The Queen v Semaan and Ors (Rulings 8, 9 and 10)
[2016] VSC 226
•11 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0127
S CR 2015 0124
S CR 2015 0125
| THE QUEEN |
| v |
| ALEXANDER SEMAAN HANNA SEMAAN MEGAN BELJULJI |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 & 29 April 2016 |
DATE OF RULING: | 11 May 2016 |
CASE MAY BE CITED AS: | The Queen v Semaan & Ors (Rulings 8, 9 & 10) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 226 |
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CRIMINAL LAW – Offences – First accused (D1) charged with murder (Charge 1) – Second accused (D2) and third accused (D3), the sister and fiancée of D1, both charged with two counts of attempting to pervert the course of justice (Charges 2 & 3) in relation to the criminal proceedings against D1 – The prosecution (P) alleges that D1 shot and killed the deceased, V – D1’s defence is that unknown intruder shot and killed V – P alleges that D2 and D3, knowing or believing D1 shot and killed V, interfered with a witness who says he saw D1 shoot V (Charge 2) – P also alleges that D2 and D3, knowing that the crime scene had been altered, requested police to re-examine crime scene with a view to police finding false evidence intended to exculpate D1 (Charge 3).
EVIDENCE – D1 challenges admissibility of a previous representation by YK to police officer, S, on night of shooting – Previous representation by YK was to the effect that D1 was still in possession of a gun – Firsthand hearsay – Previous representation not a formal or informal proof of evidence caught by s 66(3) of the Evidence Act 2008 – Admissible under s 66 of the Evidence Act 2008 – No unfair prejudice that would enliven s 137 of the Evidence Act 2008 or the Haddara discretion (Ruling No 8).
EVIDENCE – D1 challenges admissibility of previous representation by YK to police officer, K, on night of shooting – Previous representation by YK was to the effect that D1 pointed a gun at YK – First hand hearsay – Previous representation not a formal or informal proof of evidence caught by s 66(3) of the Evidence Act 2008 – Admissible under s 66 of the Evidence Act 2008 – No unfair prejudice that would enliven s 137 of the Evidence Act 2008 or the Haddara discretion (Ruling No 9).
EVIDENCE – D1 and D3 challenge the admissibility of previous representation by MK, sister of YK, to NS, sister of D1, on night of shooting – Previous representation by MK was to the effect that D1 pointed a gun at everyone in his bungalow – NS claims to have no recollection of speaking to MK but, in a recorded conversation on the night, she told a detective, C, of the previous representation by MK – NS confirmed at a Basha hearing that it was her voice on the recording made by C and that she had the recorded conversation with C – If NS gives evidence in line with the evidence she gave on the Basha hearing, evidence of MK’s previous representation will be admissible under s 66 of the Evidence Act 2008 – No unfair prejudice that would enliven s 137 of the Evidence Act 2008 or the Haddara discretion (Ruling No 10).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams QC Mr N Hutton | Office of Public Prosecutions |
| For the Accused A Semaan | Mr M Sharpley | Valos Black & Associates |
| For the Accused H Semaan | Mr J Kelly | Matthew White & Associates |
| For the Accused M Beljulji | Mr D Cronin | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
The following three rulings concern the admissibility of hearsay evidence which the prosecution wishes to adduce.
By way of background, there are three accused and three charges on the one indictment. Alex Semaan (Alex) is charged with murder (Charge 1). His sister Hanna Semaan (Hanna) and his fiancée Megan Beljulji (Megan) are both charged with two counts of attempting to pervert the course of justice (Charges 2 & 3) in relation to the criminal proceedings against Alex.
The prosecution case, so far as the murder charge is concerned, is that Alex shot the deceased, Michael Bekhazi, (Michael) in the backyard of the Semaan family home on the night of 1 December 2014. The prosecution relies to a significant degree on an eyewitness Tony Kanaan (Tony), a former friend of Alex, who says he saw Alex shoot Michael in the head at point blank range. Alex’s case is that there was an unknown and armed intruder, who tried unsuccessfully to rob him in his bungalow at the rear of the family property, and who must have shot Michael as he was leaving the property. The defence say Tony is an “ice” user who is so lacking in credibility and reliability that his version of events, namely, that Alex shot Michael, cannot be accepted. All section references below are to the Evidence Act 2008.
The impugned evidence
Pursuant to s 66, the prosecution seeks to adduce hearsay evidence that Alex was observed by two relatives, Youssef Khoury (Youssef) and his sister Margaret Khoury (Margaret), to be in possession of a gun shortly after Michael was shot.
Although Youssef and Margaret will both be called by the prosecution to give evidence, it is not anticipated that either of them will give direct evidence that they saw Alex in possession of a gun on the night of 1 December 2014. In his statement to police signed on 4 December 2014, Youssef made no mention of seeing Alex on the night of the shooting[1] and, at committal, he stated expressly that he did not see him that night.[2] In her statement to police signed on 1 December 2014, Margaret made no mention of seeing Alex on the night in possession of a gun[3] and, at committal, she mentioned seeing a number of people on the night but not Alex.[4] Hence, the prosecution seek to rely on two previous representations made by Youssef, and one previous representation made by Margaret, on the night of 1 December 2014 to the effect that they each saw Alex in possession of a gun shortly after the shooting.
[1]Depositions 234-7.
[2]Ibid 127.
[3]Ibid 238-42.
[4]Ibid 130-6.
Summary of rulings
Both alleged previous representations by Youssef are admissible for a hearsay purpose under s 66.
The alleged previous representation by Margaret may also be admissible for a hearsay purpose under s 66. It will depend on Alex’s sister Noelle Semaan (Noelle), who is alleged to have heard Margaret making the relevant previous representation, giving evidence before the jury in accordance with the evidence she gave at a Basha hearing on 29 April 2016.
Neither s 137 or the Haddara[5] discretion are engaged because, in my view, there is no unfair prejudice if the previous representations are admitted.
[5]Haddara v R [2014] VSCA 100; (2014) 43 VR 53 at [53] & [65] per Redlich and Weinberg JJA. The “Haddara discretion” refers to the common law discretion to exclude evidence that, if admitted, would cause an unfair trial.
Relevant statutory provisions
The Evidence Act 2008 relevantly provides:
59 The hearsay rule—exclusion of hearsay evidence
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2)Such a fact is in this Part referred to as an asserted fact.
(2A) …………..
62 Restriction to “first-hand” hearsay
(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.
(3) …………..
66 Exception—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)……………
(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.
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
The elements of the s 66 exception to the hearsay rule
The elements of the s 66 exception to the exclusionary hearsay rule may be summarised as follows:
·The maker of the previous representation had personal knowledge of the asserted fact;
·The maker made the previous representation when the asserted fact was fresh in his or her memory;
·The maker is available to give evidence about the asserted fact;
·The maker will give (or has given) evidence;
·The witness through whom evidence of the previous representation is to be adduced is either the maker or a witness who perceived the previous representation being made;
·The representation is not adduced by the prosecution; or the representation concerns the identity of a person, place or thing; or the representation was not made for the purpose of indicating the evidence that the maker would be able to give in an Australian or overseas proceeding.
Previous representation of Youssef to Sergeant Seddon
Sergeant Seddon attended the crime scene on the night of the shooting at 9.47 pm.[6] She says in her statement that almost immediately after arriving she was approached by Youssef:
When I first arrived at 137 Donald Street, Brunswick East, I drove into Lanark Street and was approached by a male person wearing a white singlet and shorts. I did not obtain his details at the time, but I have since been able to identify him using the police database, as Youssef KHOURY (28/05/1987) of 3 Lanark Street, Brunswick East. I had the following conversation with him when he initially approached my vehicle in Lanark Street.
He said, “A man’s been shot in the head.”
I said, “Who is it?”
He said, “I don’t know.”
I said, “Who shot him?”
He said, “My Uncle. You better move, don’t stay here because he’s in there and he’s still got a gun.”[7] (emphasis added)
[6]Depositions 599.
[7]Ibid 603.
The previous representation which is the subject of this ruling is the representation that “he’s still got a gun.”
The prosecution submits that the asserted fact is that Youssef’s uncle Alex was in possession of a gun at the relevant time. Although Youssef did not refer to Alex by name in the short conversation he had with Sergeant Seddon, I am satisfied, in all the circumstances, that he was referring to Alex, not some other uncle. The defence did not contend otherwise.
The elements of the s 66 exception which are in dispute in relation to this previous representation are whether Youssef, the maker of the previous representation, had personal knowledge of the asserted fact and whether he made the representation for the purpose of indicating the evidence that he would be able to give in an Australian proceeding.
The prosecution submits that I ought be satisfied that Youssef’s assertion that Alex was still in possession of a gun was based on personal knowledge, that is, Youssef actually observing Alex in possession of the gun. Alex submits that it may have been based on something Youssef was told.
I am satisfied that it was based on what Youssef observed, mainly because of what Youssef told Constable Kerr just a few minutes after Youssef had spoken to Sergeant Seddon. As detailed below at [20], Youssef told Constable Kerr that the offender had pointed a gun at him.[8] That Youssef was referring to Alex when he referred to the offender follows from the fact that he had told Sergeant Seddon a short time before that his uncle was the shooter.
[8]I am satisfied that Youssef observed Alex pointing the gun at him before he spoke to both Constable Kerr and Sergeant Seddon. There is no reason to think that in the few minutes between Youssef speaking to Sergeant Seddon and Youssef speaking to Constable Kerr that Youssef observed Alex pointing the gun at him.
I turn now to whether Youssef’s representation to Sergeant Seddon was made to indicate the evidence that he would be able to give in an Australian proceeding. In Saunders v R,[9] Crawford J, with whom Slicer and Evans JJ agreed, observed at [60]:
The reference in [s 66(3)] to the purpose of the making of a representation is clearly a reference to the purpose of the maker and not the purpose of whoever may have heard the representation. That was the view of Wood CJ at CL in Esposito (1998) 105 A Crim R 27 at 34. If a person makes a detailed statement to a police officer or legal practitioner that is recorded in the form of a proof of evidence, the statement will almost invariably be one made by the person for the purpose of indicating the evidence that the person will be able to give in any subsequent court proceedings. However, the case may not be so clear if immediately or shortly after an incident, a person at the scene makes a representation to a police officer who has just arrived at the scene and is trying to find out what has happened. In such a case, the purpose of the representation may only be to make a complaint or allegation or to provide information to the officer to assist the investigation of what took place. Giving evidence at prospective court proceedings might not form part of the representor’s purpose.
[9][2004] TASSC 95 (Tas CCA); (2004) 149 A Crim 174.
Youssef’s previous representation was not made for the purpose of indicating the evidence that he might give subsequently. It was not a formal or informal proof of evidence. Rather, it was made for the purpose of assisting the police to deal with a continuing and dangerous situation – a man had been shot and the suspected shooter, Alex, was believed to be still inside the premises in possession of a gun.
If evidence of this previous representation is admitted, I do not think there is a risk that the jury will misuse the evidence or give it more weight than it deserves. The fact that it makes the prosecution case stronger is not prejudice of the relevant kind. Hence, neither s 137 or the Haddara discretion are engaged. I rule that evidence of Youssef’s previous representation to Sergeant Seddon may be adduced by the prosecution (Ruling No. 8).
Previous representation of Youssef to Constable Kerr
Constable Kerr arrived at the crime scene at approximately 9.50 pm,[10] that is, a few minutes after Sergeant Seddon arrived. After speaking to Sergeant Seddon, Constable Kerr had a conversation involving Youssef. She says in her statement:
As I was yelling at the crowd to move towards us, a male in a white singlet and shorts walking with a limp approached me and said, “He’s crazy; don’t go in there, you need the SWAT or something”. This male is now known to me as Youssef KHOURY (28/05/1987). A female has also approached me stating that she needed an ambulance; I told her that an ambulance would not be coming while the offender was still armed but an ambulance was just around the corner and we are doing everything we can to make the area safe so that the ambulance could attend. At this time a second male then approached me who was talking on a mobile phone; I now know this male to be Tennous [sic] SEMAAN (25/01/1993). SEMAAN was talking to a 000 operator. He said to me, “She said they were coming”, in reference to the ambulance arriving. I heard the 000 operator ask SEMAAN, “Do the girls in the back ground know where the offender is?” on hearing that I said to SEMAAN, “Where is he?” in reference to the offender. Both SEMAAN and KHOURY said that they didn’t know where the offender was or where he went. The female asked, “Who?”, and either KHOURY or SEMAAN replied “Alex”. The 000 operator has then asked SEMAAN who “Alex” was, to that SEMAAN passed the mobile phone to me. I then had a conversion with the 000 operator regarding the situation and was informed that the ambulance was in Holmes Street. I told the operator that police would not be entering the address as the offender was still armed and his location was not known.
I handed the phone back to SEMAAN who told me that he had tried CPR and that blood came out of victim’s mouth. KHOURY said that the offender was “crazy” and that he had pointed the gun at him. The female was hugging me saying that her mother was inside and that I needed to go inside and get her out”.[11] (emphasis added)
[10]Depositions 607.
[11]Ibid 608.
The previous representation that is the subject of this ruling is that the offender pointed the gun at Youssef.
The prosecution submits that the asserted fact is that Alex pointed the gun at Youssef. Having regard to what Youssef told Sergeant Seddon when she first arrived at the crime scene — in particular, that his uncle had shot the victim[12] — I am satisfied, on the balance of probabilities, that when Youssef told Constable Kerr that the offender pointed the gun at him, he was referring to Alex.
[12]This previous representation is not relied upon for a hearsay purpose. Rather it goes to Youssef’s state of mind concerning whom he believed to be the shooter. Proof of that belief assists in understanding who Youssef meant when he told Constable Kerr that the offender pointed a gun at him.
The only element of the s 66 exception which is in dispute in relation to this previous representation is whether the representation was made by Youssef for the purpose of indicating the evidence that he would be able to give in an Australian proceeding.
As with Youssef’s previous representation to Sergeant Seddon, I am satisfied that his previous representation to Constable Kerr was made to assist the police to resolve an ongoing, dangerous situation, not for the purpose of indicating the evidence that Youssef could give in subsequent proceedings.
I do not think there is a risk that the jury would misuse or overvalue the evidence. Hence, neither s 137 or the Haddara discretion are engaged. I rule that evidence of Youssef’s previous representation to Constable Kerr may be adduced by the prosecution (Ruling No. 9).
Previous representation of Margaret to Noelle
Detective Cunha arrived at the crime scene at approximately 10.15 pm[13] and was there until approximately 10.55 pm.[14] Whilst at the scene, Detective Cunha spoke to Noelle, and recorded their conversation (the Cunha recording). In the course of that recorded conversation, Noelle said she had had a conversation with Margaret. The transcript of the relevant part of the Cunha recording reads as follows.
[13]Depositions 657.
[14]Ibid 658.
Male: “Sorry. You said he’s in the bungalow?”
SEMAAN: “Yeah. At the back of my mum’s there’s a bungalow, my
brother lives in the bungalow with his girlfriend.”
CUNHA: “And that’s Megan is it?”
SEMAAN: “Megan.”
CUNHA: “Is she safe?”
SEMAAN: “I don’t know they’re both off their fuckin’ heads. They’re
probably both ...(inaudible)... each other.”
CUNHA: “On Ice?”
SEMAAN: “Yeah.”
CUNHA: “Okay. Alright. What kind of, do you know what kind of gun
he’s got?”
SEMAAN: “I didn’t even know he had a gun.”
CUNHA: “Alright that’s fine.”
SEMAAN: “He just come out of prison not long ago.”[15]
[15]Any reference to Alex having been in prison must of course be deleted from both the recording and the transcript to be considered by the jury.
CUNHA: “Okay.”
SEMAAN: “A couple of months ago.”
CUNHA: “Alright. And he’s living with your mum. Is your mum, she’s
84 years old I understand?”
SEMAAN: “No 86.”
CUNHA: “Is she in the bungalow or is she in the main part of the
house?”
SEMAAN: “Where she lives or where she is now?”
CUNHA: “Yeah.”
SEMAAN: “Just.”
CUNHA: “Both.”
SEMAAN: “She lives in the house.”
CUNHA: “She lives in the house?”
SEMAAN: “But she went in the bungalow to see what was going on.”
CUNHA: “Yeah.”
SEMAAN: “And she ‘cause she’s got asthma and all that. She sat
down...”
CUNHA: “Yeah.”
SEMAAN: “...Margaret was telling me, and Margaret’s trying to get her
up and then my brother turned on everyone, so pointing the
gun at everyone.”
CUNHA: “Okay.”
SEMAAN: “So Margaret left and called the police.”
CUNHA: “Margaret left?”
SEMAAN: “Yeah.”
CUNHA: “And so Margaret’s the lady in the blue?” (emphasis added)[16]
[16]Depositions 803–4.
The previous representation which is the subject of this ruling is the previous representation attributed to Margaret, namely, that Alex pointed the gun at everyone.
The prosecution submits that the asserted fact was that Alex pointed a gun
The elements of the s 66 exception which are in dispute in relation to this previous representation are whether Margaret had personal knowledge of the asserted fact and whether evidence of the previous representation by Margaret will be given by a witness who perceived the previous representation being made.
The prosecution relies on the content of Margaret’s previous representation as indicating that it was based on personal knowledge of the asserted fact, not on what someone else told Margaret.
Megan submitted that it could have been based on what Margaret was told, that she may not have actually been in the bungalow. It was submitted that she could have been speaking to Alex’s mother over the phone, trying to get her to leave the bungalow. I consider that submission to be a strained interpretation. I am satisfied, on the balance of probabilities, that it was based on her own observations while she was in the bungalow trying to assist Alex’s mother to “get up.”
Whilst Margaret will be called as a witness for the prosecution, it is not anticipated that she will give evidence of making the previous representation. On the contrary, in her statement to police signed at 11.21 pm on 1 December 2014,[17] and in her evidence at committal,[18] she made no mention of having entered the bungalow on the night. According to her account at committal, she lived across the street from the crime scene, she heard a commotion and went across the street to investigate, entering the backyard through the gate. The people she saw whilst she was in the backyard were Tannous Semaan, her brother Youssef and the deceased: she did not see Alex. She only stayed a short time and then went back to her own house and called 000. She came outside again around the time that police arrived.
[17]Ibid 238.
[18]Ibid 130–6.
As for Noelle, she is not anticipated to give evidence directly that Margaret told her that Alex was pointing a gun. In neither her statement to police or in her evidence at the Basha hearing on 29 April 2016 did Noelle say that she spoke with Margaret on the night of the shooting. In fact, at the Basha hearing she said that she could not recall speaking to Margaret Khoury at all on the night.[19]
[19]Trial transcript (Third Trial), Queen v Semaan & Ors (Supreme Court of Victoria, Justice Beale, 18 April — 2 May 2016), 518 (‘Third Trial Transcript’).
At the Basha hearing, however, the prosecution played the Cunha recording to Noelle. Noelle acknowledged that she was the female voice and gave the following evidence in examination in chief:
So, Ms Semaan, that’s the conversation you had with Detective Cunha on the night of 1 December; correct?---Yep.
The person you refer to as “Margaret”, can you tell me Margaret’s surname please?---Margaret Khoury.
What you told Detective Cunha on that night about what Margaret had told you, is that in fact what Margaret told you?---I honestly can’t remember Margaret saying that. I can’t remember really speaking to Margaret on that night.
That’s what you told Detective Cunha on that night?---Yeah, that’s what I told him but I can’t remember speaking to Margaret specifically on that night.[20]
…………………….
[Prosecutor reading from transcript of Cunha recording] Then the next line is: “Margaret was telling me and Margaret’s trying to get her up and then my brother turned on everyone and started pointing the gun at everyone”?---(The witness nodded).
That’s information that you had and gave to Detective Cunha on the night, correct?---If that’s what it says here but I don’t remember saying that.
But you accept that’s your voice on the audio tape?---Yes.[21] (emphasis added)
[20]Ibid.
[21]Ibid 519.
Section 66 stipulates that “evidence of the representation” may be given by a witness who perceived the representation being made.[22] Even though such a witness will usually testify directly that the maker made the previous representation, the form of the evidence to be given by that witness is not prescribed by s 66.[23] Thus, if a witness who perceived the representation being made gives hearsay evidence of the representation this element of the s 66 exception to the hearsay rule may still be satisfied. But if the evidence of the representation takes the form of hearsay evidence, it must itself meet the requirements of s 66 (or some other exception to the exclusionary hearsay rule) to be admissible.
[22]This limitation is obviously in the interests of reliability. If evidence of the representation could be given by persons who did not perceive the representation being made, but who heard of it second or third hand etc, the risk of misreporting of the previous representation would be increased.
[23]R v Suteski (No 4) NSWSC 218; (2002) 128 A Crim R 275, especially at [34]. In Suteski (No 4), the court was concerned with the application of s 65. Save for the exception to the hearsay rule created by s 65(3), s 65, like s 66, also stipulates that evidence of the previous representation must be given by a person who perceived the representation being made. In Suteski (No 4), the relevant previous representations were made by an accomplice, B, in a record of interview with a police officer, X. Kirby J ruled that, through X, P could tender the recording of the previous representations made by B. In the present case, the recording is not of the previous representation by the maker, MK. It is a recording of a previous representation by W describing the previous representation by the maker, MK. But the point to be taken from Suteski (No 4) is that, like 65, s 66 does not prescribe the form of the evidence of the previous representation to be given by the witness who perceived the representation being made.
For the time being, it is appropriate to maintain the focus on the previous representation by Margaret. I am satisfied that the evidence of Margaret’s representation is to be adduced through a witness who perceived the representation being made (Noelle), albeit Noelle is anticipated to give that evidence in a hearsay form.
Alex submitted that there is a risk of unfair prejudice associated with admitting evidence of the previous representation by Margaret, stemming principally from the fact that neither in Margaret’s statement or evidence at committal does she say that she went into the bungalow or refer to seeing Alex pointing a gun at anyone.[24] Alex also submitted that it is not clear whether the asserted fact in Margaret’s representation was based on what she observed or what she was told.[25]
[24]Third Trial Transcript 509.
[25]Ibid.
In my view, these submissions do not identify a risk of unfair prejudice, that is, a risk of misuse of the evidence or overvaluing of the evidence. Rather, they are directed to the issue of whether it would be open to the jury to accept that she made the previous representation and to infer from the previous representation that she went into the bungalow and actually observed Alex pointing a gun. Even if Margaret gave evidence before a jury denying that she went into the bungalow or observed Alex pointing a gun or made the previous representation attributed to her by Noelle in the Cunha recording, it would be open to the jury to reject her denials. The jury could take the view that she is trying to protect her cousin, Alex.
Megan submitted that there were several ways in which the evidence might be unfairly prejudicial to her. First, the jury might wrongly assume that when Margaret said to Noelle that Alex was pointing the gun at “everyone” in the bungalow, “everyone” included Megan.[26] Second, the jury might think, given that Megan is charged with attempting to pervert the course of justice by interfering with the witness, Tony, that Megan had improperly interfered with Margaret and Noelle — that their memory problems are the result of pressure from Megan.[27] Third, Megan submitted[28] that there was a risk of unfair prejudice because, according to Megan, it is not clear from the previous representation that Margaret was actually in the bungalow when Alex allegedly pointed the gun at everyone — she may have been speaking to the mother by phone, trying to get her up and out of the bungalow.
[26]Ibid 538–41.
[27]Ibid 542.
[28]Ibid 545.
Although the prosecution indicated initially that it would invite the jury to infer from Margaret’s previous representation that Megan must have also observed Alex pointing the gun in the bungalow,[29] the prosecution ultimately resiled from that position. It will not be inviting the jury to conclude that when Alex pointed the gun at “everyone”, that included Megan. The prosecution concedes that, even if Megan was in the bungalow at the time, she may have been in the bathroom at the relevant time and not seen Alex pointing the gun.[30] Given the prosecution’s position, I do not think there is a real risk that if Margaret’s previous representation is admitted that the jury will infer that Megan was included in Margaret’s reference to “everyone.” If requested, I will give the jury a direction against drawing such an inference. Nor do I think there is a real risk that if Margaret gives evidence that she denies (or cannot remember) going into the bungalow, seeing Alex pointing a gun and making the representation to Noelle, that the jury will infer, if it rejects her testimony, that Megan has brought improper pressure to bear on Margaret. In those circumstances, the jury is likely to infer that Margaret’s memory loss or denials are due to her wanting to protect her relatives, not because improper pressure has been applied by one or more of the accused. Again, if requested, I will direct the jury that, if they find that Margaret made the previous representation, it is not alleged, nor are they to infer, that the accused have interfered with anyone other than Tony.
[29]Ibid 511.
[30]Ibid 547.
Accordingly, I find that neither s 137 or the Haddara discretion are engaged.
Previous representation by Noelle to Detective Cunha
Given my view that Margaret’s previous representation comes within the s 66 exception, it is now appropriate to consider whether evidence of that previous representation in the form of Noelle’s previous representation to Detective Cunha also comes within the s 66 exception.
The terms of the previous representation by Noelle have already been set out above at [26]. In short, Noelle said to Detective Cunha:
Margaret was telling me, and Margaret’s trying to get her up and then my brother turned on everyone, so pointing the gun at everyone.
The asserted fact for these purposes is not that Alex was pointing a gun at everyone, but that Margaret said that Alex was pointing a gun at everyone.
The elements of the s 66 exception which are in dispute in relation to this previous representation are whether Noelle had personal knowledge of the asserted fact, whether, as the maker, she will be giving evidence of the previous representation and whether the representation was made by her to indicate the evidence she would be able to give in an Australian proceeding.
The introduction to the previous representation — “Margaret was telling me” — satisfies me that the asserted fact was based on personal knowledge, that is, on Noelle actually hearing Margaret make her previous representation.
If Noelle gives evidence consistent with what she said at the Basha hearing — that is, if she acknowledges that she is the female voice on the Cunha recording and accepts that she made the relevant previous representation to Detective Cunha about what Margaret told her, she will be giving evidence of the representation made by her, even if she states she has no memory of speaking to Margaret on the night or of telling Detective Cunha what Margaret told her. Although the form in which she gives evidence of her previous representation will be indirect, no particular form of evidence is prescribed for evidence of a previous representation, as previously discussed.
Noelle was speaking to Detective Cunha at a time when Alex was still in his bungalow and she was obviously concerned for the safety of her relatives, especially her mother. She confirmed as much at the Basha hearing on 29 April 2016 in examination-in-chief”:
You expressed to Detective Cunha your concerns about your mother?---Yes.
That she is safe. That’s what you are concerned about, correct?---Yeah.
That’s what you are engaging in conversation with Detective Cunha about, correct?---Yes.[31]
[31]Ibid 518.
I am satisfied on the balance of probabilities that her previous representation was made for the purpose of assisting police to resolve a dangerous situation. It was not an informal proof of evidence, whatever may have been Detective Cunha’s purpose in tape recording the conversation.
Alex submitted that there is a risk of unfair prejudice in the fact that Noelle does not say in her statements that Margaret made the previous representation to her.
In my view, this submission does not identify a risk of unfair prejudice, that is, a risk of misuse of the evidence or of giving the evidence more weight than it deserves. Rather, it is directed to the issue of whether it would be open to the jury to accept that Noelle made the previous representation. Even if Noelle gave evidence before a jury denying that she made the previous representation to Detective Cunha, it would be open to the jury to reject her denial.
In my view, neither s 137 or the Haddara discretion are engaged. Accordingly, I rule that evidence of the previous representation by Margaret to Noelle and by Noelle to Detective Cunha may be given (Ruling No. 10).
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