The State of Western Australia v Abbott

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ABBOTT [2021] WADC 43
CORAM:   PRIOR DCJ
HEARD:   27 APRIL 2021
DELIVERED          :   19 MAY 2021
FILE NO/S:   IND 707 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
KIARA JADE ABBOTT
JAMES PETER GOWANS
HANNAH ELIZABETH ORELLANA
GEOFFREY JOHN WILLIAMS

Catchwords:

Criminal law and procedure - Evidence - Statement of deceased witness application pursuant to sch 3 cl 7 of Criminal Procedure Act 2004 (WA)

Legislation:

Criminal Procedure Act 2004 (WA), s 158, sch 3 cl 7(1)(a)

Result:

Application refused

Representation:

Counsel:

The State of Western Australia	:	Ms S J Bowman
First Accused	:	Ms K A Dowling
Second Accused	:	Mr S F Rafferty
Third Accused	:	Mr A D Plenderleith
Fourth Accused	:	Ms M L Cox

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
First Accused	:	Curt Hofmann & Co
Second Accused	:	Seamus Rafferty Barristers & Solicitors
Third Accused	:	Michael Tudori & Associates
Fourth Accused	:	Elizabeth Needham

Case(s) referred to in decision(s):

Birch v The Queen (1994) 12 WAR 292
Chaudhry v The Queen [2007] WASCA 37
Daniels v The State of Western Australia [2010] WASCA 200
Galea v The Queen (1989) 1 WAR 450
Hill v The Queen [2003] WASCA 177
The State of Western Australia v Higgins [2016] WASC 33

PRIOR DCJ:

Background

Geoffrey John Williams, Hannah Elizabeth Orellana, Peter James Gowans and Kiara Jade Abbott (the Accused) are charged on indictment 707 of 2020 with one count of armed robbery in company and one count of grievous bodily harm.
The indictment is presently listed for a seven day trial in the District Court at Perth to commence on 27 May 2021.
The complainant in both counts on the indictment is PRM.

The State case

The facts as alleged by the State are outlined in the amended statement of material facts dated 27 May 2020.
In summary the State's case is PRM contacted one or both of the two female accused by mobile telephone on 29 May 2019 to pay for them to engage in a three person sexual activity with him after seeing an advertisement on a website.
It was ultimately agreed PRM would meet up with the two female accused outside the apartments at 36 Mount Street, Perth. After the three of them met up, eventually all three of them went upstairs into an apartment at 36 Mount Street, Perth. Once they were inside the apartment there was a discussion about PRM paying cash before any sexual activity would occur.
After a knock at the door, Ms Abbott opened the door to the apartment. The lights went off. Mr Williams and Mr Gowans then entered the apartment. The two male accused then threatened, assaulted and robbed PRM. They stole his money, wallet, mobile telephone and car keys. Mr Williams was armed with a tomahawk and hit PRM in the shin. Mr Gowans had a torch. The two female accused left the apartment before or during the assault and robbery of PRM by the two male accused.
Both male accused then left the apartment. PRM thereafter left the apartment and was not able to walk properly due to the injury he sustained to his leg in the attack on him in the apartment.
PRM's 2007 Silver SE Commodore was stolen from outside the front of the Mount Street apartments.
On 3 June 2019, PRM received treatment for a fracture to his leg. This injury constitutes the injury amounting to grievous bodily harm - count 2 on the indictment.
The police found PRM's SE Commodore in White Gum Valley on 5 June 2019. There was a tomahawk inside the vehicle.
On 28 June 2019 police searched an orange Ranger utility motor vehicle owned by Mr Williams. A tomahawk was found in this vehicle.
Each of the four accused participated in records of interview with police officers in June or July 2019.
Ms Abbott made no admissions.
Ms Orellana admitted to being one of the two females involved with PRM. She said Ms Abbott got money from PRM when they first entered the apartment. She admitted that the two male accused entered the apartment. She said she left the apartment immediately with Ms Abbott. She asked Ms Abbott what was happening. She did not admit participating in either offence in any capacity.
Mr Williams admitted dropping both female accused off at the Mount Street apartments to do 'a sex job'. He identified himself and the two female accused in CCTV footage photos shown to him by the police officers. He admitted owning an orange coloured Ranger Utility.
Mr Williams said he and the other man went up into the apartment because he received a message that the two female accused were being harassed. He heard the other man and PRM having a tussle in the apartment. The other man was punching him. There was no axe or hatchet.
Mr Gowans admitted being in the apartment when the other male was assaulting PRM. He claimed he only went to the apartment to 'get drugs and money and just walk out'. He grabbed what he could and ran. He grabbed a brown bag.
None of the four accused admit assaulting or robbing PRM. None of them gave any significant detail of what happened in the apartment in their records of interview.
The State will rely on CCTV footage identifying each accused and PRM outside the Mount Street apartments or in the apartment complex. There is no CCTV footage inside the relevant apartment where it is alleged offences took place. The only State eye witness as to what happened inside the apartment is PRM.
On 30 May 2019, PRM signed a six page statement containing his evidence in relation to both counts on indictment 707 of 2020.
On 19 June 2019, PRM signed a further 11 page statement in relation to the matters on indictment 707 of 2020.
On 5 March 2021, PRM was declared deceased at an address in Western Australia. The cause of his death is the subject of a coronial investigation. It is not suggested by the State that the death of PRM is related in any way to the behaviour of the accused persons.

Criminal responsibility of each accused

The State identified the basis of criminal liability in respect of each of Mr Williams and Mr Gowans for counts 1 and 2, is they are principal offenders who were acting in cohort to commit the offences. The liability therefore arises by virtue of s 7(a) of the Criminal Code.
The State identified the basis of criminal liability in respect of each of Ms Orellana and Ms Abbott for counts 1 and 2 as they each did acts which aided or enabled the two male co-accused to commit the offences. In particular, that they lured the complainant to the apartment and let the two male co-accused in, knowing that the two male co‑accused intended to assault and steal from the complainant. The liability therefore arises by virtue of s 7(b) of the Criminal Code.
In respect of count 2, the State also identified an alternative basis of liability in respect of each of Ms Orellana and Ms Abbott as being pursuant to s 8 of the Criminal Code.

The State's application

By application dated 30 March 2021, the State applies to read into evidence the two written statements of the deceased complainant, Paul Raymond McKenna pursuant to s 158 and sch 3 cl 7(1)(a) of the Criminal Procedure Act 2004 (WA) (CPA).
All four accused oppose the State's application.
At the hearing on 27 April 2021 and in their written submissions, some of the accused submitted that both of PRM's statements contained inadmissible material. I advised the issue as to inadmissible evidence in the statements could be ruled on, if necessary, after the State's application had been dealt with.

Relevant law

Section 158 and sch 3 cl 7 of the CPA confers discretion on a judicial officer to allow the reading into evidence of a witness statement at trial if any of the listed pre-requisites are satisfied. The list includes the witness is dead. Conditions which must be complied with, in order for the statement to be admissible, are set out in sch 3 cl 4(3). The relevant conditions for this application are (a), (c) and (d). The statement must also contain a declaration in words to the effect described in sch 3 cl 4(5).
Even if all the pre-conditions are met pursuant sch 3 cl 7(5), the court has a discretion to exclude the statement 'if the court is satisfied that the admission of the statement would be unfair to the accused. [unfairness test]'.
The proper construction of cl 7 of sch 3 of the CPA, or its predecessor were considered in Chaudhry v The Queen [2007] WASCA 37 and Daniels v The State of Western Australia [2010] WASCA 200; Birch v The Queen(1994) 12 WAR 292; Galea v The Queen (1989) 1 WAR 450; Hill v The Queen [2003] WASCA 177.

Admissibility of deceased's statement in present case

PRM's two statements comply with the statutory requirements of sch 3 cl 4(3)(a), cl 4(c), cl 4(d) and cl 5 in that they:
(a)bear his name, and therefore identifies him as the maker;
(b)contain the required declaration;[1]
(c)the statement dated on 30 May 2019 purports to be signed by PRM and was witnessed by Constable Green at Mirrabooka on 30 May 2019; and
(d)the statement dated 19 June 2019 purports to be signed by PRM and was witnessed by First Class Constable Summersby at Mirrabooka on 19 June 2019.
[1] Statement of Naomi Jane Maskiell brief page 1- 12 [124].
The above, coupled with the fact that PRM is now deceased, satisfies the statutory conditions for the admission of the evidence of PRM's two statements.
All four accused accept the statutory conditions are met in relation to both statements made by PRM.
The evidence of PRM is clearly relevant to both charges on the indictment as PRM was the complainant of the alleged offending.
In circumstances where the evidence is clearly relevant, the only issue is whether the admission of the statement would be unfair to the accused.

Unfairness test

The purpose of the relevant legislative provisions is to allow for the statement of a deceased witness to be admitted into evidence even though the witness cannot be cross-examined.
By the enactment of sch 3 cl 7(5), the legislature recognised there may be circumstances where a witness statement, meeting the criteria for admissibility in sch 3 cl 7(1), should nevertheless be excluded. The requirement for exclusion is unfairness to the party. In the present case, the 'party' are the accused.[2]
[2] Daniels v The State of Western Australia [59] (Mazza J).
Whilst the contents of such a statement are likely to be inherently prejudicial to an accused person because it disadvantages him or her and/or implicates him or her in the offence charged, the mere existence of such prejudice cannot determine whether or not the statement is excluded.[3]
[3] Chaudhry v The Queen [44] (Miller AJA), citing Hill v The Queen [2003] WASCA 177 [82], (McLure J).
The prejudice or unfairness to which cl 7(5) directs attention is that flowing from the fact that the jury is deprived of the opportunity of seeing and hearing the witness give evidence-in-chief and in cross‑examination at trial.[4]
[4] Daniels [7] (McLure P).
The test is whether any unfairness occasioned by reason of the fact that the witness is not to be called can be negated by directions given by the trial judge.[5]
[5] Chaudhry [36] (Miller AJA), cited with approval in Daniels [61] - [62] (Mazza J).
Such directions would make it clear that the weight the jury could give to the evidence was affected by the inability of the defence to test the credibility and reliability of the witness under cross-examination as was the case in Daniels.[6] Directions to this effect may be given at the time that the statement is read to the jury, as well as in summing up.[7]
[6] Daniels [51] - 53].
[7] Chaudhry [37], [38] (Miller AJA); Daniels [12] per McLure P; [51] - [54] (Mazza J).
In The State of Western Australia v Higgins[8] his Honour Mitchell J (as he then was) summarised the relevant considerations for the determination of the question of unfairness arising from the relevant authorities. These considerations are not exhaustive but include:
(a)The unfairness to which cl 7(5) directs attention is that flowing from the fact that the jury is deprived of the opportunity of seeing and hearing the witness give his or her evidence-in-chief and in cross-examination at trial: Daniels [7].
(b)The fact that the statement concerns a central rather than a peripheral issue, and is extremely prejudicial to an accused because of its tendency to show that he or she committed the charged offence, is a factor in favour of the admission of the statement rather than its exclusion: Chaudhry v The Queen [2007] WASCA 37 [44] - 45; Daniels [63] - [64].
(c)At this stage of the proceedings (at trial court), I must consider the practical unfairness which would arise from the absence of the witness, given the likely course of the trial. Matters to be considered include whether there are other means of challenging the witness' evidence, and whether the accused is unable to purwill sue lines of cross-examination to his or her material advantage: Daniels [8] - [11]; Galea v The Queen (1989) 1 WAR 450, 459 - 460.
(d)In assessing unfairness, it will be relevant to note the opportunity which may be presented to the accused to give evidence concerning or affecting the absent witness without fear of contradiction: Daniels [11]; Chaudhry [42].
(e)The question of unfairness is also to be assessed in a context where the jury will be directed as to the need to treat evidence which cannot be the subject of cross-examination with caution: Daniels [12], [61] - [62]; Chaudhry [36] - [40]; Galea (460). It is necessary to consider whether unfairness occasioned by the fact that the witness is not called can be negatived by directions given by the trial judge: Daniels [62]; Chaudhry [36].[9]
[8] The State of Western Australia v Higgins [2016] WASC 33 (Higgins).
[9] Chaudhry [17].
Mitchell J in Higgins also said that where the statement contains the only evidence of critical elements of the charged offence [it] is a factor counting against its admission.[10]
[10] Higgins [45].
As noted by Mitchell J in Higgins, the question of unfairness cannot be considered in isolation from the matters that the State must prove to establish the elements of the offences charged.[11]
[11] Higgins [23].

Analysis

The State accepts that PRM's statement is the only evidence of two elements of the offence charged in count 1 and two elements of the offence charged in count 2. In relation to count 1 - the armed robbery offence, PRM's statement is the only evidence the male accused were armed and acts of violence were inflicted on him whilst they were acting in concert. In relation to count 2 - the grievous bodily harm offence, PRM's statement is the only evidence of the male accused doing the acts which caused him grievous bodily harm and they were acting in concert.
PRM's statements concern central and not peripheral issues as to what happened when the accused were inside the apartment with him. All elements of a criminal charge must be proved by the State beyond reasonable doubt.
The submissions from each accused's counsel, coupled with what is contained in each accused's record of interview, indicate it is highly likely that the defences of each accused will involve what is often described as 'a cut throat defence'.
The inability to cross‑examine PRM will deprive each of the four accused of the ability to cross‑examine him about what each person did to PRM in the apartment, when things were done to PRM in the apartment and who was present in the apartment when things occurred. These lines of cross‑examination are directly relevant to whether either male accused was acting in concert with each other and whether the female accused were aiding the male accused or engaged in a common purpose to commit an offence.
Each accused will not have the opportunity of putting to PRM an alternative version of events that directly relates to their participation and responsibility as to what occurred inside the apartment when PRM was present. This may give rise to reasonable doubt as to some of the elements of each offence charged against each accused.
What PRM describes in his statements occurred in a stressful situation and part of what occurred was when the lights in the apartment were off. PRM states that the whole incident in the apartment went for approximately 90 seconds, but felt like longer. What he said in his statements may not be entirely accurate. A number of times in his statements PRM says he cannot remember some details. In the statements PRM is unable to consistently identify which of the two males in the apartment did what. He describes them as 'the males' or 'they'. He is unable to clearly identify who hit him or with what. PRM does not identify at what stage the females left the apartment.
It cannot be assumed that PRM would give the same level of detail that is in his statement if he was to be cross‑examined at trial by the four accused's counsel.
The authorities relied upon by the parties are distinguishable to this case as each authority only relates to a single accused where there was no prospect of 'a cut throat defence'.
Each accused cannot compel the other co-accused to give evidence in the trial. The records of interview of each accused say nothing or very little about what occurred in the apartment. PRM may have been the only witness who could confirm each accused's version of what they did in the apartment and how long they were in the apartment for.
This is not a case where each accused could give evidence about what occurred in the apartment without fear of contradiction. If a co-accused was to give evidence, they may be contradicted. PRM may have given support for their version.
Each accused also submits that the inability to cross‑examine PRM as to his credit and inconsistencies between the two statements PRM has made would give rise to unfairness. It is further submitted it may be put to PRM he has told deliberate lies about what happened in the apartment or he is mistaken about what happened.
My examination of PRM's two witness statements indicates there are inconsistencies in his description of events as to what happened inside the apartment. His descriptions of the two male offenders differs from the first statement to the second. PRM gives more detail of what happened in the apartment in the second statement. I do not consider these inconsistencies minor in nature, when what each accused did in the apartment will be central to attributing criminal responsibility to each of them.
I do not consider the ability to cross-examine the police officers who took PRM's statements would adequately reduce any unfairness relating to the credibility and reliability of PRM's evidence given its significance to what actually occurred in the apartment.
The inability to cross‑examine PRM in the various areas I have identified will deprive each of the four accused of the real prospect of obtaining a material advantage, including a chance of acquittal of either charge.
I am satisfied that the level of unfairness to each of the four accused which is occasioned by reason of the fact that PRM cannot be called as a witness cannot be negated by directions given by the trial judge to the jury if PRM's statements were read to them.
The State's application dated 30 March 2021 to read into evidence the deceased PRM's two written statements is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
19 MAY 2021

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established