The State of Western Australia v Higgins
[2016] WASC 33
•8 FEBRUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HIGGINS [2016] WASC 33
CORAM: MITCHELL J
HEARD: 4 FEBRUARY 2016
DELIVERED : 8 FEBRUARY 2016
FILE NO/S: INS 85 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
KURTIS ANDREW HIGGINS
Accused
Catchwords:
Criminal law - Application to admit written statement of prosecution witness into evidence - Where there is no suggestion that the accused contributed to witness' unavailability - Where witness has died - Where statement is the only evidence of elements of charged offence - Whether admission of statement unfair to the accused
Legislation:
Criminal Procedure Act 2004 (WA), sch 3 cl 7
Result:
Statement not admitted into evidence
Category: B
Representation:
Counsel:
Prosecution : Mr I L K Marshall
Accused: Mr I D Hope
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Ian Hope
Case(s) referred to in judgment(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
R v Slater [2003] WASC 171
The State of Western Australia v Muller [2015] WASC 199
MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)
Summary
Last Thursday I heard the State's applications for orders that it be permitted to rely on certain evidence in the trial listed to commence today. I gave reasons for refusing the application to rely on evidence relating to the accused's presence at a pharmacy in the early hours of the morning of 5 June 2014. I reserved until today my decision on the State's application for an order that the statement of the complainant, Mr Ambler, signed on 5 June 2014 be admitted into evidence at the trial.
For reasons which I will now explain, I will refuse to admit Mr Ambler's statement.
Background
The accused is charged with one count of armed robbery committed on 5 June 2014 at Rivervale. It is alleged that he stole a motor vehicle from Mr Ambler, with violence, and that he pretended to be armed with a dangerous weapon, namely a gun, and did bodily harm to Mr Ambler. Tragically, Mr Ambler died on 2 December 2015, and the State seeks to read his statement in the trial of the armed robbery charge.
The principal evidence against the accused is contained in Mr Ambler's statement, which describes events occurring on Thursday, 6 June 2014 at Rivervale. I apprehend that the State will ask the jury to conclude that the date was an error and that the events described in fact took place on Thursday, 5 June 2014.
Mr Ambler says that he was working as a pool technician at the rear of a property in Rivervale. He says he heard his van start and begin to reverse down the street with its handbrake on. Mr Ambler says that he sprinted down the street and caught up with the van, standing in front of it to prevent it from being driven off. The van accelerated forward and struck Mr Ambler, who reached into the window and took the keys from the ignition. The driver exited the vehicle and demanded the keys, and started throwing punches at Mr Ambler. A fight between the two men ensued. Mr Ambler says that, during the fight, the man shouted 'I've got a gun'. The fight is described as continuing for 4 ‑ 5 minutes, ending when the man ran away after another person arrived at the scene.
Mr Ambler described the driver of his van as a male of about 30 years of age and about 5 foot 11 inches in height. The man was of medium build with very pale skin. The man was described as wearing a grey hoodie, long black shorts and as wearing a black backpack over his left shoulder. He had light hair and was scruffy looking.
Mr Ambler did not identify the accused as the driver of his van, but assisted police to compile a computer composite picture of the man.
The principal evidence as to identity is the accused's DNA profile which the State says was found on Mr Ambler's shirt and inside Mr Ambler's van.
There is also evidence of Ms Keene, a resident of a nearby house, who reported hearing a loud screeching noise and seeing two men fighting in the middle of an intersection. She describes Mr Ambler and another man, who was wearing a black hoodie and black pants and was carrying a black shoulder bag. The other man was described as having extremely pale skin, fair short hair and as appearing to be in his late 20s.
The State also plans to adduce photographic evidence of the van and Mr Ambler's injuries.
It is clear that, without Mr Ambler's statement, the State cannot prove that the accused stole the van or pretended to be armed when doing so. That is, Mr Ambler's evidence is critical to the prosecution case.
Power to admit the statement of a deceased witness
Clause 7(1)(a) of sch 3 to the Criminal Procedure Act 2004 (WA) provides:
A court dealing with a charge may admit into evidence a statement of a witness … if the court is satisfied that the statement complies with clause 4 … and -
(a)that the witness is dead[.]
Clause 4 of sch 3 provides the conditions which must be complied with in order for a statement to be admissible. Mr Ambler's statement of 5 June 2014 complies with the applicable conditions. It was a written statement which identified Mr Ambler as the person making it, and purports to be signed by Mr Ambler. The statement ends with the declaration required by cl 4(5) of the Schedule.
Clause 7(5) is in the following terms:
A court may refuse to admit a statement or recording under this clause if the court is satisfied that the admission of the statement or recording would be unfair to the party.
Clause 7(6) states:
If a statement … in a written form is admitted in evidence under this clause in a case being tried by a jury, it must be read aloud to the jury but, unless the court orders otherwise, must not be given to the jury.
Mr Ambler's statement meets the requirements of admissibility under cl 7, subject to the exercise of my power to refuse to admit the statement if satisfied that its admission would be unfair to the accused.
The power of a court to admit evidence under cl 7 or its predecessor provisions has been considered in a number of appellate decisions, the most recent to which I have been referred being Daniels v The State of Western Australia [2010] WASCA 200. A number of general propositions emerge from those authorities.
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: Daniels [7].
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: Chaudhry v The Queen [2007] WASCA 37 [44] - [45]; Daniels [63] ‑ [64].
3.The appellate courts assess fairness by reference to the course of the trial. At this stage of the proceedings, 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 pursue lines of cross‑examination to his or her material advantage: Daniels [8] ‑ [11]; Galea v The Queen (1989) 1 WAR 450, 459 ‑ 460.
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 of contradiction: Daniels [11]; Chaudhry [42].
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: 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].
In my view, the reasons why a witness is not available to give evidence may inform the assessment of whether it is unfair to admit a statement of that witness. Clause 7 does not apply only where a witness has died. It may also apply where a witness is ill or out of the State, where the witness is being 'kept out of the way' by an accused or where the accused consents.
It may be more difficult to satisfy a court that the admission of a statement is unfair to an accused where he or she has caused the absence of the witness or contributed to their absence by the commission of the charged or some other offence. It is harder to characterise a disadvantage brought about by the accused's own conduct as unfair to the accused. Equally, it will be more difficult to satisfy a court that unfairness arises where the accused consents to the admission of the statement. Further, as the decision in Birch v The Queen (1994) 12 WAR 292, 307 illustrates, the absence of objection to the admission of the statement at trial may also be a relevant consideration.
On the other hand, a court may more readily be satisfied that the admission of a statement is unfair to an accused where the witness is temporarily unavailable due to illness or travel, and the disadvantages caused by the absence of the witness could be avoided by a short delay in the trial.
In the present case, the issue arises where Mr Ambler has died and there is no suggestion that the accused in any way contributed to his death. The accused objects to the admission of the statement. The question of whether the admission of Mr Ambler's statement would be unfair to the accused is to be considered in that context.
There is no suggestion that there was any impropriety in the manner in which Mr Ambler's statement was obtained. There is no suggested unfairness to the accused arising from the manner in which Mr Ambler's statement was prepared. Nor is there any suggestion that any unfairness arises because of the manner in which Mr Ambler's statement is expressed. The accused does not contend that Mr Ambler's statement is overly vague, or contains inadmissible opinion or is otherwise in a form which would make its admission unfair to the accused.
Elements of the State's case
The question of unfairness cannot be considered in isolation from the facts which the State must prove to establish the charged offence.
The State relies on s 371A of the Criminal Code (WA) (Code) to establish the stealing of the motor vehicle by the accused driving the van without permission.
Having regard to the terms of s 371A and s 392 of the Code and the evidence proposed to be adduced in this case, to establish the charged offence of armed robbery the State will need to prove:
1.The accused drove the van.
2.The accused did not have the permission of Mr Ambler to drive the van.
3.The accused did not have the permission of the owner, Longlook Pty Ltd, to drive the van.
4.The accused used violence against Mr Ambler at the time of, or immediately after, driving the van.
5.The accused used that violence in order to steal the van or overcome Mr Ambler's resistance to it being stolen.
6.At or immediately after the commission of the offence, the accused pretended to be armed with a gun.
Elements not in issue: identity
In the present case, there is no real prejudice to the accused in relation to the question of identity.
The accused accepts that he was present at the scene of the alleged offence, so that identity is not in issue in this case. Counsel for the accused has indicated that, at trial, the accused will formally admit that he was present.
In any event, Mr Ambler did not identify the accused as the driver of his van. The State's case as to identity depends on its forensic DNA evidence establishing, beyond reasonable doubt, that the accused was the man described by Mr Ambler and Ms Keene.
Elements established by other evidence
A number of the factual elements I have identified are established by evidence other than that of Mr Ambler.
The absence of Longlook's permission for the accused to drive the van is established by the evidence of Mr Williams, the owner of that company, and associated certificates about the registration of the van.
The evidence of Ms Keene, of police officers who observed Mr Ambler's injuries and photographic evidence are capable of proving the elements of violence and the aggravating circumstance of bodily harm even without Mr Ambler's evidence.
Elements for which Mr Ambler's evidence is the only evidence against the accused
However, Mr Ambler's statement provides the only evidence in relation to the other factual elements which I have identified.
Mr Ambler is the only witness who saw the accused drive the van. He states that he did not give the accused permission to get into or take the van.
Mr Ambler's statement also contains the only evidence that the accused used violence in order to obtain the van or overcome resistance to it being stolen. Mr Ambler's statement is that the van accelerated towards him and struck him as he stood in front of the van. He indicates that the accused demanded the keys to the van back about six times before charging at Mr Ambler and throwing punches at him. That evidence, if accepted, gives rise to the clear inference that the accused used violence in order to get the keys back so he could steal the van, and drove the van at Mr Ambler in order to overcome resistance to the van being stolen.
Mr Ambler's statement that the accused said 'I've got a gun' is the only evidence that the accused was pretending to be armed.
Ms Keene's statement does not prove any of these elements. She does not see the accused driving the van, or the events described by Mr Ambler as the accused demanded the keys. Her statement describes hearing a noise while she was on the phone. She describes running out of her house to see the accused and Mr Ambler by the van. She said that the accused was trying to run away but Mr Ambler had hold of his shoulder bag. The assault she describes follows this observation, and she does not see the accused do anything to attempt to obtain keys or take the van. There is nothing in Ms Keene's statement that demands the inference that the accused engaged in violence in order to steal the van or overcome Mr Ambler's resistance to it being stolen.
Ms Keene's statement does not indicate that she heard the accused say anything about a gun.
Mr Ambler's statement that the accused drove the van is corroborated by the evidence of the accused's DNA being located on the steering wheel. Otherwise Mr Ambler's statement about the elements I have just dealt with is uncorroborated by any other evidence which the State proposed to lead at trial.
The accused's submissions
Written submissions filed by the accused contend that unfairness arises because no direction can cure 'the deprivation to the accused of the opportunity to put an alternative version of events to the witness'. In oral submissions, counsel for the accused explained that an aspect of the defence case would be that the State's evidence did not exclude the reasonable possibility that the accused assaulted Mr Ambler in order to escape from the scene, rather than in order to steal the van or overcome resistance to it being stolen. Mr Ambler's statement is obviously inconsistent with that position. However, counsel for the accused would have cross‑examined Mr Ambler as to the circumstances he described, putting it to him that he was mistaken about his account of events that gave rise to the inference that the accused used violence for a relevant purpose.
Further, counsel for the accused indicated that he could have put a number of parts of Ms Keene's statement to Mr Ambler, which were inconsistent with Mr Ambler's statement. Counsel would do so for the purpose of seeking to have Mr Ambler accept that, given the observations of an independent witness, he might be mistaken about the details of the event. Mr Ambler's acceptance of that proposition would weaken the credibility of his evidence and might lead to concessions giving rise to a reasonable doubt as to the purpose for which the accused used violence. Counsel for the accused makes the point that if the State does not establish that violence was used in order to steal the van or overcome resistance to its being stolen, it has not established that any robbery took place.
The accused also submits that he is prejudiced as the only avenue by which he could present his version of events would be to forfeit his right to silence, and that the compromise of such a fundamental right would render the trial unfair.
The State's submissions
The submissions of counsel for the State did not really engage with the arguments advanced by the accused as to why the admission of Mr Ambler's statement would be unfair to the accused. Counsel for the State made the valid point that I would give an appropriate warning to the jury both before Mr Ambler's statement was read and in my closing directions to the jury.
The balance of the State's submissions appeared to proceed on the assumption that Mr Ambler's statement was accurate, and clearly established the commission of an armed robbery, and that the issue was a question for the jury. I do not accept that these submissions provide a reason for rejecting the accused's contention about unfairness. The question of fairness is not to be approached on the premise that the accused must be guilty. The question of whether the admission of the statement would be unfair to the accused is to be answered by the presiding judge and not the jury.
Unfairness in this case
In my view, there are a number of features of this case which combine to make the admission of Mr Ambler's statement unfair to the accused in all the circumstances.
Mr Ambler's statement is critical to the prosecution case
Mr Ambler's statement is the only evidence that the accused committed the offence with which he is charged in the indictment. The fact that Mr Ambler's statement concerns central rather than peripheral issues is recognised by the authorities as a factor favouring admission rather than rejection of the evidence. However, the fact that the statement is the only evidence of critical elements of the charged offence is a factor counting against its admission.
This is a feature which distinguishes the present case from Daniels, where McLure P and Buss JA emphasised the existence of evidence on which the jury might have convicted Daniels other than the statement admitted under cl 7. It is also a feature which distinguishes this case from others I have found where a written statement has been admitted at trial, such as Chaudhry, Galea, Hill v The Queen [2003] WASCA 177, R v Slater [2003] WASC 171 and The State of Western Australia v Muller [2015] WASC 199, especially at [108] ‑ [109].
This feature may not distinguish the present case from Birch, where three complainants in a stealing charge had died and a fourth complainant was too ill to attend trial. However, in Birch there was no objection to the admission of the witnesses' statements at trial, and the argument on appeal merely asserted the loss of opportunity to cross‑examine without identifying any elements, facts or circumstances having a particular bearing on the case (307).
The accused would have cross-examined Mr Ambler as to one of the critical elements
In this case, if the opportunity had been available, counsel for the accused would have cross‑examined Mr Ambler by putting an alternative scenario to him. If accepted, that scenario would give rise to a reasonable doubt as to whether the accused used violence for the relevant purpose. The alternative scenario is that Mr Ambler pulled the accused from the van and the accused did not struggle while he was in possession of the van. That scenario would support a contention that accused only used violence in order to escape after being caught in the van, and not to steal the van or overcome resistance to it being stolen.
There is a real prospect cross-examination would have produced a material forensic advantage
In all the circumstances of this case, there is a real prospect of such cross‑examination producing a material forensic advantage giving rise to a reasonable doubt as to whether the accused used violence to steal the van or overcome resistance to it being stolen. That is so for the following reasons.
The prospect of the cross‑examination producing such an advantage is in part suggested by the character of Mr Ambler's evidence. His statement concerns a stressful situation involving a substantial fight between the accused and Mr Ambler. Persons giving evidence about situations of that kind often present with radically different versions of the detail of events, even when attempting to give an honest account. The nature of the events which Mr Ambler describes gives rise to a reasonable apprehension that his perception of what he and the accused did during the fight might not be entirely accurate.
Further, there are significant inconsistencies between the statements of Mr Ambler and Ms Keene. Mr Ambler described the van making noise as it reversed down the street. He then describes the van moving forward, his struggle to get the keys, the threats made by the accused and a fight which lasted for 4 ‑ 5 minutes before he pulled on the accused's backpack. Ms Keene described hearing the loud squealing noise and running out the side door of her house to see Mr Ambler holding the accused's shoulder bag as the accused tried to run away. On Ms Keene's version, there would not have been time for the occurrence of the events Mr Ambler describes as happening between the van reversing loudly and his grabbing the accused's bag.
There are a number of other less important, but still significant, inconsistencies between the accounts given in Mr Ambler's and Ms Keene's statements.
Counsel for the accused indicated that he would have put the contents of Ms Keene's statement to Mr Ambler if he had an opportunity to cross‑examine. There is a real prospect that, faced with the account of an independent witness, Mr Ambler would accept that he may have been mistaken in material parts of his account of events. The events described by Ms Keene are more consistent with the accused using violence to get away and retrieve his bag than using violence in order to steal the van or overcome resistance to it being stolen.
Nature of the potential material forensic advantage
The forensic advantage which the accused had a real prospect of obtaining from cross‑examination of Mr Ambler has three aspects to it.
First, it may be that the answers which Mr Ambler gave would have raised a reasonable doubt as to whether the accused used violence for the purpose of stealing the van or overcoming Mr Ambler's resistance to it being stolen. In that event, the accused would have been entitled to an acquittal.
Secondly, the answers given in cross-examination may have qualified what is said in the statement in a way that meant that the accused was not practically compelled to give evidence in order to avoid conviction. If the statement is admitted, given that the accused cannot test the evidence then his only practical means of challenging the statement is to forgo his right to silence and go into the witness box to give his version of events. I note that the accused did not participate in a recorded interview, and so his account of events will not be before the jury by that means. The lost opportunity to cross‑examine Mr Ambler is a lost opportunity to potentially avoid giving evidence and being subject to cross‑examination by the prosecutor.
Thirdly, even if the accused would still have been practically required to give evidence in the hypothetical case in which Mr Ambler was cross‑examined, the cross‑examination could still produce a material forensic advantage for the accused. If the cross‑examination damaged Mr Ambler's credibility, then the prospect of the accused's evidence being accepted by the jury as raising a reasonable doubt as to the reason violence was used would be increased.
Unfairness arises from loss of opportunity to test the evidence in all the circumstances
It is not now possible to determine whether the accused's position would actually have been improved by the cross‑examination which counsel for the accused would have undertaken had Mr Ambler not died. Nor can I say whether the accused will actually be in a better position if the statement is admitted with a warning than he would have been in the hypothetical case where Mr Ambler gave evidence and was subject to the cross‑examination described by counsel for the accused. It may be that the accused's position would have been better with a warning and witness who is not present to contradict aspects of the accused's evidence or explain inconsistencies between his evidence and that of Ms Keene. Alternatively, it may be that the accused's position would have been better if Mr Ambler had been subject to cross‑examination. Determining which position would be better for the accused requires speculation as to the outcome of a hypothetical cross‑examination of Mr Ambler.
Unfairness to the accused is not established by reference to a conclusion about what Mr Ambler would have said under cross‑examination, when the evidence does not demonstrate that he would have answered questions posed to him other than in accordance with his statement.
My conclusion about unfairness in this case is not based on a conclusion as to whether the answers Mr Ambler would have given in cross‑examination would actually have placed the accused in a better or worse position than if Mr Ambler's statement were admitted in the trial. The unfairness I perceive in this case does not involve the accused being deprived of favourable answers by Mr Ambler in cross‑examination. Rather, my conclusion about unfairness is based on the accused being deprived of the opportunity to test the veracity of Mr Ambler's statement in all the circumstances of the case. In my view, unfairness arises because the accused will be deprived of the opportunity to pursue a line of cross‑examination which he would have undertaken if Mr Ambler had been available and which had a real prospect of producing a material forensic advantage for him.
The nature of Mr Ambler's evidence concerning the events of his fight with the accused, and the contents of Ms Keene's statement, give rise to a real prospect of the cross‑examination which counsel would have undertaken producing a material forensic advantage with one or more of the aspects I have described.
Directions to the jury
If the statement were admitted I would, of course, give an appropriate warning to the jury both before Mr Ambler's statement was read and in my closing directions to the jury. However, the warnings I may give, and the submissions counsel may make, would not negative the loss of opportunity I have described.
A conviction based on Mr Ambler's untested statement would not be the product of a fair trial
If Mr Ambler's statement is admitted the accused faces the prospect of being convicted in circumstances where a written statement which he has no opportunity to test is the only evidence of critical elements of the charged offence. Had it been available, the accused would have exercised the opportunity to test Mr Ambler's evidence in a manner which had a real prospect of producing a material forensic advantage of the kind I have described. A direction from me does not negate the loss of that opportunity. Denial of that opportunity may well involve denial of an opportunity for acquittal. The loss of the opportunity is in no way attributable to the conduct of the accused. In my view, such a conviction would not be the product of a fair trial.
Denial of the opportunity to test Mr Ambler's statement in all the present circumstances can therefore be seen to make the admission of that statement unfair to the accused. This is so even though it is not possible to say definitively whether the material forensic advantage would in fact have materialised had the opportunity been available. It is enough that the accused is unable to pursue the proposed line of cross‑examination which had a real prospect of producing material forensic advantage for him, including an opportunity for acquittal, in relation to the only evidence of his commission of the charged offence.
Conclusion
In Birch (297), Franklyn J, with whom Rowland J agreed, expressed the opinion, in relation to the predecessor to cl 7, 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. Subsequent cases dealing with the issue, in which statements have been admitted, tend to confirm that observation. However, there are special features to this case which, in my view, distinguish it from the other cases in which statements have been admitted. Important features of this case are that the statement is the only evidence of a number of elements of the offence, and the accused has 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.
Having regard to all the circumstances of this case, I am persuaded that admitting Mr Ambler's statement would occasion practical unfairness to the accused which cannot be negatived by an appropriate direction to the jury. I therefore refuse to admit Mr Ambler's statement on the basis that I am satisfied that the admission of the statement would be unfair to the accused.
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