The Queen v PW (No 2)
[2015] ACTSC 92
•9 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v PW (No 2) |
Citation: | [2015] ACTSC 92 |
Hearing Date(s): | 7-13 April 2015 |
DecisionDate: | 9 April 2015 |
Before: | Refshauge J |
Decision: | The application to admit the evidence of Senior Constable Leonard’s conversation with MB is refused. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – PRACTICE AND PROCEDURE – Trial – Act of indecency on a person under the age of 10 years – Hearsay – Second hand hearsay – Prior inconsistent statement |
Legislation Cited: | Crimes Act 1900 (ACT), s 61(1) Evidence Act 2011 (ACT), ss 43, 55, 56, 59, 60, 66, 81, Pt 3.2 |
Cases Cited: | Bai v Hammond [2013] ACTSC 275 Lee v The Queen (1998) 195 CLR 594 |
Texts Cited: | Stephen Odgers SC says in Uniform Evidence Law (Thompson Reuters; Sydney, 2014) 11th ed Australian Law Reform Commission, Uniform Evidence Law (ALRC: Sydney, 2005) Report No 102 |
Parties: | The Queen (Crown) PW (Accused) |
Representation: | Counsel Mr M Fernandez (Crown) Mr J Pappas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich and Associates (Accused) | |
File Number(s): | SCC 208 of 2013 |
Refshauge J:
In September 2012, the complainant in these proceedings, whom I shall call JB, made a disclosure to her mother that the accused, PW, had touched her vagina over her clothes on a number of occasions. As a result, PW was charged with two counts of committing an act of indecency on her, contrary to s 61(1) of the Crimes Act 1900 (ACT).
His trial before me and a jury commenced on 7 April 2015. During the cross‑examination of the informant, Detective Senior Constable Stephanie Leonard, PW’s counsel, Mr J Pappas, asked some questions about statements that had been made to her by JB's brother, whom I shall call MB, when Detective Senior Constable Leonard interviewed him during her investigation of this case. In particular, the police officer's attention was drawn to the following passages:
Qu 17: Yep, tell me all about Harry’s mum.
A:Um, Janine is his actual mum and wait – Janine’s actually his stepmum as well but, um, and – we, every time we went there, me and JB – JB might have a play date there and the last time – the last time I went there I, I made a chocolate cake and I went to the pool.
Qu 18:Okay. Tell me more about that.
A:And at the pool, PW was – at the pool PW was in there as well and he was swimming under water and touched his rude bit – touched her rude bit.
Qu 19: Okay. And did you see him touch her rude bit in the pool?
A:Um, no.
Qu 20:So how do you know he touched her rude bit?
A:Um because my sister told me.
Reference to matters on which Mr Pappas also relied were contained in the answers that MB gave to questions 21 to 33 and 65 to 74.
The Crown indicated that it was not proposing to call MB as a result of a ruling this court, The Queen v PW [2014] ACTSC 121, in which an application by the Crown for leave to admit certain evidence as tendency evidence had been refused.
It appears that, as a result, Mr Pappas instead proposed to adduce the evidence of Detective Senior Constable Leonard of her conversation with MB, asking that it be admitted because of its apparent inconsistency with answers he had elicited from JB in cross‑examination of her as follows:
Now, on the day that I have called the cupcake day I suggest and I think you agree that you arrived at the house where Harry and tom lived fairly early in the morning. I said 8:00 and you thought it might have been 9:00. Do you remember that? --- Yes.
And did you see PW later on that day? --- Yes, I did.
Did you see him, for instance, at the swimming pool? --- No.
Now, you are sure about that, aren’t you? --- Yes, I am.
He never went to the swimming pool with you that day, did he? --- No, he didn’t.
And you have never been to a swimming pool when PW has been there at all, have you? --- Can you please say that again?
Yes. I’m asking you about the cupcake day and you said he didn’t go to the pool with you that day and my next question is: he has never been to the swimming pool with you, any swimming pool with you, has he? --- He hasn’t.
He hasn’t? --- He hasn’t been at a pool with me.
Have you ever told your brother, MB, that PW touched your rude bits under water at the swimming pool? --- No, because he didn’t.
Have you spoken to your brother, MB, about PW touching your rude bits? --- No.
Never? You are shaking your head as though to say no but you mean to say no, do you? --- Yes. No.
Now, remember what you told his Honour about telling the truth that you would tell the truth, the whole truth and nothing but the truth, don’t you? --- Yes.
Now, it is not true, is it, to say that you have never told your brother, MB, about PW touching your rude bits? That’s not true? --- I haven’t told him.
That’s not true, is it? --- I haven’t told him.
You are quite sure of that, aren’t you? --- Yes.
The Crown objected to the admissibility of the questions being asked of Detective Senior Constable Leonard on the ground that it was hearsay evidence but inadmissible by virtue of s 59 of the Evidence Act 2011 (ACT).
Mr Pappas argued that it was admissible under s 60 of the Evidence Act. That section provides:
60 Exception—evidence relevant for a non-hearsay purpose
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2) (Restriction to first-hand hearsay)).
Note Subsection (2) was inserted as a response to the decision of the High Court in Lee v The Queen (1998) 195 CLR 594.
(3) However, this section does not apply in a criminal proceeding to evidence of an admission.
Note The admission might still be admissible under s 81 as an exception to the hearsay rule if it is first-hand hearsay—see s 82.
The High Court unanimously noted in Lee v The Queen (1998) 195 CLR 594 at 604; [40] that the section "was intended to work a considerable change in the common law." See also Mulcahy v The Queen [2012] ACTCA 3 at [77].
Mr Pappas initially submitted that the evidence was admissible under s 60 of the Evidence Act because the non-hearsay purpose was that the evidence was relevant. Section 56 of the Act provides that "relevant evidence is admissible in proceedings." An important limitation on that is that this provision is subject to any other provision of the Act. That is to say that, once it is accepted as relevant (defined in s 55 to mean that "it could rationally affect directly or directly the assessment of the probability of a fact in issue in the proceedings") it is admissible, unless a provision of the Act excludes it.
Hearsay evidence is excluded under s 59 of the Evidence Act but there are a number of exceptions set out in Pt 3.2 of the Act. Apart from s 60, none of the exceptions in that Part were applicable to this evidence.
In my view, it is clear that relevance of itself is not "a purpose" referred to s 60 of the Evidence Act. This follows from the qualifier "other than proof of an asserted fact," for that is, in another form, simply a reference to a defined meaning of relevance for the purposes of the Act. In any event, to suggest that any hearsay evidence could be admitted under this section because it was relevant and being admitted for that purpose, would render s 59 completely ineffective.
In any event, it seems to me that s 60 of the Evidence Act has to be viewed as a provision dealing with the use of evidence already admitted, not with the admissibility of evidence otherwise inadmissible. If evidence was inadmissible because it was hearsay evidence, excluded by s 59 of the Act but otherwise admissible under some other provision of the Act, for example as proof of an intention, where that is in issue, or as a prior inconsistent statement, a prior consistent statement or the basis of an expert's opinion or conversations relevant to proving the making of an agreement for sale, then the evidence would be admitted. That evidence would then be available under s 60 to be used for a non‑hearsay purpose, subject to any direction that the court made.
That is to say s 60 of the Evidence Act deals with the use to which that evidence, already admitted, may be put.
It is not a provision that deals with the admissibility of any evidence. In his invaluable text and indispensable tool for the litigator, Stephen Odgers SC says in Uniform Evidence Law (Thompson Reuters; Sydney, 2014) 11th ed, at 259; [1.3.9.940]:
It is important to stress the word 'admitted.' This provision will only have operative effect once evidence has been admitted in a proceeding. It has no bearing on whether the evidence is 'admissible' or should be admitted in the first place. See ALRC 102 at paragraph 7.83.
I note that this position seems, at least implicitly, to have been accepted by Blow J in Tasmania v B (No 2) [2012] TASSC 39 at [6].
I agree with what Mr Odgers says. It seems to me to be clear on the words and follow logically from the Evidence Act as a whole.
Mr Pappas, however, relied on a decision of Murrell CJ in Bai v Hammond [2013] ACTSC 275, which, he submitted, supports the admission of the evidence. Her Honour had to consider whether the evidence of a police officer should have been admitted in the Magistrates Court, from whose decision the appeal she was hearing had been made. The Appellant had been convicted of the unlawful use of a firearm, intentionally discharging it. At issue was whether the discharge of the firearm was intentional or not. The sister of the Appellant was said to have told the police officer that the Appellant had told her "I triggered the gun." The Appellant's sister, however, later resiled from that statement. The learned Magistrate admitted the evidence of the police officer.
The Appellant's sister appears to have given evidence but not of the statement she was said to have made to the police officer. She was cross‑examined. Murrell CJ accepted that the statement said to have been made by the Appellant's sister to him was admissible as an admission and would have been admissible under s 81 of the Evidence Act.
To this extent, the two cases were similar. The evidence sought to be admitted was evidence of what is known as "second-hand hearsay," namely a report by a person of what another person told the first person of what a third person told the second person; that is, a police officer giving evidence of what a person the officer is interviewing told the officer of what another person had said.
Initially in Lee v The Queen, it was held by the High Court that s 60 of the Evidence Act did not apply to second-hand hearsay. That section was then amended, as a result of a further report of the Australian Law Reform Commission, Uniform Evidence Law (ALRC: Sydney, 2005) Report No 102 at 203-22; [7.63-7.144], by the insertion of s 60(2) and (3), which made it clear that the section did apply to second-hand hearsay but not in criminal proceedings to evidence of admissions.
In Bai v Hammond, her Honour held that the evidence of the police officer was admissible to prove that the Appellant's sister was an unreliable witness. Prima facie, its admission for this purpose would have activated the provision of s 60 of the Evidence Act to permit the statement made to the police officer to be used to prove the offence by way of admission but it was excluded by s 60 ss (3), as her Honour held.
I cannot see that this decision assists Mr Pappas. The evidence of the police officer was admissible because the Appellant's sister had made a statement in her evidence that was inconsistent with what she told the police officer. In this case, MB has given no such evidence. Indeed, the Crown has indicated that it will not call him, so even if, somehow, the evidence could be given prospectively for that purpose, in the event that MB might, in his evidence, resile from what the police officer said that she was told by MB, that question does not arise here.
In any event, such a prospective approach would not make the evidence admissible. It can only be upon the giving of evidence said to be inconsistent with a prior statement that the prior statement's admissibility, with all the safeguards required by s 43 of the Evidence Act, is able to be considered under, for example, s 66 of the Evidence Act.
While Mr Pappas is correct that her Honour accepted that the statement of the police officer was admissible because it was evidence of a prior inconsistent statement, that the admission was first hand hearsay. Had it been second hand hearsay, it would not have been admissible. That is to say, the statement of the police officer would not have been admissible to prove that the Appellant had, in the statement she made to her sister, made a statement inconsistent with the evidence that she had given to the court. No provision of the Evidence Act would have permitted that.
Accordingly, I refuse the application.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Judgment of his Honour Justice Refshauge. Associate: Date: 28 April 2015 |
0
5
2