the males must have dropped some of the money because my daughter in law, Courtney found a heap of $50 notes near where the Rav 4 was parked. (p) I still had about $15,000 in my pockets that did not fall out, so I estimate that the offenders have stolen about $5000 to $7000 from me. I handed the money that I still had on me to Courtney when she arrived. (q) I had this money because I am going to Western Australia shortly and I wanted to pick up a Winnebago. I got this $23,000 from the sale of a house and when my mother passed away. I have no reason for why $23,000 was being held in my pocket. (r) Bec gave me the money a few days ago because she had sold a house in Nash Street on the 11th of this month. (s) After I was assaulted, we have ended up outside and I grabbed the block buster which was near the green ute on the path to the house. The fair skinned male was over towards the red Rav 4 and had started the car, I started to approach the males with a block buster in my hand which I found outside. (t) The fair skinned male also asked me at some stage why the green Ford ute didn't start and I said because I don't have the keys and the fair skinned male said 'no, that's because I do'. (u) It was at this time that the two offenders left in my Toyota Rav 4, but not before saying 'don't call the cops or I will kill you', or words similar. (v) When these blokes left, Ben from across the road came down and said he saw my car leaving and also said that he took some footage. I think one of the neighbours called the police at around about the same time.
(w) I would normally have a double barrelled over and under 12 gauge shot gun stored at my house. I moved the gun a couple of years ago because someone had broken in and the lock was compromised. I moved the firearm to Dean Jones house in Valley Field Road. I would rather not tell you who I think tried to steal the firearm. (x) I have not had any issues with anyone and I do not know the people who did this to me.
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(y)
Also at my house I have a black garbage bag which contained the leaf matter from a cannabis plant. I have had the cannabis matter for only a few days and I was going to use it to make cannabis cookies.
(z)
I reckon I was hit about 10-15 times all over my bod [sic], including on my back, my head and my legs. I have a large bruise on my left forearm, a large gash on the back of my neck and bruises everywhere."
The application to adduce hearsay evidence
29 The Crown seeks to have the representations admitted pursuant to s 65 of the Evidence Act. This section provides for an exception to the exclusion of hearsay evidence if the person who made the representation is not available to give evidence.
| 30 | Section 65 relevantly provides: "Section 65 | |||
|
(a) … (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;
…"
31 It is plain that Mr Percy is "not available" to give evidence. By virtue of s 3B(1)(a) of the Evidence Act, Mr Percy is taken to be not available to give evidence about an asserted fact. There is no issue that evidence sought to be adduced would be given by persons who "saw, heard or otherwise perceived the representation(s) being made".
32 The question is whether ss 65(b) or (c) is satisfied. It is argued for the accused that the evidence is not admissible under either of the sub-sections and, even if they are admissible pursuant to s 65, the representations should be excluded under s 137 of the Evidence Act.
The approach to admissibility of representations under s 65
33 The effect of s 65 is that in certain situations, as specified, first-hand hearsay is not excluded by the hearsay rule in criminal proceedings where the person who made the representation is not available to give evidence about an asserted fact. The meaning of "an asserted fact" is dealt with in s 59 of the Act.
34 In Sio v the Queen [2016] HCA 32, 259 CLR 47, the High Court noted at [57] that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case.
35 The High Court identified the correct process to be undertaken in applying s 65(2):
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"It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65."
36 Therefore, in relation to whether the conditions in s 65(2)(b) or (c) are satisfied in this case, it is necessary to consider the representations individually, and the circumstances in which each was made.
37 Crown counsel went through the process of referring to each of the representations sought to be proved and identifying the relevance of each to a fact, or facts, in issue in the proceeding. There were no submissions on behalf of the accused that any representations were not relevant to a fact, or facts, in issue in the proceeding. Clearly, the hearsay representations pertain to relevant facts.
38 It is contended for the accused that the representations were not made "shortly after" the events in question. Further, it is submitted on their behalf that it has not been shown that the representations were made "in circumstances that make it unlikely that the representation is a fabrication". In relation to s 65(2)( c), it is contended the higher threshold test is not met, namely that the representations were not made in "circumstances that make it highly probable that the representation is reliable."
Section 65(2)(b)
39 Sub-section (2)(b) requires that the representation was made "when or shortly after the asserted fact occurred". It is necessary to consider the meaning of the phrase, "shortly after".
"shortly after"
40 The words "shortly after" connote a temporal connection between the occurrence of the asserted fact and the making of the representation. The meaning of the words is governed by the context of the words in the statute in which they appear. The temporal connection is particularly evident having regard to the dual limbs of the section which requires that the representation be made "when" or "shortly after" the asserted facts occurred.
41 In Gesler v State of Tasmania [2023] TASCCA 10 at [30], Estcourt J quoted Crown counsel's written submissions with approval as correctly setting out the relevant principles regarding the meaning of the phrase "shortly after". The written submissions stated:
"36
The phrase 'shortly after' imports a degree of flexibility (R v Mankotia [1998] NSWSC 295; R v Polkinghorne (1999) 108 A Crim R 189 at [39]–[40] per Levine J). What 'shortly after' means will depend upon the particular circumstances of the case.
37
It is submitted that in determining what constitutes 'shortly after', the temporal connection is only one consideration. Indeed, the broader scheme of s65 contemplates representations being admissible without a direct temporal connection at all; section 65(2)(c) includes no temporal requirement provided the representation was made in circumstances that make it highly probable that the representation is reliable.
38
There is authority to suggest that the focus of the section is how long the memory of the events is likely to remain clear in the mind (Mankotia (supra); Polkinghorne (supra); R v Toki (No 3) (2000) 116 A Crim R 536; Conway (supra); Harris v The Queen (2005) 158 A Crim R 454). In Harris at [38]- [39] it was stated that in some circumstances, five days after could be regarded as 'shortly after'.
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39 Other cases suggest the focus of the section is to avoid the admission of evidence that has been concocted, and the shorter the temporal connection, the less chance the representor has to reflect on matters and fabricate an account (Williams v R (2000) 119 A Crim R 490 at [47]). In Williams, it was held that the preferable approach is that the statements must be made 'under the proximate pressure of the occurrence of the asserted fact' (at 502) in order to avoid the risk of concoction or fabrication.
40 However, this approach was rejected by Miles AJ in R v Kuzmanovic [2005] NSWSC 771 at [16], who stated the correct approach was to 'look at the subject matter of the event and how long the event is likely to have remained clear in the mind of the representor.'
41 The respondent contends that the approach taken in Harris is correct, and that the focus of the section is how long the event is likely to remain clear in the mind of the representor and the nature of the event. There is nothing within the words of the section that suggest that a person must be under the stress of the event when a representation in made in order for it to be admissible (cf Ratten v The Queen [1972] AC 378 at 391). This was a deliberate decision of the legislature. The length of time between the event in question and the making of the representation will be a relevant factor, however whether a representation was made 'shortly after' the occurrence of the asserted facts will also depend on the facts of the case and the significance of the events in question (Mankotia, supra). It is submitted that this approach is not contrary to the 'proximate pressure' test outlined in Williams (supra), as depending on the nature of the event in question, a person may still be under the 'pressure' of the event some days afterwards."
42 In Gesler, a police interview made five days after the events was considered to have been made "shortly after". A factor regarded in that case as significant was that the representations were made to police against his own interests.
43 The submissions approved in Gesler were essentially the same as the State's submissions in this application. Again, it was submitted that the approach taken in Harris is correct, and the focus of the section is how long the event is likely to remain clear in the mind of the representor and the nature of the event. A submission was made that even if the Williams approach was adopted, in any event, the majority of the representations sought to be adduced were made "under the proximate pressure of the occurrence of the asserted fact".
44 The submissions highlight a tension in the authorities and treat the cases of Williams and
Harris as providing different approaches.
45 In Williams, the Full Court of the Federal Court considered an appeal involving the admissibility of representations made in a police interview five days after the occurrence of an armed robbery. Consideration was given to a case of the Full Court of the Federal Court in Conway v The Queen [2000] 98 FCR 204, in which the Court at [123]–[134] considered the phrase. The judgment quoted from Mankotia, per Sperling J, where observations which were cited with approval by Levine J in Polkinghorne.
46 The Full Court also gave consideration to the second condition which must be met before evidence may be led which is that the representation must have been made in circumstances that "make it unlikely that it is a fabrication." In conclusion, at [47] it was said that it is principally a concern to exclude concocted evidence which informs the meaning of the phrase "shortly after". Approval was given to Sperling J in Mankotia at [10] in which it was said that the subsection ought not be regarded as simply importing a test of reliability at large and it is "the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial."
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47 At [48], the judgment in Williams noted that it would be a mistake to over-emphasise such matters as whether the events in question were "fresh" in the memory of the person making the statement. The court noted that the provision is intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made when spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact. In Williams, the statements made after a lapse of five days, were considered to fall outside s 65(2)(b).
48 In R v Ambrosoli [2002] 55 NSWLR 603, 133 A Crim R 461 it was determined that the circumstances upon which s 65(2)2(b) and (c) focussed were the circumstances of the making of the previous representation. Mason P with whom Hulme and Simpson JJ agreed said at [34]:
"It would therefore appear that Mankotia, Conway and Williams are at one in:
• focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or [in the case of subsection (c)] highly probable that the representation was reliable; and • excluding evidence tending only to prove the asserted fact."
49 At [35] Mason P stated this was the correct approach to s 65(2).
50 In the later case of Harris, the judgment of Studdert J with whom Grove and Whealy JJ agreed referred to the cases of Conway, Mankotia, and Williams. There was also reference to the judgment of Mason P in Ambrosoli and the matters where the cases were at one. Studdert J considered the circumstances of the making of the representation and determined the circumstances made it unlikely that the representations were fabricated. It was determined that it was open to regard a lapse of 24 hours as "shortly after". Illustrating that each case has to be considered having regard to its own particular circumstances, an example was given of a person recovering consciousness five days after an event which may well be considered to be "shortly after".
51 Having considered the discussion of principle in these cases, it can be seen that the cases of Williams and Harris do not represent divergent approaches to the application of s 65(2)(b). The common approach is to focus upon the circumstances of the making of the representation to determine whether it is unlikely that the representation was a fabrication.
52 The task of determining this application is, in my view, governed by established principles and a focus on the circumstances of the making of the representation. It is unhelpful to look for guidance in the conclusions reached about the number of hours or days held to have fallen within or outside the provision. Each case will turn on its own circumstances.
"circumstances"
53 Section 65(2)(b) and (c) require courts to have regard to the "circumstances" in which the relevant representation was made. The focus is the reliability of the representation, not (directly) the reliability of the asserted fact: Mason P in Ambrosoli at [28]. The enquiry is not concerned with independent evidence that tends only to prove the asserted fact. The enquiry is concerned with the objective circumstances in which it was made, not the apparent truthfulness of the person making it: Sio at [70].
54 A question which arises is whether, in considering the circumstances in which a representation was made, the court may consider representations made by the person on a different occasion, potentially to a different person. In Sio, the judgment of the court referred with approval to the judgment of Mason P, with whom Hulme and Simpson JJ agreed, in Ambrosoli at [29]:
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"… evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby."
55 The court in Sio at [71] went on to consider the matter of other representations:
"When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. 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 which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2)(d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character."
56 Although the High Court was concerned with s 65(2)(d)(ii), the remarks are equally apt for ss 65(2)(b) and 65(2)(c): Moore v The King [2023] VSCA 236 at [49].
57 It can be seen that the "circumstances" to be considered in the application of s 65(2)(b) can include previous, or subsequent, statements or conduct of the person who made the representation, to the extent to which they reflect on the reliability of the circumstances of the making of the particular hearsay representations.
Admissibility of representations regarding 19 March
58 The representations made by Mr Percy on 19 March 2021 to his sons and Renee Wallace were made on the same day. The representations to Jake Percy and Renee Wallace were made within approximately three hours of the incident and the representations to Brett Percy were made 7 hours or more after the incident.
59 Given the circumstances, the representations were all made shortly after the events. The circumstances of these representations would suggest they were reliable. The representation to Renee Wallace was a brief narrative of what had happened to her vehicle. It is noted he referred to one set of keys while he referred to three sets of keys when speaking with Brett Percy. That inconsistency does not suggest fabrication because in speaking with Renee Wallace, he was merely recounting what was of significance to Ms Wallace as the owner of one of the vehicles. It can be seen that the complainant was reluctant to report the matter to the police, and at that time was intending to not report the matter, but I do not regard that as a circumstance suggesting that the representations to his sons and Renee Wallace were a fabrication.
60 In considering the representations made to Jake, a later representation made to Brett Percy is different in that it suggests there was more than one intruder. However, that does not suggest that the earlier representation that it was one person was a fabrication.
61 Mr Percy told his son Brett that one cannabis plant was stolen. There is a difference in the account to police two days later when giving his statutory declaration, in that he spoke of three cannabis plants. This difference suggests a sanitised version was given to his son in terms of the number of plants. It is possible that there is another explanation for the inconsistency, but the likelihood is that he fabricated the reference to one plant.
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62 One of the circumstances relied upon by the defence is that Mr Percy had been in possession of cannabis plants before they were stolen and, two days later, he had cannabis product to be used, on Mr Anthony Percy's account, for making cookies. It was pointed out that he may have been affected by the cannabis product on either 19 or 21 March with implications for the reliability of his accounts. That, however, would be suggestive of mistake, not fabrication. I cannot see that that circumstance would give rise to any reason to fabricate his representations regarding the events of 19 March when speaking with his sons.
63 In relation to the representations made by Mr Percy in the statutory declaration given to police on 21 March 2021 about the events of 19 March 2021, there are features of the circumstances which bear on the reliability of the representations and the prospect of fabrication. There is the solemnity involved in making of a statutory declaration and the warning about not giving false information. This is a circumstance weighing against fabrication, however, the making of false statutory declarations is not unheard of.
64 The representations were made two days after the events. The explanation for the delay was a reluctance to speak to police because of his possession of cannabis plants. There was time and opportunity to come up with a fabricated version. It can be assumed that by the time of the incident on 21 March, his attention would have been taken up with the events of that date and the aftermath, and not with the events of 19 March. However, there was over 48 hours between the incident on 19 March and the incident on 21 March.
65 In conclusion, I consider the representations made on 19 March 2021 regarding events on 19 March 2021 were made "shortly after" after the events. The representations are admissible under s 65(2)(b), except for the representation made to Brett Percy that one cannabis plant was stolen. By contrast, representations made on 21 March 2021 regarding the events on 19 March were not made "shortly after" and they are not admissible.
Section 65(2)(c)
66 An alternative pathway for admissibility of the representations is s 65(2)(c). The test is whether the representations made on 21 March 2021 regarding the events of 19 March 2021 were made in circumstances that make it "highly probable" that they are reliable. The test involves a higher threshold of "highly" probable and is concerned with reliability at large. The fact that the representations were made in the form of a statutory declaration weighs in favour of reliability. The fact he did not report it because of his own concerns about the cannabis plants suggests a risk of sanitisation and fabrication. The lapse of time is such that it is likely that Mr Percy would have retained a good recollection of events but does, however, provide an opportunity for fabrication. I acknowledge that the experience of physical attack, injury, and hospitalisation on 21 March would mean that, at least to some extent, the focus would be more on the events of 21 March rather than 19 March. In conclusion, I find that, having regard to the circumstances, there was not a high probability that the representations were reliable.
67 The representations made on 21 March 2021 about the events of the 19 March are not admissible under s 65(2)(c). There remains to be considered the question of the admissibility of representations made on 21 March 2021 about the events of 21 March 2021.
Admissibility of representations made regarding 21 March
Brett Percy
68 The representations made to Brett Percy on 21 March were made very soon after the incident on 21 March. He was on the property and responded to a telephone call from his father and found him
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in the immediate aftermath of the incident. It is clear that the representations were made shortly after
the asserted facts occurred.69 I also accept that the representations were made in circumstances that mean it was unlikely that they were a fabrication. Relevantly, the time that had elapsed was a very short period. The representations were a brief narrative by Mr Percy of what had happened when his son could see he had been attacked.
70 Other representations made by Mr Percy to others were broadly consistent with what he said to Brett Percy. There was an inconsistency in terms of the "big guy" trying to stab him with the knife. The representations in the statutory declaration did not identify that it was the "big guy" that tried to stab him with the knife. Rather, the representation was that "someone" did stab him, but he did not see who.
71 The representation that the smaller male came back around and struck him over the head with a baton suggests a different sequence to that in Mr Percy's statutory declaration.
72 Those inconsistencies do not suggest the representations to Brett Percy were, in any way, a fabrication. The immediacy of the narrative given to Brett Percy and the injuries sustained would likely account for the inconsistencies being mistakes or assumptions made about what happened, such as who inflicted the knife wound. It would be natural for the sequence to be jumbled, and the circumstances in which the representations were made are not suggestive of the representations being fabrications.
73 There is no suggestion that Mr Percy knew the individuals or had a motive to cast blame.
74 Counsel for the accused relied on other circumstances which are said to be hallmarks of the complainant being a drug-dealer. These circumstances are said to be:
• The presence of cannabis plants on 19 March; • The complainant's failure to report the burglary and stealing on 19 March; • The presence of cannabis product located on 21 March 2021 in a garbage bag in the house on 21 March; • The reference to having "normally" kept a firearm in the house before he moved it two years ago; • The complainant had a significant amount of cash in his pocket, and had provided an inadequate explanation for it; • The fact he had possession of a car that was not his and which he had not purchased from the owner, Renee Wallace, was suggestive of a drug debt. 75 Allowing for these circumstances, they do not suggest the account given by the complainant to Brett Percy in the aftermath of the incident was a fabrication. The inference that the complainant was a drug-dealer is a speculative proposition. Largely, the facts are consistent with the complainant being a cannabis user. However, even if he was a drug-dealer and sold cannabis, that does not suggest the representations to his son Brett Percy were a fabrication.
Renee Wallace
76 The phone call from Mr Percy to Renee Wallace occurred sometime on 21 March. It was a brief call informing her he had been attacked and her car had been stolen. It would be natural in the circumstances for him to report the theft of the car to the owner with a brief reference to what had happened. There is nothing about the circumstances, including the indicia of drug-dealing relied upon by the defence, which suggest that representation was a fabrication.
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Jake Percy
77 It can be inferred that the representations given to Jake Percy were within approximately two hours of the incident. His father was still at home, had not been taken to hospital, and he had not yet received medical attention.
78 There is a later representation made to Detective Stockdale that is not consistent with what Mr Percy said to Jake Percy. Mr Percy informed his son, Jake, that the "bigger male walked through the front door and accused him of sleeping with his ex-Mrs Chantelle". By contrast, the complainant told Detective Stockdale that "the bigger male asked if I had seen a girl (although I can't remember the name), which I said I didn't know her. The bigger male said that it was his daughter and that he knew she had been coming up here. He described the girl as having brown hair."
79 This remark has significance in the narrative as it is the only representation about what either male said before the attack. Mr Percy went on to say he denied knowing "her" and at that time, the other male struck him. It would seem that the question was a pretext for engagement and the attack.
80 On careful consideration, I find the inconsistency is not suggestive of either representation to Jake Percy or Detective Stockdale being a fabrication. Ultimately, there is nothing to choose between them in terms of either being a more advantageous account to Mr Percy such that he would have fabricated either version. It is not the case that the later version is suggestive of a concocted or refined version. Inconsistent accounts on this point do not suggest fabrication. Similarly, they do not imply other aspects of his account were a fabrication. He recalled when speaking to his son Jake that the bigger male referred to a name, "Chantelle", but not later when speaking to the police. The absence of this representation when speaking with police may be accounted for by the lapse of time, the stress of the incident, or his memory failing him on that point. The inconsistency as to the relationship is odd, "ex-Mrs" versus "daughter", but explicable on the basis that one is correct and the other a mistake, perhaps due to an unfounded inference or an assumption. Given the circumstances I have referred to, a mistake is more likely, in my view, than a fabricated detail.
81 The so-called "drug-dealer indicia" do not, when viewed on their own or together with the subsequent inconsistent representation in the statutory declaration, suggest that the representations made to Jake were a fabrication. I accept that Mr Percy's representations to his son Jake were made "shortly after" the incident and in circumstances that made it unlikely that the representations were a fabrication.
The statutory declaration to Detective Constable Stockdale
82 The statutory declaration was made at the hospital at around 5:00 pm, only approximately 4-5 hours after the incident. The account is largely consistent with the other earlier accounts but more detailed. He provides an account of why he did not report the incident of 19 March, which strikes me as a frank account. His representations made in the statutory declaration seem confined to his observations. The differences between his representations in his statutory declaration and his earlier accounts may be due to a more careful account confined to his actual observations. An example is his representation about not having seen the individual who stabbed him.
83 As noted before, Mr Percy did not know the individuals and there is no evident motivation or reason for fabricating what took place.
84 While the representations of what happened on 19 March are not admissible, there is nothing about those representations that suggest a fabricated account may have been given in his statutory declaration.
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85 The reason why he had a large amount of money in his pocket is unexplained. He says that "Bec gave me the money a few days ago because she had sold a house in Nash Street on the 11th of this month". This reason offers no explanation as to why "Bec" would be giving him such a large amount of money and why he was carrying it in his pocket on the day he was attacked. This raises a number of questions but does not suggest that the representation about the money is a fabrication.
86 As for the drug-dealer indicia, including the large amount of cash, the remarks made above at [75] are applicable here. Allowing for those circumstances, they do not suggest a fabricated account. The inference that he was a drug-dealer is speculative. Even if the inference could reasonably be drawn that he was a drug-dealer selling cannabis, that does not suggest his representations were fabricated.
87 His possession of three cannabis plants and the presence of cannabis in a garbage bag is not of itself suggestive of drug-dealing rather than possession for personal use and perhaps some low-level selling and supply. The possession of a firearm at his property two years before seems something of a non-issue. His declining to name the person responsible for the theft of his firearm is explicable due to fear of reprisals if he named that person and not necessarily due to a criminal association with that person.
88 Combining these ambiguous circumstances does not suggest a fabricated account was given by Mr Percy to Detective Stockdale. As I have stated before, even if it could be established that the complainant was a dealer in drugs, that does not suggest his narrative was a fabrication. It was suggested that he had money in his pocket because he went to the door expecting to sell drugs, presumably the drugs being some of the cannabis in the garbage bag. This is completely speculative. It does not even strike me as a likely reason for having so much money in his pocket. Even if it was the reason, it is not a circumstance which suggests his account was a fabrication except in relation to his explanation for the money being in his possession and perhaps his representation about the cannabis in the garbage bag.
89 I accept the representations recorded in the statutory declaration were made "shortly after" the incident and in circumstances that made it unlikely that the representations were a fabrication. Given this conclusion, there is no need to consider s 65(2)(c).
Section 137
90 Counsel for the accused contend that all of the representations ought to be excluded under s 137 of the Evidence Act.
91 Section 137 of the Evidence Act provides:
"137 Exclusion of prejudicial evidence in criminal proceedings
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 defendant."
92 Evidence is not unfairly prejudicial because it makes it more likely that the accused will be convicted. As Hunt CJ at CL said in R v BD (1997) 94 A Crim R 131, 139:
"The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way."
Quoted with approval in Papakosmas v The Queen (1999) 196 CLR 297 at [91].
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93 The submissions identified the ways in which it is said that the evidence might be misused by the jury unfairly. Central to the danger of unfair prejudice said to arise in this case is the inability of defence counsel to cross-examine the complainant in the context of this particular trial and the evidence that is proposed to be led. It is said that self-defence is raised by the two accused in their interviews with police. Critical issues on the trial will be why the men were there and what they did. Unfortunately, however, the detail of what Mr Percy said in his statutory declaration was not put to the accused during their police interviews. It was pointed out in submissions for the accused Mr Allie that in relation to his interview, the police do not put to the accused most of the allegations that were made by Mr Percy. The only allegation put with any precision or detail relates to the taking of the vehicle and setting fire to it.
94 The submission made on behalf of both accused is that this will mean that at their trial, Mr Percy's representations will not only be unassailed by cross-examination (because he is an unavailable witness) but that this will occur in the context of a trial where the accused in their interviews were not provided with an opportunity to refute Mr Percy's representations of what happened.
95 Counsel for Mr Allie submitted that this will create forensic pressure for him to give evidence to meet the State's cases and then the issues on his trial will be joined. It is submitted that the unfairness will be particularly marked if he does not give evidence. It is submitted that the jury are likely to draw an adverse inference from a failure to give evidence in this context.
96 Furthermore, it is argued that in this trial, given there will be no cross-examination of the complainant, no forensic challenge, and no joinder of issues arising from Mr Allie's record of interview, there will be a greater likelihood of the jury, in some way, impermissibly informing itself on Mr Allie's trial using Mr Maple's police interview.
97 This temptation to misuse the interviews is endorsed in the submissions by counsel for Mr Maple. It is argued for both accused that directions will not address the risks of unfairness that has been identified.
98 Counsel for Mr Maple contends that another relevant factor in considering the inability to cross-examine the complainant is that there is no opportunity to cross-examine the complainant about his drug use, which might have had implications for the reliability of his representations.
99 I consider the representations made by Mr Percy are highly probative. As stated by Crown counsel, they are representations of the criminal conduct the subject of the charges. Admittedly, they are not capable of establishing the identity of the perpetrators, but the descriptions given by Mr Percy bear on that fact in issue.
100 I acknowledge concerns about unfair prejudice arising from the trial context, such as the inability to cross-examine the complainant, the nature of the accounts given by the accused in their interviews which were lacking in detail and which, as a result, did not contradict the detail of the complainant's account. This could give rise to a risk of impermissible reasoning about the accused's failure to give evidence or give rise to a temptation to have regard to the co-accused's interviews.
101 This risk and the danger of impermissible reasoning, however, can be addressed by the giving of jury directions tailored to this case. A comprehensive direction will need to be given to the jury pursuant to s 165 of the Evidence Act regarding the potential unreliability of hearsay evidence highlighting the factors in this case that may undermine the reliability of the evidence. These factors include that the defence have not had an opportunity to test or challenge the complainant's account. Counsel will be invited to make submissions in relation to the detail of the directions to be given and to consider whether they request a direction during the course of the trial at the time the evidence of the representations is given, as well as during the summing-up.
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Oral ruling delivered on 21 October 2024
102 The ruling delivered on 21 October was as follows.
103 The final position of the State is that it seeks to admit all of the representations [in the Notice of Hearsay] apart from part of paragraph (v) which has been deleted and paragraph (w) relating to the firearm.
104 There are some issues with regard to the admissibility of two aspects of the Notice of Hearsay. The position of the State is that the representations at paragraph (t) are to be admitted. The comment of the fair skinned male, "no that's because I do", was originally said to be inadmissible by virtue of s 82 of the Evidence Act. Now, the position of the State is that it is admissible because it is acknowledged by Mr Allie in his interview. I am not convinced of that reasoning and how this acknowledgement renders the representation from the complainant admissible. The rest of the conversation in paragraph (t) is admissible for a non-hearsay purpose, ie as evidence of engagement and identification.
105 The representation to Brett Percy at (b)(iv) falls into the same category as paragraph (t). The representation made to Jake Percy at (b)(iii) relates to the same topic but does not involve second- hand hearsay and so arguably is admissible. I invite counsel to return to that.
106 In relation to the representations at paragraph (w) concerning the theft of the firearm, they are inadmissible because they do not satisfy s 65(2)(b) as they are not representations made "shortly after" the incident. The State indicated during legal argument that if the substance of the representations are admitted and the defence sought to admit the remaining representations, they may be admitted by consent. In light of that indication, and that the representations at paragraph (w) have relevance to the defence case, I will invite the State to consider its position with respect to those representations.
107 As for the balance of the hearsay notice, my ruling is as follows.
108 The representations made by Mr Percy to Detective Stockdale on 21 March 2021 about the incident on 19 March are not admissible pursuant to s 65(2)(b) as they were not made "shortly after" the incident. Further, the representations are not admissible under s 65(2)(c). I am not satisfied that the representations were made in circumstances that make it "highly probable" that the representations are reliable.
109 The representation made to Brett Percy on 19 March that one cannabis plant was stolen appears likely to have been fabricated when regard is had to the circumstance of the inconsistent account he gave police two days later which referred to three plants. All of the other representations made to Brett Percy and Renee Wallace and Jake Percy on 19 March are admissible pursuant to s 65(2)(b).
110 All of the representations made on 21 March about the events of 21 March are admissible pursuant to s 65(2)(b), including the representations made in the statutory declaration of Detective Stockdale.
111 In relation to evidence admissible under s 65(2)(b), the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused. [Counsel were informed about the opportunity they would have during the trial to make submissions with respect to jury directions and to request a direction at the time the evidence of the representations was given, as well as during the course of my summing-up]. I conclude that the danger of any unfair prejudice would not outweigh the probative value of the evidence.
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112 In light of this ruling, counsel for the accused may wish the representations to Detective Stockdale about 19 March to be admitted for reasons such as inconsistency with other representations about the number of intruders. Similarly, the defence may wish to have admitted the representation to Brett Percy on 19 March about one cannabis plant.
113 These are matters for counsel to consider and discuss as well as the aspects of the Notice I
mentioned earlier.
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