Tasmania v Dolega - [2016] TASSC 65

[2016] TASSC 65

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Dolega [2016] TASSC 65

PARTIES:  STATE OF TASMANIA
  v
  DOLEGA, Bianca Jane

FILE NO:  69/2015
DELIVERED ON:  23 November 2016
DELIVERED AT:  Burnie
HEARING DATES:  21-23 November 2016
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Evidence – Hearsay – Particular matters – Maker of statement not available.
Evidence Act 2001 (Tas), s 3B(1)(f).
Aust Dig Criminal Law [2802]

Evidence – Admissibility – Hearsay – Exceptions: first-hand hearsay – Whether representation made in circumstances that make it unlikely that the representation is a fabrication.

Sio v The Queen [2016] HCA 32; R v Ambrosoli [2002] NSWCCA 386, 55 NSWLR 603, followed.
Evidence Act 2001 (Tas), s 65(2)(b).
Aust Dig Criminal Law [1127]

Criminal Law – Evidence – Miscellaneous matters – Statutory provisions relating to evidence of children.
Evidence (Children and Special Witnesses) Act2001 (Tas), s 5.
Aust Dig Criminal Law [2956]

REPRESENTATION:

Counsel:
             State:  J Shapiro
             Accused:  G A Richardson
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Greg Richardson

Judgment Number: [2016] TASSC 65
Number of paragraphs: 62

Serial No 65/2016
File No 69/2015

STATE OF TASMANIA v BIANCA JANE DOLEGA

REASONS FOR RULING BRETT J

23 November 2016

The accused was charged on indictment with one count of committing an unlawful act intended to cause bodily harm and one count of assault.
After the jury was empanelled, I heard legal argument as to the admissibility of various pieces of evidence comprising the prosecution case. As part of that argument, I heard evidence on the voir dire. I was also referred to the prosecution papers. At the conclusion of the argument, I gave a ruling with brief oral reasons, and indicated that I would give more detailed reasons at a later time. The trial concluded shortly thereafter on the basis of a directed acquittal in respect of the charge of committing an unlawful act intended to cause bodily harm (after the prosecution failed to present any evidence with respect to that count), and a plea of guilty to the charge of assault (after leave was given to withdraw the plea of not guilty to that charge).
These are my detailed reasons for that ruling.

The prosecution case

The charges arose out of events which occurred during the early morning of 3 February 2015. The accused, a 37 year old woman, lived in a house in Sheffield with her partner, to whom I will refer as the complainant. For the sake of anonymity and ease of reference, I will refer to each of the other participants by their first name, and in the case of a child, by the initial S. Also living in the house at the time of the relevant events was the complainant's 23-year old son, Jake, Jake's partner, Jessica, and S, the 14-year old daughter of the accused and the complainant.
The relevant events occurred, as best as can be determined on the evidence contained in the prosecution papers, shortly before 1.30am on 3 February. By that time, the complainant, the accused and Jake had been consuming alcohol for a number of hours and were very intoxicated. S was present in the house but she had not consumed any alcohol. The actual events that occurred at the time of the alleged crimes were the subject of disputed evidence, but it is common ground that during the course of a confrontation between the adults in the house, the complainant suffered a severe knife wound to his abdomen, sufficient to cause his intestine to protrude through the wound. The infliction of the knife wound was alleged by the prosecution to be an unlawful act committed by the accused, with the intention of wounding or causing actual bodily harm to the complainant. The evidence which was the subject of objection, largely related to this allegation. The assault was alleged to have occurred subsequently when the complainant was awaiting the arrival of an ambulance.
The evidence upon which the prosecution case relied in respect of the events immediately surrounding the infliction of the wound, as notified to the accused by statements contained in the prosecution papers, can be summarised as follows:
(a)The complainant was available to give evidence and it was the intention of the prosecution to call him to do so. In his statutory declaration, he said that he recalled the start of the argument, but cannot remember who it was between or what it was about. The only thing he could recall is seeing a knife down the back of Jake's pants, contained in a stay sharp holder. He said that Jake pulled the knife out of his pants and then pulled the knife out of the holder. At that time, he, Jake and the accused were standing between the lounge room and the dining room. Jake was yelling at the accused. The complainant recalls the accused trying to get the knife off Jake and he, the complainant, trying to grab it also. He thinks he and the accused had a scuffle while this was going on. He then started to feel sick, walked into the kitchen, and when he looked down, he saw that he had been wounded and his stomach was protruding out of the wound.
(b)The prosecution gave notice that it intended to seek to have previous representations of Jake admitted into evidence, pursuant to s 65 of the Evidence Act 2001 ("the Act"), on the basis that he should be taken not to be available to give evidence within the meaning of s 3B of the Act. The previous representations are as follows:
(i) As two police officers were driving to the house, they were flagged down by Jake and Jessica. Having regard to the relative times referred to in various pieces of evidence, I infer that this would have been within 30 minutes of the infliction of the wound. Jake and Jessica were some distance from the house in the main street in Sheffield when the police officers met them. They observed that Jake was severely intoxicated and blood could be seen on various parts of his body. He told the police officers that the accused had stabbed the complainant. He repeated this on a number of occasions, but provided no further detail at that time.
(ii) Another police officer gave evidence that at about 11am on the same day, he prepared a statutory declaration by Jake. The effect of his evidence was that Jake was sober enough at that time, in the judgment of the officer, to make such a declaration. In the declaration, Jake asserts that an argument started between the accused and the complainant. The accused started punching the complainant. Jake got between them to protect his father and was punched by the accused. He says that he then saw the accused take a knife from a drawer in the kitchen and he saw her slash the complainant across the stomach with the knife. He then restrained her.
(c)The prosecution also gave notice that it would seek to tender a previous representation of Jessica, pursuant to s 65 of the Act, on the basis that she also should be taken not to be available to give evidence. The representation in question was contained in the recording of a 000 call. The call was one of a number of calls to 000, clearly made soon after the knife wound had been inflicted on the complainant. There was no real dispute on the part of the defence that the call in question was made by Jessica. The representations in it were to the effect that Jake had gone back into the house to help his father after leaving it, but had been chased by the accused, who was in possession of a knife. The prosecution asserted that this was circumstantial evidence which tended to prove that the accused had possession of the knife, and her state of mind was such that she was prepared to use it to attack other people.
(d)The prosecution also relied on other 000 calls. I will discuss the content of these calls in more detail later. They contain no direct evidence concerning the infliction of the knife wound.
(e)The only other person who was in the house at or about the time that the wound was inflicted was S. The prosecution intended to call S as a witness. Mr Shapiro applied for the admission into evidence of the record of a video interview between police and S, made prior to the trial, as the evidence-in-chief of S. The application was made pursuant to s 5 of the Evidence (Children and Special Witnesses) Act 2001. In that interview, S says that she saw the accused grab a knife and stab the complainant with it.
Defence counsel objected to the admission of the previous representations of Jake and Jessica, the 000 calls and the recorded interview with S. I will discuss the basis of each objection as I deal with the admissibility of the relevant evidence.

The previous representations of Jake

The prosecution relies on the said representations to prove the existence of the facts asserted in those representations, in particular, that the accused stabbed the complainant in the stomach with the knife during the course of the argument. However, evidence of the previous representations was not admissible to prove the existence of those facts (the Act, s 59), unless the hearsay rule does not apply to such evidence by virtue of one or more of the exceptions contained in the Act. In relation to Jake, the prosecution relied on the exception contained in s 65.
Section 65 will only apply if the person who made the previous representation is not available to give evidence about the asserted facts. Whether or not a person is to be taken as being not available to give evidence is dealt with by s 3B. The prosecution relied upon s 3B(1)(f), which provides:
"(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if —
…
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success."
Evidence was taken on the voir dire in relation to the issues raised by that subsection. That evidence established the following chronology:
(a) An order for preliminary proceedings which provided for the examination of a number of witnesses, including Jake and Jessica, was made on 21 October 2015. The preliminary proceedings were listed to commence on 28 January 2016. It was not clear to me why, but it would seem that in November 2015, Jake and Jessica were both arrested and bailed to appear on the date of the preliminary proceedings. However, they did not appear on that date and warrants were issued for their arrest. It would seem that the preliminary proceedings concluded without the attendance or examination of either Jake or Jessica.
(b) Constable Johnston gave evidence that on 28 June 2016, he made enquiries on the Tasmania Police computer system, in an effort to establish the whereabouts of Jake and Jessica. His searches revealed that soon after the warrants were issued in January 2016, there was a single attempt to serve them, but they were unable to be located at the address then known to police. He also discovered a notification that, in early February 2016, Jessica had contacted police in relation to a missing dog. I infer that these were the only notifications found by him in relation to either witness.
(c) The next step taken by Constable Johnston was in September 2016. He conducted a search on Facebook for entries relating to Jake or Jessica. What he found indicated that they may have gone to New South Wales. He followed up with enquiries of a police intelligence system, which confirmed that there had been some contact between the witnesses and police on the mainland.
(d) There was no evidence that anything further was done until 2 November 2016. On that date, a clerk from the DPP sent final notices for each witness to a police officer in New South Wales, requesting that he serve those notices on Jake and Jessica. It would seem that this was done after the prosecution had determined to list the matter for trial on 21 November 2016. The New South Wales police officer, Constable Morrison, gave evidence of enquiries he made after receiving the notices on 3 November. His enquiries commenced with an address at which Jake was required to live pursuant to a residential bail condition imposed by a New South Wales court. He discovered that Jake had been evicted from that address because of erratic behaviour. The constable made further enquiries and was successful in locating at least one further address at which Jake and Jessica had been living together, but they had also been evicted from that address because of "erratic and drug fuelled behaviour". It is a fair summary of his evidence that his enquiries over approximately two days after receiving the notices, revealed that Jake and Jessica were together, itinerant and effectively taking action to avoid being located by police. Jake, at least, was also wanted by New South Wales police. On 4 November, Constable Morrison left the final notices to be collected by Jake and Jessica at a local police station, and left a message with Jake's brother, which he hoped would be passed on, that the notices were available for collection there. By the time of trial, the notices had not been collected by them.
(e) Constable Morrison's enquiries also revealed a mobile telephone number for Jessica. During the course of cross-examination, he indicated that calls made to that number during his enquiries had gone to voice mail, and he had made no subsequent attempt to telephone the number. During the luncheon adjournment in the voir dire, a clerk from the DPP was successful in making contact with Jake on that telephone number. Jake made it clear that neither he nor Jessica had any intention of returning to Tasmania for trial, despite an offer from the prosecution to meet all expenses associated with their return. Jake said that he had said everything he wanted to say in his statutory declaration. He provided their current address, which he asserted to be in Brisbane.
The process for securing the attendance of witnesses in criminal proceedings in the Supreme Court is prescribed by the Criminal Procedure (Attendance of Witnesses) Act 1996. That Act provides for a two-stage process, service of a preliminary notice, and the issue and service of a final notice. Although a witness is not required to actually attend court until he or she is served with a final notice, the purpose of the service of a preliminary notice is to obligate the witness to advise the person who caused the notice to be issued of any change in their place of residence, employment or business, and of any circumstances which may prevent them from attending or giving evidence, either generally or during a particular period (see s 6 of that Act). In an appropriate case, an application can be made to a judge for an order requiring an intended witness to enter into a recognizance to secure his or her attendance as a witness.
It is conceded by the prosecution that no request was made for the issue of a preliminary notice, and no attempt made to serve such a notice on either Jake or Jessica. Mr Shapiro points out that these witnesses were the subject of outstanding warrants in any event, and that, therefore, it is unlikely that they could have been served with a preliminary notice, had one been issued. However, it seems to me that very little was done by the prosecution to locate and secure the attendance of Jake and Jessica, between the time that they failed to appear at the preliminary proceedings on 28 January 2016, and 2 November 2016, when the notices were sent to NSW. That step was undertaken a little less than three weeks before the commencement of the proposed trial. The listing of the trial was largely in the hands of the prosecution. There was no explanation provided to me as to why the trial was not listed until late November 2016, nor as to why no attempt had been made to locate and serve the final notices before 2 November. I accept that after that date, the prosecution took reasonable steps to locate Jake and Jessica, but by then it was, for all practical purposes, too late to effectively secure their attendance, even if they were able to be located. It is clear that they had no intention of returning and, effectively from the time they left Tasmania, it would be extremely difficult to secure their return.
A witness is only to be taken to be not available to give evidence if all reasonable steps have been taken to find the person and secure his or her attendance. The consequences of a finding that a witness is unavailable under s 3B of the Act are significant. In this case, in a criminal trial in respect of a serious charge, evidence that would otherwise be inadmissible as hearsay would be admitted in circumstances in which the defence would not be able to test or cross-examine the proposed witnesses. Jake's evidence, in particular, directly inculpates the accused in the crime. Hence, the scheme of the Act is that such evidence will only be admitted, if the witness is unavailable to give evidence, after all reasonable steps have been taken to find the witness and secure his or her attendance. In Sio v The Queen [2016] HCA 32, the High Court, in its joint judgment, emphasised the need for strict compliance with the preconditions of the admissibility of a hearsay statement, when it said at [60]-[61]:
"It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion. …
The serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. …".
The focus of the enquiry under s 3B(1)(f) is not on whether the steps which could have been taken would or would not have been actually effective in securing attendance. The potential outcome of a step is relevant to an assessment as to whether it is a reasonable step to take, but the section clearly requires that all reasonable steps be taken to find and secure the attendance of a witness before the witness will be considered unavailable, with the consequence that a previous representation will be admitted in proof of the facts asserted in that representation. In this case, the prosecution must have been aware from the time that Jake and Jessica failed to appear at the preliminary proceedings, that there may be a problem securing their ultimate attendance at trial. Despite this, very little was done to locate and serve them with the legal process prescribed by legislation for the purpose of ensuring such attendance. Apart from some general enquiries made by a police officer, it seems that nothing was really done about locating and securing the attendance of the witnesses until the matter had been listed in a trial grid, less than three weeks before the proposed commencement of the trial. At the very least, efforts should have been made shortly after January to find and serve the witnesses with a preliminary notice and, if necessary, apply for an order requiring the witnesses to enter into a recognizance. If necessary, arrangements could have been made to expedite the listing of the trial with a view to ensuring that the evidence was given when the witnesses were subject to such constraints. Of course, it is entirely possible that such steps may still have been unsuccessful in securing the attendance of these witnesses at trial. However, those reasonable steps were not taken and the legislation requires that they be taken as a precondition of admissibility.
In any event, it was established on the evidence that Jake and Jessica were in Tasmania in February 2016, and Jessica had even made contact with police during that month. In those circumstances, it is impossible to say that reasonable steps taken at that time, when they failed to appear at the preliminary proceedings, may not have yielded a successful result.

Having regard to these considerations, I was not satisfied that the prosecution had taken all reasonable steps to find and secure the attendance of either Jake or Jessica. Accordingly, s 65 of the Act did not apply to make admissible Jake's previous representations.
In any event, even if it was established that Jake was not available to give evidence about the matters asserted in the previous representations, the exception to the hearsay rule prescribed by s 65 would only apply if the representation fell into one of the categories specified in s 65(2). The prosecution relied in particular on s 65(2)(b) which provides:
"(2) The hearsay rule does not apply to evidence of a previous representation given by a person who saw, heard or otherwise perceived the representation being made, if the representation —
(a) …; or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; …".
As to the first limb of the said provision, I am satisfied that each representation was made shortly after the asserted facts occurred. The representation made to police on the street was made as responding police were en route to the house and, as I have already noted, it can be inferred from various pieces of evidence that this must have been within approximately 30 minutes, certainly no more than one hour, of the wound being inflicted on the complainant. The evidence of the police officer who took the statutory declaration was that it was taken at 11am, several hours after the relevant events. In all of the circumstances, I am satisfied that this timeframe falls within the definition of "shortly after" within the meaning of the said provision (cf Harris v The Queen [2005] NSWCCA 432, 158 A Crim R 454).
The second limb of s 65(2)(b) requires that the representation in question is made "in circumstances that make it unlikely that the representation is a fabrication". The operation of s 65 generally, with particular reference to s 65(2)(d), was considered in some detail by the High Court in Sio (above). There is a strong analogy between the operation of the provision under s 65(2)(b) and (d). In s 65(2)(d), the exception to the hearsay rule will apply if the representation was against the interests of the person who made it at the time it was made, and made in circumstances that make it likely that the representation is reliable. The focus of that provision is on the reliability of the representation, whereas under s 65(2)(b), it is on whether the representation is a fabrication. However, both subsections operate in a similar way. Under each, there is the need to consider the circumstances in which the representation was made, and the effect of those circumstances on either the credibility or reliability of the representation, as the case may be.
A number of general observations can be extracted from the joint judgment in Sio:
(a) There is a need to focus on the "particular representation that asserts a relevant fact sought to be proved" [56]. That approach is to be distinguished from what the High Court found to be the incorrect approach adopted by the Court of Criminal Appeal in Sio, ie, approaching the various representations made by the relevant person on a "compendious" basis to obtain an overall impression as to the reliability of statements made by that person. The consequence of this observation is that the circumstances in which the representation is made need to be examined with respect to their relationship to the particular representation in question, and not in a general way with respect to statements by that person. This observation will have particular significance in this case.
(b) The effect of the provision is to relax the exclusionary hearsay rule in the circumstances referred to in s 65(2). The court noted at [63]:
"Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable – and the asserted fact likely to be true – notwithstanding the hearsay character of the evidence."
The court went on to say at [64]:
"Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character."
Similar observations can be made in respect of the requirement in the second limb of s 65(2)(b). To allow the admission of the evidence in this case as an exception to the hearsay rule, I must be satisfied that the circumstances in which the previous representation was made "make it unlikely that the representation is a fabrication".
(c) The court noted at [70], however, that "The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made." This was further explained at [72]:
"… It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial."
Accordingly, I am not concerned with the apparent truthfulness of the statement or the credibility of Jake in a general way. The focus of my attention is on whether the circumstances in which the statements were made "make it unlikely that the representation is a fabrication".
(d) The High Court also made it clear that the trial judge must be positively satisfied that those circumstances answer the description contained in the relevant provision. Accordingly, the court is not so much concerned with excluding circumstances which would make it likely that the representation was a fabrication, but rather the identification of circumstances that make it unlikely that the representation is such. As the High Court said at [71]:
"… 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."
When the High Court applied these various considerations in Sio, it took into account that the inherent unreliability surrounding inculpatory evidence by an accomplice was a significant factor. The court noted that such unreliability is the subject of statutory warning pursuant to s 165(1) of the Act. The court's conclusion in relation to the application of s 65(2)(d)(ii) in that case was set out at [73]:
"It is sufficient for present purposes to say that a question mark necessarily arose over Mr Filihia's assertion that Mr Sio gave him the knife and put him up to the robbery, by reason of the circumstance that Mr Filihia was Mr Sio's accomplice. Nothing else in the objective circumstances in which the statement was made was apt to shift the balance in favour of a positive finding of likely reliability in respect of this asserted fact. It was not open to the trial judge to be satisfied positively of the likely reliability of Mr Filihia's assertion that Mr Sio gave him the knife by reference to the circumstances in which that assertion was made; and the Court of Criminal Appeal erred in failing to conclude that the trial judge had erred in this respect. The evidence should not have been admitted."
The circumstances in this case are not directly parallel to those in Sio. In Sio, there was no question on the prosecution case that the person who made the previous representation "might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding". That does not necessarily follow in respect of Jake's evidence on the prosecution case as it has been put to me. However, there are a number of circumstances appearing from the evidence contained in the prosecution papers which are relevant to the question arising under the second limb of s 65(2)(b):
(a) It must, on the prosecution case, be open, at least as a reasonable possibility, that Jake was criminally concerned or even responsible for wounding the complainant. Apart from the previous representations of Jake, and a previous representation of S, the only direct evidence relating to the events immediately preceding the wounding comes from the complainant. The complainant’s statutory declaration suggests that it was Jake, not the accused, who was in possession of and drew the knife immediately before he saw the injury. On the complainant's evidence, the possibility is open that Jake caused the wound, whether deliberately, recklessly or accidentally. Certainly the fact that the complainant says that Jake was in possession of the knife and pulled it out when the argument commenced, is contrary to the prosecution case, which is that the accused took the knife from a drawer in the kitchen. Jake's involvement, not as a witness, but as a participant in the struggle between the three people which was taking place at the time the wound occurred, places him in the position of a witness who might be supposed to be criminally concerned in the relevant events. Certainly, if he did cause the wound, he would have a strong motive to place the blame for that act elsewhere. This would be particularly so when he was confronted by police, whilst still subject to the effects of alcohol, shortly after the event occurred, and then in the police station when he was asked, some hours later, to make a statutory declaration. As was noted in Sio, drawing on a quote from Wigmore on Evidence, 3rd ed (1940), vol 5, §1422, the circumstances are not those that "are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed". They are not "circumstances that of themselves tend to negative motive and opportunity of the declarant to lie", Sio at [64].
(b) In R v Ambrosoli [2002] NSWCCA 386, 55 NSWLR 603, the Court of Criminal Appeal in New South Wales considered that, in determining the application of s 65, it was appropriate to take into account subsequent events, if those events are capable of affecting a consideration of the circumstances of the making of the representation. In a quote from Mason P, with whom Hulme and Simpson JJ agreed, cited in Sio at [69], it was said that:
"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".
In this case, events which, in my view, throw light on the circumstances of the making of the representation and whether those circumstances make it unlikely that the representation was a fabrication, include the circumstances already described relating to Jake's failure to answer a summons to attend preliminary proceedings, and his refusal to attend this trial, in particular the attitude expressed by him in his conversation with the DPP during the conversation described above. In short, an inference that can be drawn from that conduct is that, at the very least, he is not prepared to come to Court to answer and be tested on the statements he made to police shortly after the relevant events, which implicate the accused and draw blame away from himself. Such an attitude reinforces the possibility that the representations were a fabrication, and does nothing to support the essential finding that the circumstances must be such as make it unlikely that the representation is a fabrication.
(c) In his submissions, Mr Richardson, counsel for the accused, provided a detailed and careful analysis of evidence concerning events which had occurred earlier in the day, which suggest that Jake and the complainant had been involved in a dispute with another man, which had involved the infliction of violence upon that other man. Whilst these circumstances were not directly relevant to the events which occurred at the time of the wounding, it is apparent that in Jake's statutory declaration to police, he has made no reference to these events whatsoever. Whilst it should not be inferred that the evidence suggesting his involvement in these events was true, it is clear that there was some interaction earlier in the day involving Jake and violence. It is reasonable to expect that if he was an accurate historian of the events leading up to the commission of the alleged crime, he would have included mention of these circumstances. Their absence is again a circumstance which does not support a conclusion that it is unlikely that the representations in question were a fabrication.
In the words of the High Court in Sio already quoted, the matters discussed above give rise to a "question mark" over Jake's assertion that it was the accused who took the knife from the kitchen and stabbed the complainant with it. There is nothing else about the circumstances in which Jake made his previous representations that would "shift the balance in favour of a positive finding" that it is unlikely that the representations were a fabrication. Accordingly, I am unable to be satisfied of the matters referred to in s 65(2)(b), and, for that reason, the evidence is excluded by the hearsay rule and should not be admitted.
There was considerable argument which concerned the application of s 137 of the Act to the previous representations of Jake. However, the potential application of that section only arises if I am satisfied that the hearsay rule does not apply to the evidence. As I am not so satisfied, it is unnecessary for me to consider the application of s 137, and, in my view, it is not appropriate that I do so.
The prior representations of Jake will not be admitted.

The prior representation of Jessica

The prosecution relied on two separate bases for the tender of this evidence. I will discuss each in turn.
Firstly, the prosecution, as it had done with Jake's previous representations, relied on the exception to the hearsay rule set out in s 65(2)(b). For the same reasons as those given in respect of Jake, I am not satisfied that Jessica can be said to be not available to give evidence. Accordingly, s 65 will not apply to except the evidence from the hearsay rule.
In any event, I would not be satisfied that s 65 would apply to the representation in question for another reason. The hearsay rule excludes evidence of a previous representation for the purpose of proving the existence of an asserted fact (s 59). A previous representation is defined by s 3 to mean a representation made otherwise than in the course of giving evidence in the proceeding in which the evidence of the representation is sought to be adduced. Clearly, Jessica's representation in the 000 call falls within that definition.
Section 65 is one of a number of sections contained in Div 2 of Pt 2 of the Act which provide for the admission of such previous representations in particular circumstances. However, s 62 of the Act restricts the application of those sections, including s 65, to "firsthand hearsay". Section 62(1) and (2) are as follows:
"(1) A reference in this Division, other than in subsection (2), to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact."
The relevant representation in the 000 call concerns Jessica's statement that "she chased with a knife and … he tried to help". Taken in the context of the entire call, it is not clear to me at all that Jessica's knowledge of the asserted fact was her personal knowledge within the meaning of s 62(2). The possibility that she was relaying something that she was told by another person, for example, Jake, is as likely as her having personal knowledge of that fact. She certainly does not assert during the course of the call that she has personal knowledge, and there is no other evidence that touches that question.
Section 142 of the Act provides that the Court is to find the facts necessary for deciding a question whether evidence should be admitted or not admitted, has been proved, if satisfied that that they have been proved on the balance of probabilities. In determining that question, the Court must also take into account:
(a) the importance of the evidence in the proceeding; and
(b) the gravity of the matters alleged in relation to the question.
I refer again to the comments in Sio concerning the exceptional nature of the exception to the exclusionary rule provided by s 65. The evidence in question, whilst not fundamental to the prosecution case, is important evidence against the accused. It will not be tested if admitted pursuant to the exception. Accordingly, I should assess whether or not the fact that Jessica has personal knowledge of the facts asserted as being proved if satisfied of them on the balance of probabilities but, taking into account the importance of the evidence and the gravity of the matters alleged. Given that, in my view, it is equally open that Jessica was relaying something that she had been told when she made the representation in the 000 call, I am not satisfied that it has been proved on the balance of probabilities that she has personal knowledge of the facts asserted within the meaning of s 62. Accordingly, s 65 will not apply to this evidence.
The prosecution submitted that the evidence could also be admitted as an exception to the hearsay rule, having regard to the provisions of s 69 of the Act, which deals with business records. That section provides as follows:
"(1) This section applies to a document that —
(a) either —
(i)is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii)at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document, so far as it contains the representation, if the representation was made —
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
(3) Subsection (2) does not apply if the representation —
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.
(4) If —
(a) the occurrence of an event of a particular kind is in question; and
(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind —
the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.
(5) For the purpose of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived, other than a previous representation made by a person about the fact."

I accept that the recording in question is a document to which the section applies, having regard to the provisions of s 69(1). A voice recording falls within the definition of "document" contained in s 3. It would also seem clear that the ambulance service is a "business" within the meaning of s 3A(1) of the Act. Finally, it was conceded by the defence that the recording forms part of the records belonging to or kept by the ambulance service in respect of its business, and that the previous representation was made or recorded in the document in the course of, or for the purposes of, the business.
Section 62 of the Act is not applicable to s 69, and, accordingly, the restriction contained in that provision to the application of the exception only to "firsthand hearsay" is not applicable. However, the source of the representation is dealt with in some detail in s 69. In particular, the section will only except the evidence of the previous representation from the hearsay rule if the representation was made either by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact, or on the basis of information directly or indirectly supplied by such a person. As already noted, I am not satisfied that Jessica had, or might reasonably be supposed to have had personal knowledge of the asserted fact. However, the evidence would still be admissible if I was satisfied on the balance of probabilities that she made the representation on the basis of information directly or indirectly supplied by such a person.
For the same reason that I am not satisfied that she had personal knowledge of the asserted fact, I am not satisfied that she has obtained that information from such a person. In the 000 call, she is clearly distressed and the statements being made by her are confused and often not responsive to the questions posed by the operator. There is no other evidence at all surrounding the circumstances in which she has made the call, and, in particular, the representation relied upon by the prosecution. As already noted, one possibility is that she has witnessed the relevant events. Another equally available possibility is that she was relating what she had been told by Jake. However other possibilities are also available, given the state of the evidence. She could have been surmising what had occurred without having been given any information about it at all, or the information has been relayed to her by somebody else, second or third hand. There is simply no basis on which I could prefer, even on the balance of probabilities, one possibility over another. Accordingly, I am not satisfied that either of the requirements of s 69(2) has been made out. It follows that the section does not apply to this evidence.
Therefore, having regard to the provisions of s 59 of the Act, the evidence is not admissible. If the evidence had been admissible on the basis of s 69, I would then need to consider the effect of Div 1 of Pt 6 of the Act. These provisions provide a procedure whereby a party may request the production of a witness for the purpose of determining a question that relates to a previous representation. Where a request is lawfully made, but there is a failure or refusal to comply with it, then the consequences specified in s 169 can apply and this includes an order that the evidence in relation to which the request was made is not to be admitted in evidence. It is not necessary, in view of my determination in respect of the application of s 69, to consider these provisions. I simply note their existence and effect, particularly in circumstances where the prosecution seeks to adduce evidence of a previous representation in relation to an important matter in reliance on s 69 of the Act.

The other 000 calls

I will deal with each of these calls separately.
The first call was from a neighbour, Derek Drury. The prosecution proposed to call Mr Drury. His evidence, as notified in the proof contained in the prosecution papers, was to be that he heard people shouting from the house across the street. Shortly after, a girl of about 11 or 12 knocked on his door. She was very upset. He heard a male voice shout for her to get the police, and he could hear a female voice yelling "die, and other things, possibly bad language". He confirmed that the transcription was an accurate account of the conversation he had with the 000 operator. That transcription is consistent with his proof.
This evidence is relevant because it is testimony, and in the case of the 000 call, a recording, of events which actually took place at or around the time of the commission of the crimes. The fact that Mr Drury called 000, had the conversation with the operator, and that there were voices and events which can be heard in the background, provides the jury with relevant evidence of what took place at that time. The evidence is not admitted to prove the truth of the facts asserted in any representation contained during the course of the conversation. Accordingly, s 59 does not apply to the evidence, and it is admissible as circumstantial evidence which is relevant to prove the fact that an incident of the nature relied upon by the prosecution, a person being stabbed and injured, had actually taken place. The evidence will be admitted.
The next 000 call relates to the conversation between the operator and the young female after Mr Drury had handed the telephone to her. It is an irresistible inference that the female on the telephone is S. As already noted, the prosecution intended to call S as a witness.
The record of the conversation has general relevance for the reasons already described above. However, it also contains some representations in which relevant facts are asserted by S. The assertions within the 000 call are somewhat contradictory. S states that her father has been stabbed by her mother and describes some aspects of that event. When asked if there was any serious bleeding, she said that she was already walking up the road. It is not clear whether she was saying that she was walking up the road at the time of the stabbing, or shortly thereafter. Having regard to other evidence to be presented by S, there is an inference open that she did have personal knowledge of the events described by her.
I determined on balance that the evidence should be admitted. S was to be called as a witness. By virtue of s 66 of the Act, the hearsay rule will not apply to evidence of a previous representation made by her if, when the representation was made, the occurrence of the asserted fact was fresh in her memory. Clearly, given the contemporaneous nature of the telephone call, this requirement was satisfied. As to whether she had personal knowledge of the events, on the balance of probabilities, the prosecution case supported that she did so and, accordingly, the hearsay rule would not apply to previous representations contained in that telephone call.
The final 000 call in contention was a lengthy call made subsequent to the others by a friend who was called to the house after the incident and was attending to the complainant as he lay injured on the floor. Once again, it was the intention of the prosecution to call the friend to give evidence.
There is no doubt that the person makes a number of representations of fact during the course of the recorded conversation with the 000 operator. However, they are in relation to events which are actually occurring at the time, and matters of which he clearly has personal knowledge. Insofar as they amount to previous representations, they would be admissible under s 66. From time to time, a female can be heard in the background yelling, and the events which constitute the assault occur in the presence of the caller as the call is being made. These aspects of the recording are direct evidence of the occurrence of events which are relevant to the proof of both counts in the indictment. They are relevant because of their capacity to rationally affect, directly or indirectly, the assessment of the probability of the existence of facts in issue in the proceedings. These include the emotional state and demeanour of the accused, her conduct immediately after the infliction of the wound, the existence of the injury to the complainant, the interaction between the accused and the complainant, and the actual occurrence of the assault which constitutes count 2. I determined that, for these reasons, the entire recording should be admitted.
Throughout a number of the recordings, a female voice can be heard yelling comments which are consistent with her intention that the complainant should die. It can be inferred that the female in question is the accused. Mr Richardson submitted that this evidence should be excluded because it was relevant to a crime with which the accused has not been charged, namely, attempted murder. I reject that submission. Expressions of such a sentiment by the accused in the immediate aftermath of the wounding of the complainant could rationally affect the assessment of the probability of the existence of facts in issue, including her intention to harm the complainant and whether it was, in fact, she who inflicted the relevant wound. It would also be relevant to her state of mind at the time that she did so, and to rebut any suggestion that the wound occurred accidentally. Accordingly, such evidence is relevant to the charges in question, and should be admitted. It is not a basis to refuse admission that the evidence might also have been relevant to a crime arising out of the same circumstances, other than one with which she has been charged.

The evidence of S

The prosecution intended to call S as a witness. At the time of the trial, she was 15 years of age.
In respect of this trial, S is an "affected child" within the meaning of the Evidence (Children and Special Witnesses) Act. This is so because the definition of "affected child" in s 3 of that Act includes a child who is to give evidence in respect of family violence within the meaning of the Family Violence Act 2004, or who has witnessed a crime referred to in par (b)(i), which includes the crimes with which the accused was charged in this case. Because she was an "affected child", s 6B of the Evidence (Children and Special Witnesses) Act required that her evidence be given by audio-visual link unless an order under s 7 was in force. The prosecutor made an application under s 7 that s 6B not apply to the proceeding. I acceded to that application because I was satisfied, on the basis of what I was told by the prosecutor, that S was able to and wished to give evidence in the presence of the accused in the courtroom. The result of that order was that S would, when she came to give evidence, give her evidence from the witness box in the presence of the accused, in the normal way.
The prosecution also sought to admit into evidence a recorded video interview between S and police. I was advised by the prosecutor that the statement would constitute S's evidence-in-chief.
The admission of the interview in question is authorised by s 5 of the Evidence (Children and Special Witnesses) Act. Section 5(1) provides as follows:
"(1) In a prescribed proceeding, including a special hearing ordered under section 6A, the judge may admit into evidence a statement made by an affected child and recorded by any means if —
(a)   the statement relates to a matter in issue in the proceeding; and
(b)   the defendant has been given a copy of the record of the statement; and
(c)   the defendant is given the opportunity to cross-examine the affected child."
The statement in question is an interview conducted by police with S at 12.21pm on the day of the alleged crimes. It was a comprehensive interview dealing with all aspects of the child's observations and involvement in the events leading up to and surrounding the infliction of the wound on the complainant.
There is no basis, other than an exercise of discretion under this section, for the admission of the statement. As evidence of a previous representation, it is not admissible, having regard to the provisions of s 59 of the Evidence Act. The exception to the hearsay rule contained in s 66 of that Act will not apply to the evidence, having regard to the provisions of s 66(3).
It was common ground, and clearly apparent in any event, that the statutory preconditions of the exercise of discretion to admit the statement under s 5 of the Evidence (Children and Special Witnesses) Act have been met in this case. The proceedings are a "prescribed proceeding" within the meaning of that Act, the statement clearly relates to a matter in issue in the proceeding, the accused has been given a copy of the record of the statement, and would be afforded an opportunity to cross-examine the "affected child". Accordingly, the question for me was whether or not I ought exercise my discretion to admit the statement.
In most circumstances, it would be an entirely appropriate and proper exercise of discretion to admit such a statement. The power to admit the statement of a child as, in effect, the evidence-in-chief of that child, is entirely consistent with the principles relating to child witnesses set out in s 3A of the Act. In particular, such a process is a measure which may limit, to the greatest extent practicable, the distress or trauma suffered or likely to be suffered by the child when giving evidence. The process also fulfils the obvious purpose of facilitating and ensuring that the best evidence of the child concerning the matters dealt with in the statement is placed before the jury, and not unduly affected by the stress and intimidation inherent in the formal process of giving evidence. The prima facie requirement that the child give evidence via audio-visual link is a measure with a similar purpose.
In this case, however, there was a significant difficulty in the use of the statement to constitute the evidence-in-chief of S. On a number of occasions in the police interview, S says that she saw the accused stab the complainant in the stomach with the knife. One such statement is as follows:
"Sand she grabbed a big knife about this big and [the complainant] and Jake followed her and [the complainant] and Jake trying to get it off her and [the accused] stabbed dad in the stomach and then that's when I walked out because I didn't want to see it happen."
S's statement was placed in evidence at the preliminary proceedings, and S was cross-examined. During the course of the cross-examination, she was asked about her statement that she saw the accused stab the complainant. I set out the relevant extract from the cross-examination:
"No. Okay. And so you – did you see mum stab dad?...No.
No – … [indistinct word(s)] said in my statement that I it did. But I was very emotional and I wanted mum to pay for what she did –…
Right – … – but I know that's not right to lie.
Yeah. Oaky. And so you don't see mum do anything – well, is it true to say that you don't see mum do anything with the knife?...No."
During the course of submissions, I was told by the prosecutor that he had attempted to discuss with S the nature of her proposed evidence, but she had informed the prosecutor that she was not prepared to discuss her evidence with him. She did, however, clearly communicate to him her wish to give evidence in court.
At the time of the trial S was 15, almost 16 years of age. She had very clearly and directly, in sworn evidence in the Magistrates Court, recanted her statement to police that she had seen the accused stab the complainant. Whether she saw this act was clearly a crucial aspect of her evidence. Moreover, there was a clear acknowledgement from her in her evidence in the Magistrates Court that she was aware of the inconsistency between her sworn evidence and her statement to the police. She acknowledged that she had lied to the police and explained her reasons for doing so.
When I considered those aspects of the matter, together with her clear preference to give evidence in Court in the presence of the accused, it seemed to me highly unlikely that the statement to police would constitute the actual evidence that the child intended to give under oath. In those circumstances, I was of the view that it was artificial and inconsistent with the principles expressed in s 3A, to place the child in the position of having what she had already acknowledged to be a false statement, played to the jury as her evidence-in-chief. To take such a course would not, in my view, limit the distress and trauma she would suffer when giving evidence, would not be treating her with dignity, respect and compassion, and would increase the potential for her to be intimidated when giving evidence. Further, it would convey a false impression to the jury, that is, that her primary position is as stated to police, when that is contrary to the actual evidence she would give under oath.
Accordingly, it seemed to me that the appropriate way to proceed was to have the child simply give her evidence-in-chief in the normal way, in Court, in accordance with her wishes. Of course, depending on the evidence she gave, it was probable, almost certain, that her evidence would be inconsistent with one of her prior statements, either the statement to police or her answers in cross-examination at the preliminary proceedings. In the event that she gave evidence inconsistent with her statement to police, then the prosecutor would have the option of making application pursuant to s 38 of the Act for leave to question her as though he were cross-examining her about the prior inconsistent statement. If leave was granted, then that would be the appropriate manner of challenging her as to her reasons for making a false statement to police. From a procedural point of view, it would require that the prosecutor's challenge occur before defence counsel's cross-examination (see s 38(4)). Of course, if in her evidence-in-chief, she adhered to the statement made to police, then the defence would have the right to cross-examine as to the prior inconsistent statement arising out of her evidence to the Magistrates Court, in the normal way.
It seemed to me that this was the appropriate way to deal with S's evidence. I was confident that she had the capacity to give evidence without undue distress or trauma, even if challenged about a prior inconsistent statement. In arriving at this conclusion, I took into account her age, the fact that she had specifically requested to give evidence in Court, and my review of the manner in which she answered questions in the Magistrates Court under cross-examination.
The prosecutor had submitted that a preferable way to proceed was to allow the statement to be tendered as evidence-in-chief, defence counsel to elicit in cross-examination the contradictory evidence which it was expected she would give, in accordance with her evidence in the Magistrates Court, and then to consider a prosecution application under s 38 of the Act, for leave to cross-examine the child in re-examination. However, for the reasons given above, I considered this to be a somewhat artificial and inappropriate way of proceeding. Ultimately, the police statement was not sworn evidence, and the procedure preferred by me would enable the child’s sworn evidence to proceed and be tested in the normal way. In particular, to proceed as the prosecutor suggested would mean that if granted leave, he would cross-examine the child after defence counsel, which is contrary to the intended operation of s 38. Of course, it is possible to envisage circumstances, even with the child giving sworn evidence, in which it may become appropriate for the prosecution to apply for leave to cross-examine her as part of re-examination, and I am not intending by my comments above to predetermine or indicate how such an application should be determined in every contingency. The only point of my comments is that, in the circumstances of this case, it was appropriate that S give sworn evidence, and that the legal processes relevant to that evidence unfold in the normal way. Accordingly, I declined to exercise my discretion to admit the child's prior statement pursuant to s 5 of the Evidence (Children and Special Witnesses) Act.