The State of Western Australia v Galbraith
[2019] WADC 120
•26 AUGUST 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GALBRAITH [2019] WADC 120
CORAM: LEVY DCJ
HEARD: 27 MARCH 2019
DELIVERED : 5 JUNE 2019
PUBLISHED : 26 AUGUST 2019
FILE NO/S: IND 1860 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
PAUL BARTLE BLAKE GALBRAITH
Catchwords:
Criminal law - Evidence - Admissibility of deceased complainant's statement - Schedule 3 cl 7 of the Criminal Procedure Act 2004 (WA) - Formalities of written witness statements - Whether unfair to the accused to admit into evidence
Legislation:
Criminal Procedure Act 2004 (WA), sch 3 cl 7
Result:
Application allowed
Representation:
Counsel:
| Applicant | : | Ms S McCallion |
| Accused | : | Mr A Plenderleith |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | Michael Tudori & Associates |
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
He Kaw Teh v The Queen (1985) 157 CLR 523
Hill v The Queen [2003] WASCA 177
Nalberski v The Queen (1989) 44 A Crim R 434
The State of Western Australia v Densley [2018] WADC 41
The State of Western Australia v Garlett [2016] WASC 425
The State of Western Australia v Higgins [2016] WASC 33
LEVY DCJ:
Introduction
Mr Paul Bartle Blake Galbraith (the accused) is charged with two offences allegedly committed against the same person, namely Sebastian Samuel Marra (the complainant), being:
Count 1: With intent to harm, did an act as a result of which bodily harm was caused to Sebastian Samuel Marra (doing an act with intent to harm).[1]
Count 2: Made a threat to unlawfully kill Sebastian Samuel Marra (threat to kill).[2]
[1] Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) s 304(2)(a).
[2] Criminal Code s 338B(a).
Both offences are alleged to have been committed on 8 October 2017 at Mr Marra's home at Tuart Hill.
Mr Marra was found dead on 27 July 2018. Counsel for the accused submits that Mr Galbraith was not involved in Mr Marra's death.[3] The prosecution has not asserted otherwise. Therefore, for the purposes of this application, I will proceed on the basis that Mr Marra's death is unrelated to Mr Galbraith in any way.[4]
[3] Paul Bartle Blake Galbraith, 'Accused's Outline of Submissions in Response to the State's Application to Read Into Evidence a Statement of a Deceased Witness', Submission in The State of Western Australia v Paul Bartle Blake Galbraith PER IND 1860/2018, 27 March 2019 (defence submissions) [37].
[4] The State of Western Australia vHiggins [2016] WASC 33 [18] - [19] (Mitchell J); The State of Western Australia v Garlett [2016] WASC 425 [11] (Allanson J).
The State seeks to read into evidence at the trial of the accused a handwritten statement purportedly made, signed and declared by Mr Marra to be true on 9 October 2017, the day after the alleged offences. I heard the State's application on 27 March 2019. The application is opposed by the accused.
It should be noted that during the hearing of the State's application I was provided with an additional statement that was not available to the accused prior to that time. That statement, which is also handwritten, was apparently made by Katherine Emma Sherwood and was signed and dated on 27 March 2019. It was taken by Detective Senior Constable Jimmy Albert Miller, the same police officer that purportedly took Mr Marra's statement.
Overview of the State's case
The State alleges that, at about 11.00 pm on Sunday 8 October 2017, Mr Marra and his girlfriend Amanda Filipovich went to Unit 1, 324 Hector Street in Tuart Hill. The accused and his girlfriend Katherine Emma Sherwood lived there. The accused was known to Mr Marra. The State alleges that Mr Marra attended the address for the purposes of buying cannabis from the accused.
The accused was not at his home when Mr Marra and Ms Filipovich arrived there. Ms Sherwood opened the door and allowed them to wait in the lounge of the premises until the accused returned. Another man, Brad Robert Blackie, was also in the lounge room. He too waited for the return of the accused but fell asleep on the couch in the lounge room.
The accused eventually arrived home. All those present, save for Mr Blackie who was asleep on a couch in the lounge room, engaged in conversation. It is alleged that at some point the accused retrieved an altered shotgun from somewhere in the house. He had it with him in the lounge room. Mr Marra, who was in close proximity to the accused, then asked if he could look at the shotgun. At that point the accused stood up and, without warning, struck Mr Marra to the right side of his head with the shotgun. On the State's case, there was no obvious or explicable reason for doing so. The blow caused Mr Marra to fall to the ground and bleed from the head.
The State alleges that the accused then discharged the shotgun, shooting Mr Marra in the upper left thigh. This caused Mr Marra's leg to bleed profusely (count 1). The shotgun was discharged when the accused was in close proximity to Mr Marra.
The State alleges that the accused then put the barrel of the shotgun to Mr Marra's head whilst he was still on the ground. Mr Marra pleaded with the accused not to kill him. The State alleges that the accused then told Mr Marra 'don't stress, its salt'.[5] The accused then told Mr Marra to leave and threatened him by saying 'don't call the police or I'll find you and kill you' (count 2).
[5] Statement of Mr Sebastian Marra [60].
Apart from Mr Marra's statement which details all of the above events, the prosecution have also obtained statements from both Mr Blackie and Ms Sherwood who were present at the time. Neither Mr Blackie's evidence nor Ms Sherwood's evidence is anticipated to be of any significant value to the prosecution given that, if they give evidence in accordance with their statements, Mr Blackie was asleep during the critical stages of the incident and Ms Sherwood cannot recall anything of the critical period of time. There are parts of both Mr Blackie's statement and Ms Sherwood's statement that indicate they may be important witnesses for the defence.
The State intends to call Ms Filipovich, Ms Sherwood and Mr Blackie at the trial. Ms Filipovich can say:[6]
[6] Statement of Amanda Filipovich [39] – [85].
•She was in the lounge room with the others.
•The accused was in possession of the firearm and Mr Marra was standing next to him.
•Mr Marra asked if he could look at the shotgun.
•Without warning, the accused stood up and hit Mr Marra to the head with the butt of the shotgun with force.
•Mr Marra fell to the floor.
•The accused then pointed the shotgun at Mr Marra who pleaded for his life.
•At this point she ran from the room and hid, but could clearly see what was happening in the lounge room through the glass sliding door she was standing behind.
•The accused then, from very close range (about 30 cm), pointed the shotgun at Mr Marra's left leg and pulled the trigger.
•She heard the shotgun discharge.
•She re-entered the room and heard the accused say to Mr Marra 'Don't worry about it mate, its rock salt bullets.'
•The accused then 'smacked' Mr Marra 5 to 10 times on the leg where he had been shot.
•Mr Marra pleaded with the accused.
•The accused pointed the shotgun at her and verbally threatened her.
•She helped Mr Marra to his feet and towards the front door of the house. She heard the accused say to Mr Marra 'If you call the dogs I'll kill you and your family.'
•The wound to Mr Marra's leg bled a lot.
•They drove straight to Royal Perth Hospital.
General principles - power to admit the statement of a deceased witness
Clause 7 of sch 3 of the Criminal Procedure Act 2004 (WA) (CPA) allows a court to admit a written witness statement into evidence if:
(a)that witness is dead; and
(b)the court is satisfied that the statement complies with the formalities listed in cl 4.
Even if these pre-conditions are met, a court may refuse to admit a statement if the court is satisfied that the admission of the statement would be unfair to the accused (unfairness test).[7]
[7] CPA sch 3 cl 7(5).
The formalities
Clause 4 of sch 3 of the CPA sets out the conditions with which a written statement must comply before it is admissible in evidence and relevantly includes:
(3)…
(a)the statement identifies the person making it (the maker); and
…
(c)… contains a declaration in accordance with subclause (5); and
(d)the statement purports to be signed by the maker; and
…
(5)A declaration is in accordance with this subclause if it contains words to the following effect —
This statement is true to the best of my knowledge and belief. I have made this statement knowing that, if it is tendered in evidence, I will be guilty of a crime if I have wilfully included in the statement anything that I know to be false or that I do not believe is true.
The unfairness test
The power to admit a statement if it satisfies the formalities in sch 3 of the CPA is discretionary. However, in Birch v The Queen,[8] a case dealing with the predecessor to cl 7, Franklyn J expressed the opinion that it would be an extremely rare case where the discretion to exclude a statement was exercised on grounds of unfairness on the basis that the witness was not able to testify and be cross-examined by the accused person.[9] The subsequent authorities dealing with this issue tend to confirm that opinion. Schedule 3 and its predecessor operate to allow the admission of statements in such circumstances.
[8] Birch v The Queen (1994) 12 WAR 292.
[9] Birch v The Queen(297) (Franklyn J), (293) (Rowland J).
In The State of Western Australia v Higgins (Higgins), Mitchell J helpfully summarised the general propositions which emerge from the relevant authorities on cl 7 or its predecessor provisions to determine when the question of unfairness would lead to the exercise of a court's discretion to exclude a witness statement in these circumstances.[10] These factors are not exhaustive but include:[11]
1.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.[12]
2.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.[13]
3.At this stage of the proceedings, [a trial court] 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 pursue lines of cross-examination to his or her material advantage.[14]
4.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 or contradiction.[15]
5.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.[16] 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.[17]
[10] Daniels v The State of Western Australia [2010] WASCA 200 (Daniels); Chaudhry v The Queen[2007] WASCA 37 (Chaudhry) [44] - [45]; Galea v The Queen(1989) 1 WAR 450 (Galea).
[11] Higgins [17].
[12] Daniels [7].
[13] Chaudhry [44] – [45]; Daniels [63] – [64].
[14] Daniels [8] - [11]; Galea(459 - 460).
[15] Daniels [11]; Chaudhry [42].
[16] Daniels [12], [61] - [62]; Chaudhry [36] - [40]; Galea(460).
[17] Daniels [62]; Chaudhry [36].
Justice Mitchell in Higginsalso said that where the statement contains the only 'evidence of critical elements of the charged offence [it] is a factor counting against its admission.'[18] However, this is just one factor relevant to admissibility. In The State of Western Australia v Garlett (Garlett)[19] which was heard soon after Higgins, Allanson J held 'that the fact the statement is the only evidence of a particular factual element does not necessarily makes its admission unfair.'[20] In any event, for the reasons explained below, Mr Marra's statement is not the only evidence of the critical elements of the offences brought against the accused in this case.
[18] Higgins [45].
[19] Garlett [15] (Allanson J).
[20] Garlett [15] (Allanson J).
In Higgins, Mitchell J explained that the witness statement was excluded on the basis that its admission would be unfair to the accused because of a combination of factors, namely that:
The statement [was] the only evidence of a number of elements of the offence, and the accused [had] identified a line of cross-examination which he would have undertaken in relation to one of those elements and from which he had a real prospect of obtaining a material forensic advantage including a chance of acquittal.[21]
(emphasis added)
[21] Higgins [65].
State's submissions
The State's submissions are limited to the assertions that the statement complies with the required formalities, is 'highly relevant', forming 'an essential part of the State case' and that 'any prejudice arising from the admission of Mr Marra's statement can be overcome by directions to the jury at both the time that the statement is read, and during the charge.'[22]
[22] State submissions [19] - [20].
The accused's submissions
Counsel for the accused submits that I should refuse the State's application for two reasons. First, the court's discretion to read in the statement has not been enlivened as Mr Marra's statement does not satisfy the formalities required. Secondly, even if the formalities have been met, it would be unfair to the accused to admit the statement. The accused draws heavily on the reasons of Mitchell J in Higgins and submits that they are applicable to his case, namely:
1.Mr Marra's statement is the only evidence of at least one element of count 1 (doing an act with intent to harm).
2.There are multiple lines of cross-examination which he would have undertaken in relation to one of those elements.
3.The inability to cross-examine Mr Marra has deprived him of a real prospect of obtaining a material forensic advantage, including a chance of acquittal.
Have the formalities been complied with?
Clause 4(3)(a): does the statement identify the maker?
The first argument advanced by the accused is that the statement does not sufficiently identify the person making it.
It should be noted that two days before the hearing, Detective Miller made a statement setting out the circumstances in which he says he came to take Mr Marra's statement. In summary, in that statement Detective Miller says that at about 3.00 pm on 9 October 2017 he attended at Royal Perth Hospital where he met Mr Marra. He explained the process of the police investigation and then proceeded to obtain Mr Marra's account of events relevant to the investigation. He did this by taking notes, following which he then prepared a handwritten statement. This was undertaken whilst he was still with Mr Marra in his hospital room. This enabled him to clarify any issue as he prepared the statement.
Once he had completed the handwritten statement, which runs for 10 pages, he handed it to Mr Marra to read and identify any areas that may have needed further expansion, explanation or clarification. Mr Marra said that he was happy with the statement and that it was a true representation of the incident. The document was then handed back to Detective Miller who added a sticker to the end of the statement which contains a declaration. Detective Miller explained that it was his practice to apply a 'declaration sticker' to a statement when he took a handwritten statement.
He then handed the statement back to Mr Marra and asked him to sign and date the bottom of each page of the statement. Mr Marra did this. When Mr Marra reached the final page containing the declaration sticker, Detective Miller asked him to read the declaration contained on the sticker and to again sign and date it, as well as recording the time he did so. Mr Marra complied.
The statement was then handed back to Detective Miller who also signed the bottom left corner of each page. Upon reaching the final page, Detective Miller noticed Mr Marra's signature did not touch the declaration sticker. It was Detective Miller's practice to ensure that the signature of the maker of the statement touched or was made upon the sticker to record that the declaration was on the document at the time of making the statement and not applied later. Consequently, he asked Mr Marra to re-sign the last page, this time over the sticker. Mr Marra complied.
Counsel for the accused declined to cross-examine Detective Miller at the hearing.
Notwithstanding the evidence of Detective Miller relating to Mr Marra being the maker of the statement, it is clear from the words of sch 3 cl 4(3)(a) of the CPA that the statement itself (as opposed to some other mechanism or evidence) must identify the maker. In that regard I note the following features of the statement:
•Each page is headed 'Sebastian Samuel Marra'.
•Paragraph 1 identifies his age (30 years old).
•Each page bears the signature of 'S Marra'.
•Paragraph 3 identifies the maker's mother to be Oltensia Marra.
•Paragraph 4 identifies the maker's girlfriend to be Amanda (the brief contains a statement of Amanda Filipovich who states that her boyfriend was Sebastian Samuel Marra).[23]
•The statement is written in the first person and details the events he was involved in, the injury that he suffered, and his attendance and treatment at Royal Perth Hospital.
[23] The State of Western Australia, 'Brief for Trial', The State of Western Australia v Paul Bartle Blake Galbraith [11].
When the above features are considered in combination they overwhelmingly lead to the conclusion that the statement as a whole identifies the maker of it to be Sebastian Samuel Marra.
Clause 4(3)(c): Does the statement purport to be signed by the maker?
The accused submits that the court cannot be satisfied that the handwritten signature 'S Marra' leads to the conclusion that the document was signed by the maker, being Mr Marra.
There are no less than 11 places on the statement bearing the signature 'S Marra' (once on each of the first 9 pages and twice on the last). I also note the evidence of Detective Miller about witnessing Mr Marra sign the document. On the available evidence, no other conclusion is available but that the statement was signed by Mr Marra as the maker of the statement.
Does the statement bear a declaration which is in accordance with sch 3 cl 4(5) of the CPA – the effect on the admissibility of a statement if the declaration was not on the document at the time that the statement was taken or first signed?
Counsel for the accused submits that the declaration was not on the document when the statement was made. Counsel submits that the purpose of incorporating the declaration into the witness statement is to ensure that the maker knows that they are making a statement and that there are consequences for making a false or misleading statement. Thus, the accused submits that adding a sticker with a declaration to the statement after the contents of the statement have been taken does not comply with the relevant sub-clause. Counsel for the accused submits that the declaration must be a part of the statement before the statement is signed by the maker, and the circumstances that occurred relating to the signing of the declaration (outlined above) are not sufficient to comply with the legislation.
Quite obviously, a declaration cannot be made by the maker until the statement has been made. There is no requirement that the declaration be on the document before it is read over or even before any signature of the maker appears on the document. The purpose of the declaration is twofold. First, by making the declaration the maker is attesting to the truth of the statement to the best of their knowledge and belief.Second, the maker is declaring that he or she understands that, if the statement is tendered in evidence, they will be guilty of a crime if they have willfully included in the statement anything that they know to be false or that they do not believe is true.
Detective Miller placed a sticker containing the precise words used in sch 3 cl 4(5) of the CPA on the statement after Mr Marra had read over the statement and indicated to him that it was true and correct. There is no doubt that the sticker contained words which were to the 'effect' required by sub-clause 5.
The circumstances in which the declaration was made complies with the provisions of sch 3 cl 4 of the CPA.
Applying the unfairness test
Elements of the State's case
The question of unfairness must be considered in light of the facts that the State must prove to establish the elements of the relevant offence.[24] There is obviously an element of artificiality in determining the application at this stage because the evidence which will be led at trial does not always reflect and is not always contained in witness statements.[25] Despite this artificiality, the anticipated evidence must be evaluated in order to make a finding, at least to the extent of determining who can attest to which elements of the charge.
[24] Higgins [23].
[25] The State of Western Australia v Densley [2018] WADC 41 [9] (Stevenson DCJ); Higgins [58].
The elements to be proved by the State beyond reasonable doubt in relation to count 1, doing an act with intent to harm, are:
1.that the offender was the accused;
2.that the accused did an act;
3.that the act caused bodily harm; and
4.that when the accused did the act he did so with intent to harm.
The elements to be proved by the State beyond reasonable doubt in relation to count 2, the threat to kill, are:
1.that the offender was the accused;
2.that the accused made a threat;
3.that the threat was a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to kill; and
4.that the threatened killing was unlawful, i.e., was contrary to law and not authorised, justified or excused.
Counsel for the accused concedes that there is independent evidence that is capable of proving all of the elements of count 2 on the indictment, namely the threat to kill charge.[26]
[26] Defence submissions [57].
In relation to count 1, the charge of doing an act with intent to harm, the accused concedes that there is other evidence that is available to the State which could independently prove the first three elements beyond reasonable doubt. However, the accused submits that the only available evidence in relation to the fourth element, namely proof that the accused intended to cause harm, is that contained in Mr Marra's statement.[27] Being an element that must be proved beyond reasonable doubt, it is obviously critical to the State's case.
[27] Defence submissions [33], [46].
Section 304(3) of the Criminal Code defines an intent to harm to mean 'an intent to … unlawfully cause bodily harm to any person'. Proof beyond reasonable doubt of this fourth element incorporates two discrete aspects, namely to cause harm with intent, and to do so unlawfully. In that sense, defences such as self-defence, accident and necessity are potentially available to the accused. The prosecution would be required to negative any defence raised beyond reasonable doubt.
In relation to this fourth element, counsel for the accused submits that Mr Marra's evidence is the only evidence going to both 'the unlawfulness of the act 'and 'the intent to cause bodily harm' being part of the elements of doing an act with intent to harm.[28] In addition, the accused submits that he will effectively be denied the ability to properly raise the defence of self-defence by having the statement tendered and not being able to cross-examine Mr Marra.
[28] Defence submissions [61].
In my view, for the reasons given below, not only is Mr Marra's statement not the only evidence available going to this fourth element, but the accused will not be deprived of an opportunity to raise self‑defence.
Fourth element – intent to harm
So far as proof of an accused's intent to cause bodily harm is concerned, namely his state of mind, that aspect of the fourth element can only be proved inferentially. Nothing contained within Mr Marra's statement could directly prove this aspect of the element. Furthermore, based upon the evidence that Ms Filipovich is anticipated to give at trial, it would be open for the jury to infer, in light of all of the surrounding circumstances described by her, including pointing the shotgun at Mr Marra and then discharging it from a distance of about 30cm from his leg, that the accused did intend to cause harm to Mr Marra. Consequently, I am satisfied that Mr Marra's statement is not the only evidence available to the prosecution relevant to prove this aspect of the fourth element of count 1.
In any event, it is difficult to see in the circumstances of this case how, if the accused were to run an argument based upon self-defence and the necessity to discharge the firearm, that he could not have had an intention to harm Mr Marra.
Fourth element - unlawfully causing bodily harm
The accused also submits that Mr Marra's statement is the only evidence relevant to the unlawfulness of the acts and no other witness is able to give evidence on that aspect of this element because 'one of the witnesses [Mr Blackie] was asleep and the other witness [Ms Filipovich] was out of the room and could only see inside.'[29] This submission seems to suggest that various issues relevant to self‑defence can only be raised through Mr Marra. The accused has outlined multiple lines of cross-examination that would have been put to the complainant, such as that Mr Marra possessed a knife on the night of the incident, and his use, or threatened use of that knife required the discharge of the gun in self-defence. Whether unfairness arises from the inability to ask Mr Marra these questions depends on whether the evidence can be tested by another witness.
[29] Defence submissions [45].
However, I do not accept the submission that it is only through the cross-examination of Mr Marra that these issues could be raised. Nor do I accept that it is only Mr Marra who could have given relevant evidence on this issue going to the element of unlawfulness.[30] Ms Filipovich will be available to be cross-examined on this issue. Both the accused and Mr Marra were, but for the short time when she ran out of the room, in her sight for the duration of the incident. Importantly, she only ran out of the room after the accused is alleged to have hit Mr Marra with the butt of the shotgun and pointed it at him while he was begging for his life.[31] She also had a clear view of Mr Marra before he was allegedly, shot.[32] Ms Filipovich should be able to attest to any facts which may give rise to self-defence.
[30] Defence submissions [67].
[31] Statement of Amanda Filipovich [50] - [53].
[32] Statement of Amanda Filipovich [55] - [58].
Additionally, Ms Sherwood could also give evidence on whether or not she saw the complainant with a knife. Her written statement suggests she will not be able to give any direct evidence of the alleged offence, but she could give evidence as to surrounding facts, including if she saw Mr Marra with a knife, or whether Mr Marra had the ability to conceal a knife as he came into the house.
The accused only has an evidential onus to raise self-defence. Once properly raised, the burden is on the State to negative the defence by excluding at least one of its elements beyond a reasonable doubt. An accused does not need to testify in order to raise such a defence. The evidentiary burden of raising the defence may occur based upon the prosecution case.[33]
[33] He Kaw Teh v The Queen (1985) 157 CLR 523, 592.
The accused's circumstances are markedly different to the facts in Higgins. Higgins involved a charge of armed robbery. In that case it was alleged that the accused stole a motor vehicle, with violence, and pretended to be armed with a dangerous weapon, namely a gun, and did bodily harm to the complainant. In that case, the only evidence going to the elements were from the complainant and a nearby resident. The deceased complainant's statement was the only evidence with respect to several elements.
Even if Ms Filipovich is not able to give evidence on a portion of the incident, this alone would not justify the exclusion of Mr Marra's statement. There are numerous authorities where witness statements were admitted into evidence, despite being the only evidence of an element of the charge.[34]
[34] Birch v The Queen; Garlett; Galea v The Queen; Nalberski v The Queen (1989) 44 A Crim R 434.
Whilst Mr Marra's evidence is important, contrary to the State's submission, I do not think it is essential to proving count 1. Even without Mr Marra's statement, it could be open to the jury to convict the accused on count 1 based upon Ms Filipovich's evidence alone. This supports its admission.[35]
[35] Daniels [8] (McLure P).
Further issues going to the question of 'unfairness'
Witness credibility
The accused also raises a further issue, namely the inability to cross‑examine the complainant as to credit. In particular, counsel for the accused submits that he has now lost the opportunity to put various inconsistencies between his account and that of other witnesses, and to raise with him matters that would potentially demonstrate that he was of bad character.
Inconsistencies between Mr Marra's statement and the evidence of other witnesses
Inconsistency between Mr Marra's account and that of other witnesses on elements of the charge is a factor against admission,[36] but much of the proposed cross-examination would not have been directly relevant to the fourth element, or any other element. The inconsistencies which have been raised can be put to other witnesses, for example:
1.The inconsistencies between the statements of Mr Marra and Mr Blackie, such as the door the complainant entered through and the time Mr Blackie entered, can be raised with Ms Filipovich and Mr Blackie.
2.The inconsistencies between Mr Marra and Ms Filipovich on the timeline of the alleged offence can be put to Ms Filipovich.
3.The inconsistencies between Mr Marra's statements can be put to Detective Miller. As in Daniels, the police officer could be questioned 'about matters relevant to the credibility and reliability of [the deceased's] statement'.[37]
Mr Marra's credibility – bad character
[36] Higgins [39].
[37] Daniels [8] (McLure P).
Counsel for the accused submits that the inability to cross-examine Mr Marra on his character will result in unfairness. These questions would have explored, amongst other things, Mr Marra's:
(a)drug dealing, including on the night of the incident;
(b)relationship with the accused;
(c)'real purpose' in going to the accused's house; and
(e)violent behaviour.
In my view, many, if not all of these issues can be raised and addressed through the evidence of other witnesses proposed to be called at trial. Furthermore, the complainant's inability to refute any allegations raised may be to the accused's advantage.[38] If the accused elects to give evidence which damages Mr Marra's character, he may be 'able to give evidence concerning or affecting [the deceased] without fear of contradiction'.[39]
Unfairness – the unreliability of the statement
[38] Hill v The Queen [2003] WASCA 177 [82].
[39] Daniels [11] (McLure P), [65] (Mazza J).
The accused submits that the complainant's statement is not credible because it omits key facts. This does not necessarily make its admission unfair. In Galea v The Queen the,
statement was lacking in the detail which could possibly have made it difficult for the appellant to overcome. Nonetheless it was obviously of significant probative value. Counsel for the defence, however, made use of the lack of detail in the statement to his advantage and made the necessary points in his closing address perhaps better than he could have made them in cross‑examination.[40]
[40] Galea v The Queen (459 - 460).
On Mr Marra's version, the accused’s violence and threat was inexplicable. Again, if the accused raised the issue of self‑defence through another witness, the complainant's silence on the issue may be a factor going to the accused's forensic advantage.
In Daniels, the deceased statement was the sole source of direct evidence against the appellant,[41] but was given as part of co-operation with the police. The appellant submitted that it was unfair to admit the statement due to 'its inherent unreliability' resulting from his co‑operation with the police. In DanielsMazza JA acknowledged the risk of accepting accomplice evidence and evidence which could not be tested in cross-examination. Nonetheless, Mazza JA found that the direction given by the trial judge was as favourable to the appellant as it could have been, and was sufficient to overcome any unfairness.[42]
Unfairness - admitting the statement would compel the accused to give evidence at trial
[41] Daniels [8].
[42] Daniels [51] - [56], [66].
Counsel for the accused also submits that because the accused was not properly questioned by police and exercised his right to silence in relation to key questions, his only means of challenging the statement would be to forgo his right to silence at trial.[43]
[43] Defence submission [78] - [82].
For the reasons elaborated upon above, I do not accept that the admission of the statement would compel the accused to give evidence at trial. I have already noted that there are other avenues available to the accused by which he could not only challenge the complainant's statement, but also raise self-defence.
Even if the accused was required to give evidence to put his account of events before the jury, the authorities are unclear on the relevance of this issue. In Higgins, Mitchell J saw this as a factor against admission.[44] In Garlett, Allanson J found this 'is likely to be relevant to the forensic decision whether to call the accused', but, was not 'a relevant unfairness' given that the 'same decision would have had to be made were [the deceased] able to testify in person.'[45]
Inadmissible paragraphs
[44] Higgins [56].
[45] Garlett [16] (Allanson J).
There is nothing which requires the whole of the statement to be admissible for it to be read into evidence under sch 3. As with other admissible evidence, provided that no unfairness arises from severing inadmissible paragraphs, the statement can be admitted in part.[46] I note however, that I have not been called upon to rule on any specific parts of the statement.
Download of the complainant's phone
[46] Garlett [19].
In addition, I am aware of a body of material that the accused may seek to rely upon that has come from a download of the complainant's mobile phone. I have not been called upon to rule on the admissibility of this material. However, for the purpose of these reasons I will assume that the prosecution will not, in the circumstances of this case, take a position that would unreasonably deny the accused the opportunity to rely upon this material.
Conclusion
I am satisfied that the statement of Sebastian Samuel Marra satisfies all of the preconditions for admission into evidence pursuant to sch 3 of the CPA. I am not satisfied that any prejudice that may arise from its admission could not be cured by an appropriate direction to the jury. Consequently, I am not satisfied that it would be unfair to the accused to allow the prosecution to admit the statement into evidence.
The statement of Sebastian Samuel Marra may be adduced in evidence at the trial of the accused.
Finally, these reasons are based upon the anticipated evidence set out in the written witness statements currently available. Arguably, it would be open for the application to be reconsidered during the trial if the evidence which is led meant the required direction is insufficient to overcome any unfairness to the accused.[47]
[47] Densley [10] (Stevenson DCJ).
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy22 AUGUST 2019
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