The Queen v Bravos (No 2)
[2020] NTSC 35
•1 July 2020
CITATION:The Queen v Bravos (No 2) [2020] NTSC 35
PARTIES:THE QUEEN
v
BRAVOS, Peter
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21832399
DELIVERED: 1 July 2020
HEARING DATE: 21 May 2020
JUDGMENT OF: Burns J
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – Crown proposes leading evidence under s 66 of the Evidence (National Uniform Legislation) Act 2011 (NT) – four witnesses – whether the evidence is inadmissible as hearsay – whether the event was “fresh in the memory” of the complainant at the time she made the representation
Criminal Code 1983 (NT) s 192(3)
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 56, 59, 60, 66, 66A
Evidence (National Uniform Legislation) Bill 2011 (NT) cl 66Evidence Act 1995 (NSW) s 66(2)
Evidence Amendment Act 2007 No 46 (NSW)
Graham v The Queen (1998) 195 CLR 606, R v Bauer (2018) 359 ALR 359, R v XY (2010) 79 NSWLR 629, referred to.
Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006)
Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019)
REPRESENTATION:
Counsel:
Crown: N Papas QC
Accused: J Lawrence SC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Robert Welfare & Associates
Judgment category classification: B
Judgment ID Number: BUR2002
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Bravos (No 2) [2020] NTSC 35
No. 21832399BETWEEN:
THE QUEEN
AND:
PETER BRAVOS
CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered 1 July 2020)
[1] The Crown proposes leading evidence under s 66 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA) at the trial of the accused from four witnesses. The accused objects to that evidence on the basis that it is inadmissible as hearsay.
[2] The accused is awaiting trial on two charges of sexual intercourse without consent, contrary to s 192(3) of the Criminal Code 1983 (NT). The offences are alleged to have been committed on or about 6 November 2004. The evidence which the Crown proposes leading is evidence of what the complainant DP said to others about these events. The witnesses who can give evidence of this nature are Mr Geoffrey Bahnert, Ms Susan Moore, Sergeant David Richardson and Ms Kylie Chambers. Before considering the evidence that each witness may be able to give, I will set out the statutory provisions relevant to the issue.
The ENULA
[3] Except as otherwise provided by the ENULA, evidence that is relevant in a proceeding is admissible in the proceeding: s 56 of the ENULA. Evidence is relevant when, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the ENULA. An exception to these principles set out in the ENULA is the hearsay rule, which provides that evidence of a previous representation made by a person is not admissible to prove existence of a fact that it can reasonably be supposed that the person intended to assert by the representation: s 59(1) of the ENULA. The hearsay rule is expressed as a general rule, and is an exception to the principle that relevant evidence is admissible. But the hearsay rule is itself subject to exceptions, rendering admissible material that would otherwise be excluded by the hearsay rule.
[4] Relevantly for present purposes, one such exception to the hearsay rule is found in s 66 of the ENULA, which provides:
66Exception – criminal proceedings if maker available
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a)that person; or
(b)a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A)In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:
(a)the nature of the event concerned; and
(b)the age and health of the person; and
(c)the period of time between the occurrence of the asserted fact and the making of the representation.
Note for subsection (2A)
Subsection (2A) is inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.
(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.
(4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.
Note for section 66
Clause 4 of Part 2 of the Dictionary is about the availability of persons.
[5] The learned author of Uniform Evidence Law, 14th edition, Stephen Odgers, describes the effect of s 66 of the Uniform Evidence Acts, at 447, as follows:
The effect of this provision is that first-hand hearsay in oral or documentary form is not excluded by the hearsay rule in criminal proceedings where the person who made the representation is available to give evidence (about a fact he or she intended to assert by the representation) and, when the representation was made, the occurrence of that fact “was fresh in the memory” of that person.
[6] Of course, in the present proceedings the “person who made the previous representation” is the complainant. The admissibility of the evidence the Crown proposes to adduce, to the extent that it otherwise satisfies the provisions of s 66, depends on the Court determining that any fact which the complainant intended to assert to the witness when she spoke to the witness was fresh in the complainant’s memory at the time. The complainant has already given pre-recorded evidence, including cross-examination, which will be played to the jury at the accused’s trial, so there is no issue that she is available to give evidence about the asserted facts as required by s 66(1) of the ENULA.
The evidence
[7] Geoffrey Bahnert participated in a recorded interview with police on 17 July 2018. At one time, he was Officer-in-Charge of the Sexual Crimes Unit where the complainant was working before she transferred to the Drug Squad around 2003 or 2004. Mr Bahnert recalled the complainant coming to his home on a Saturday and telling him that she had been sexually assaulted. He made notes of that conversation. The notes were made in a 2005 diary, and appear on the page for Saturday 16 April 2005. Mr Bahnert explained that when he made the notes, he simply opened the diary and commenced writing on a random page, so that the date of the page is not indicative of the date of the conversation. Mr Bahnert believed that the incident to which the complainant was referring took place the evening before the complainant spoke to him or perhaps a week before the complainant spoke to him. He said that the complaint appeared “very earnest and serious…resolute more than upset”.
[8] The notes made by Mr Bahnert of the conversation with the complainant were:
[DP] came to our house and wanted to talk. She said following the 000 Ball she was very drunk and shared a taxi back to a work colleague’s house. She expected his wife and kids to be there, but they were down south. Upon realising this she noticed that the taxi had already departed. They went inside and had a coffee and then continued to consume alcohol. The next thing she remembers is crashing out on the bed. The next memory is waking up with the male having lifted her clothes up to expose her breasts and then was touching it. She then said that she was very drunk and as a result played some part in having sex with the male. She later identified the male as being Peter Bravos. There was further conversation about other matters personal and then [DP] left.
[9] Mr Bahnert was questioned by police about his “understanding” of the events to which the complainant was referring:
My understanding was that um, the rouse [sic] of going back to his house was that she obviously been told that or there was an assumption his wife and kids were at home, um therefore she was quite comfortable going back. She was just going to crash at his place ah the wife and kids were there so she believed that there to be no threat. Upon arriving and realising that nobody was home um, she tried to go out and catch a taxi again and the taxi had already gone, so she sort of felt trapped I suppose for want of a better word and um, yeah, she was drunk to the point of passing out and when she woke up he was basically fondling her as I, she said exposed her breasts and was touching it and then, she said in her drunken stupor that she not really, um she wasn’t sure on how that went but you know intercourse did occur and that’s basically what she told me around that and that’s why I said in there that she doesn’t remember what, or she did play a part in the sex but wasn’t sure how that came about, obviously having intercourse she was playing a part, you know cause it takes two to tango and I think that’s the inference she was making that he did have sex with her and she did not um, fight, scream, yell, scratch um which is not uncommon in those type of events. And so, because of that um, I didn’t believe there was any forensic value at that time and asked her, and she had not made no formal complaint so, I believed at that time I was waiting for her to do so for this to come forward. And um, many a times over many years I’ve waited for her to do that and um, been concerned that it hadn’t happened.
[10] Later in the interview Mr Bahnert said:
It was pretty much that she was asleep or unconscious due to the alcohol and she only stirred or woke up as a result of his intervention in removing her clothing or moving her clothing and then physically touching her which caused her to wake up. That was the most specific thing for me that she was unconscious and he’d initiated sexual contact. That to me is the part that played out the most. When she said she was a party to the sex, that’s um I didn’t push her on that. It was her story to tell me. And I just recorded pretty much the basics around the information that she’d given me knowing full well that it was probably going to be a statement of first complaint. Um, having worked in the sexual crimes area and um, that’s why I’ve kept it for so long and waiting for her to make the complaint.
[11] It is apparent that much of the above is not cast in admissible form, but that is not an issue in the present application for a ruling that the evidence is inadmissible. Undoubtedly, any attempt to lead evidence from Mr Bahnert regarding this conversation will need to focus on what the complainant said to him, but the above provides a guide to the evidence of complaint that Mr Bahnert may be able to give.
[12] Susan Moore is the wife of Mr Bahnert, and was residing with him in 2004. Ms Moore made a statutory declaration on 23 January 2019 in which she recalled the complainant coming to her and Mr Bahnert’s house sometime in 2005. The complainant wanted to speak to Mr Bahnert, and Ms Moore did not remain with them for that conversation. After the complainant left, Mr Bahnert told Ms Moore that the complainant had been sexually assaulted by the accused at his home.
[13] The Crown cannot lead the evidence of Ms Moore of what Mr Bahnert told her that the complainant told him under s 66 of the ENULA, as the evidence of Ms Moore is in that regard second-hand hearsay. The evidence may, however, be admissible for a non-hearsay purpose pursuant to s 60 of the ENULA. The evidence may be admissible not as proof of the truth of the assertion that the accused sexually assaulted the complainant but in order to prove, if relevant, that:
(a) a conversation occurred between the complainant and Mr Bahnert in which the complainant asserted she was sexually assaulted by the accused; and
(b) the conversation occurred in 2005.
[14] Sergeant David Richardson is a member of the Northern Territory Police Force. He participated in a recorded conversation with police investigating the present matter on 22 June 2018. He recalled having attended a 000 Ball in late 2004 or in 2005. He recollected that the complainant and the accused were present, and the accused was not with his wife. He provided police with his recollection of events on the evening of the 000 Ball and thereafter.
[15] During the course of the interview, Sergeant Richardson referred to a conversation that he had with the complainant in October 2008 when he and the complainant were both working at Nhulunbuy in the Northern Territory. Sergeant Richardson told the investigating police:
Um…so that’s around about the time that the conversation occurred and I remember it distinctly because it was at the back of the Nhulunbuy Police Club. We were out in the courtyard, um, actually outside of the building area and we were just having a few, um, beers that night, and, ah, however the subject got onto it, I – I think it had been something that’s simmering away throughout the years that her and Peter BRAVOS had, sort of, slept together that night and I was quite keen, from my recollection, to understand why she had left the Drug Squad so quickly. Um, as I said, that was something that I distinctly remember her doing and, um, it was then that she told me that – that basically she had been raped by Peter BRAVOS and I can – I can’t give you the direct speech of what she told me, but there’s some areas of what she told me that I remember. The main – and I can go through them in the order that I seem to recall them – were that she had gone back to his house, um, and that was voluntary. Um… but inside the house – and as I said, this conversation lasted for quite a while, but the parts that I remember are that she went inside the house, and there was some sort of refusal to allow her into the, um, I suppose the marriage bed, into the main bedroom of the house, and that he wasn’t going to, um, allow that to happen. But he said that, um, they were going to sleep together – and as I said, I’m paraphrasing, I don’t remember the exact words – but if they were going to sleep together, it was going to be in one of the children’s bedrooms. She didn’t want to do that, however he forced her into one of the bedrooms and then un-consensual sex occurred. She was emotionally upset and felt quite degraded about the whole thing, and at the end of it, um, she made [sic] have mentioned something about a taxi, from my recollection, whether or not he just said go get a taxi and just told her to leave, or he wouldn’t call her a taxi – it was something about a taxi. But, she remembered leaving just, um, just quite depressed and upset about the whole thing. Um…that was about that night, she went on to tell me about how, um, she considered, um, committing suicide and that, um, her good friend Kath CRAWLEY, um, had to, I suppose, provide some intervention around that. Um, almost had to drive into the Drug Squad to stop her from getting her glock pistol from out of the, um, armoury, and ah…and then – and that was the catalyst for why she had left so abruptly from Drug Squad. And that’s the salient points that I remember from that conversation.
[16] Later in the interview, Sergeant Richardson was asked whether he could recall the complainant saying anything further about the accused forcing her to have sex, and he said:
No, I just know that it was an un-consensual act, however she described that – I can’t remember the details, or the words. However, you don’t get told by a friend every day of your life that. That’s the only time I’ve been told by a friend in my life that she’d been raped by someone…so you don’t really forget that. The wording of it, I wouldn’t do it justice what she said. She was quite emotional, even in 2008, she started crying in – when she was telling me the story, and I just remember feeling quite emotional about it myself to say – I remember saying “we’ve gotta report it, we need – why aren’t you doing it”. Sorry, these are some of the other points I remember about it. She didn’t want to report it because at the time, she was married. She’d gone through a break up and then she was back together with the same husband, and she didn’t want to dig up that part of her life through a court case, which could potentially break her up – break up that relationship for a second time, so she was quite, ah, in a bit of – a bit of pickle about the whole thing and just didn’t want, um, didn’t want to – just wanted to leave it behind her and move away from it. You know, she basically told me I had to keep out of it and just not to tell anyone, and she just wanted that confidentiality of – from me, to not take it any further.
[17] As with the proposed evidence of Mr Bahnert, many of the statements made to police by Sergeant Richardson in this interview are not in admissible form, but the interview provides a guide as to what Sergeant Richardson may be able to say regarding his conversation with the complainant in 2008.
[18] Kylie Chambers participated in a recorded conversation with police on 21 December 2018. She recollected an occasion which she thought occurred in about 2009 when she and the complainant were at Wadeye (Port Keats) in the Northern Territory. She said that the complainant told her that she had been sexually assaulted by the accused “about five years in, when she’d first started in the police force”. Ms Chambers was fairly certain that the complainant said this occurred when she, the complainant, was in the Drug Squad. Ms Chambers said that the complainant told her she had not reported the sexual assault “because she’d only been in for that short period, that it would actually have a big implication on her career and she wasn’t willing to do that, um, and she didn’t think, um, that she’d be able to, sort of, go through it herself anyway”.
[19] Later in the interview, Ms Chambers recollected that the complainant told her she had had a lot to drink at the time of the alleged assault and that she had got a lift back to the accused’s place. Ms Chambers went on to say that the complainant told her:
…she got back there, she was in a room and the next – like, next thing she realised was that Peter BRAVOS was on top of her and that’s when she woke up and she realised what had happened, um, that he’d been having sex with her while she was passed out…
Consideration
[20] The ENULA was passed by the Northern Territory legislature on 26 October 2011. It was in the same form, relevantly for the present purposes, as cognate legislation already in force in the Commonwealth and a number of States. Clause 66 of the Evidence (National Uniform Legislation) Bill 2011 (NT) (the Bill), which later became ENULA, contained cl 66(2A) in the same terms as s 66(2A) is now found in the Act. I presume that the Bill was drafted in this way to ensure that the ENULA was in the same terms as the cognate provisions found in the Commonwealth and State Acts.
[21] The legislative note for s 66(2A) (see [4] above) says that the provisions of s 66(2A) were inserted as a response to the decision of the High Court in Graham v The Queen (1998) 195 CLR 606. That case concerned the provisions of s 66(2) of the Evidence Act 1995 (NSW), which was (and is) in the same terms as s 66(2) of the ENULA. The plurality of the High Court (Gaudron, Gummow and Hayne JJ) in considering the meaning of “fresh in the memory” in s 66(2), said, at [4]:
The word “fresh” in its context in s 66, means “recent” or “immediate”. It may also carry with it a connotation that describes the quality of memory (as being “not deteriorated or changed by the lapse of time”) but the core of the meaning intended, is to describe the temporal relationship between “the occurrence of the asserted fact” and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship will very likely be measured in hours or days, not as was the case here, in years.
(Citations omitted).
[22] In 2006, the Australian Law Reform Commission (ALRC) released the final report of its review of the Uniform Evidence Law: ALRC 102. It recommended that the Uniform Evidence Acts be amended to make it clear that, for the purposes of s 66(2), whether a memory is “fresh” is to be determined by reference to factors in addition to the temporal relationship between the occurrence of the asserted fact and the making of the representation. The final report made reference to psychological research on memory, and at 8.120 of the final report, said:
Psychological research carefully and specifically crafted to look at the factors affecting the memory of eyewitnesses to crimes also supports this amendment. The research shows that while focussing primarily on the lapse of time between an event and the making of a representation about it might be justifiable in relation to memory of unremarkable events, the distinct and complex nature of memory of violent crime indicates that the nature of the event concerned should be considered in deciding whether a memory is “fresh” at the relevant time. The assessment of “freshness” should not be confined to time.
[23] It was against this background that the Commonwealth and State Uniform Evidence enactments were amended by the insertion of s 66(2A), and that the ENULA was enacted with s 66(2A) included. In particular, s 66(2A) was inserted into the Evidence Act 1995 (NSW) by the Evidence Amendment Act 2007 No 46 (NSW), and the amended s 66 came to be considered by the New South Wales Court of Criminal Appeal in R v XY [2010] NSWCCA 181; 79 NSWLR 629 (XY). At [99], Whealy J, with whom Campbell JA and Simpson J agreed, said:
[t]he expression, “fresh in the memory”, is now to be interpreted having regard to the considerations specified in s 66(2A) and such other matters as the court considers relevant to the question to be dealt with in the section. In particular, “the nature of the event” looms large in the matters now to be considered. That represents a very significant change to the interpretation given to the phrase “fresh in the memory” determined by the High Court in Graham’s case.
[24] The approach taken in XY was subsequently endorsed by the High Court in R v Bauer [2018] HCA 40; 359 ALR 359 (Bauer) where the Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) in a joint judgment said, at [89]:
In Graham v The Queen, a majority of this Court held that, as s 66 of the Evidence Act 1995 (NSW) was then drafted, its use of the word “fresh” imported a close temporal relationship between the occurrence of the asserted fact and the time of making the representation and hence that contemporaneity was the most important consideration in assessing a representation under that section. Thereafter, sub-s (2A) was inserted into s 66 of the Evidence Act to make clear that the intention of the section is that “freshness” is not confined to the time which elapses between the occurrence of the relevant event and the making of the representation about that event. Since then, it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years. It depends on the facts of the case.
(Citations omitted).
[25] It is not necessary in order for a court to make a finding that a matter was “fresh in the memory” of a person making a representation about the matter that the person give evidence to that effect; the court may infer that to be the case from the surrounding evidence. This includes the nature of the event described by the witness, the degree of specificity of events contained in the representation, the age of the person making the representation at the time of the event and at the time of making the representation, the apparent emotional state of the person at the time they made the representation and any particular characteristics of the person making the representation which may bear upon the issue. The temporal relationship between the alleged event and the making of the representation remains relevant, but it is no longer to be viewed as the determinative factor.
[26] In the present case, the complainant was a mature adult woman at the time she says she was raped by the accused, and at the time it is said that she made the relevant representations to each proposed witness (not including Ms Moore, to whom it is not alleged she made any representations). On the evidence of the complainant, this was a traumatic and emotional event such as to be likely to remain fresh in her memory for a long time. It is clear that the case for the accused will be that sexual intercourse did occur, but it was consensual. If sexual intercourse between the accused and the complainant was consensual, then the event may lack the traumatic or emotional nature which the ALRC referred to as important to the question of the quality and longevity of memory of events. It is, in my opinion, inevitable that in determining whether a representation made by a complainant about an event is fresh in their memory at the time they make the representation, the complainant’s description of the event must be the basis for making the determination. Any other approach would require the court, for the purposes of determining whether the representation was one to which s 66 applied, to determine the very issue the jury will have to determine. That is, whether the act of sexual intercourse was non-consensual.
[27] It follows from the above that any discrepancies alleged between the representations made by the complainant and other evidence to be led at the trial, are not relevant to determining whether the event was “fresh in the memory” of the complainant at the time she made the representation: see in that regard Bauer at [93] to [94]. The question of the truth of the representation is a matter for the jury.
[28] Mr Bahnert described the complainant’s demeanour as “very earnest and serious” at the time she spoke to him. Sergeant Richardson described the complainant’s demeanour at the time she spoke to him as “quite emotional” and said that she was crying. In her recorded conversation with police, Ms Chambers makes no reference to the demeanour of the complainant in 2009 at the time the complainant made the representation to her about the relevant event.
[29] The temporal proximity of the event to the representation being made by the complainant to Mr Bahnert is at the outside of 12 months. It may well be shorter. The representation made to Sergeant Richardson was made four years after the event and that to Ms Chambers some five years after the event. None of the representations are so remote in time from the event that, by itself, temporal proximity would prohibit a conclusion that the events were fresh in the complainant’s memory at the time she made the representation.
[30] The fact that the complainant was intoxicated at the time of the event may well have implications for how much of the event she was subsequently able to recall, but there is no reason to conclude that it would affect the quality or longevity of the memories she does possess.
[31] The traumatic and emotional nature of the event (as described by the plaintiff), her age at the relevant time, her demeanour at the times she made the representations to Mr Bahnert and Sergeant Richardson, and the degree of specificity of the event and its surrounding circumstances contained in the representations, strongly militate in favour of finding that the event was fresh in the memory of the complainant at the time she made the various representations. None of the representations were made at a point so remote in time from the event to suggest, taking into account the other circumstances, that the event was no longer fresh in the memory of the complainant.
[32] I am satisfied that the evidence which the Crown proposes leading from Mr Bahnert, Sergeant Richardson and Ms Chalmers is admissible pursuant to s 66(2) of the ENULA.
[33] I will add that to the extent that each of the proposed witnesses (except Ms Moore) gives evidence of a representation by the complainant as to why she, the complainant, did not make a formal criminal complaint at the time of the event, or was not willing to make one at the time of making the representation to the witness, such representations may be admissible under s 66A of the ENULA as evidence of the complainant’s state of mind. As this matter was not argued before me, I will make no formal ruling.
[34] The accused made no submission that the proposed evidence from Mr Bahnert, Sergeant Richardson or Ms Chalmers should be excluded on discretionary grounds.
[35] I order that these reasons not be published other than to the parties until the accused’s trial is finalised.
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