PRACTICE & PROCEDURE – application to file and serve notice of appeal out of time – need for “special reasons” pursuant to O 52 r 15 of the Federal Court Rules - appellant not granted legal aid funding – delay not caused by mere inadvertence or procrastination –appellant always wished to appeal – good prospects of success – prejudice to the Crown less than in other cases.
CRIMINAL LAW – application at trial to discharge jury – application refused on basis that a direction to the jury would be sufficient – individual juror dismissed because he overheard a court officer discuss the appellant’s prior criminal record – no evidence that other jurors did not also overhear comments about the appellant’s prior criminal record – serious risk of prejudice to the appellant which a direction may not overcome – failure to discharge a miscarriage of justice.
EVIDENCE – application at trial by appellant for access to privileged documents under s 123 of the Evidence Act 1995 (Cth) (“the Evidence Act”) – application refused – interrelation between the provisions of that Act and Legal Aid Act 1977 (ACT) – privileged documents were forensically relevant and interests of justice would generally require such documents to be produced to defence counsel – application at trial for adjournment to recall Crown witness after Crown case closed to prove the documents – application refused – appellant had every reasonable opportunity to defend himself – refusal of adjournment did not alter this – as Crown witness could not be recalled there was no use that appellant’s counsel would have made of the privileged documents – refusal to grant access to privileged documents not the crucial decision – no appellable error.
EVIDENCE – statement of a deceased Crown witness admitted at trial as exception to hearsay rule under s 65 of the Evidence Act – meaning of “shortly after” in s 65(2)(b) – s 65(2)(b) principally concerned with excluding concocted evidence – memory of the person making the statement not the key concern –meaning of “in circumstances that make it unlikely that it is a fabrication” in s 65(2)(c) – onerous requirements – need to consider not only whether the evidence appears to the judge to be reliable but all the circumstances as to the making of the statement – admission of such evidence was unfairly prejudicial under s 137 of the Evidence Act.
EVIDENCE – failure to give “accomplice” direction under s 165 of the Evidence Act – admission of evidence accompanied by failure to give such a direction amounts to a miscarriage of justice.
Evidence Act 1995 (Cth), ss 8(1), 65(2)(b), 65(2)(c), 123, 137, 164(3), 165 Legal Aid Act 1977 (ACT), s 92 Federal Court Rules, O 52 r 15
Webb v The Queen (1994) 181 CLR 41, applied Winsor v The Queen (1866) LR1QB 390 R v Vaitos v (1981) 4 A Crim R 238 R v Munday (1984) 14…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Williams v The Queen [2000] FCA 1868
Case
[2000] FCA 1868
Decision Date
CaseChat Overview and Summary
In the case of Williams v The Queen, the appellant, Williams, contested his conviction for armed robbery, alleging errors in the admission of evidence during his trial. The primary issue before the court was the admissibility of a police interview transcript with a deceased witness under section 65 of the Evidence Act, which provides exceptions to the hearsay rule. The deceased witness, Mr Stewart, had been interviewed by police five days after the armed robbery and made statements that were inconsistent with Williams’s defence. The trial judge admitted the transcript, finding it highly probable that Mr Stewart’s statements were reliable. Williams argued that the interview was not admissible because it was not made “shortly after” the events described, contrary to section 65(2)(b) of the Act.
The court considered the meaning of “shortly after” in light of previous case law, particularly Conway v The Queen, which held that the phrase requires a normative judgment based on the circumstances of the case, primarily influenced by the elapsed time and the nature of the event. The court concluded that the five-day delay between the robbery and the interview meant that the evidence did not meet the requirement of being made “shortly after” the events. Additionally, the court found that the evidence did not meet the requirement of being made in circumstances that make it unlikely that the representation is a fabrication, under section 65(2)(c). Therefore, the trial judge’s admission of the transcript was deemed erroneous.
As a result of this error, the court quashed Williams’s convictions and sentences, allowing the appeal. The matter was remitted for retrial before a single judge of the Supreme Court of the Australian Capital Territory.
Orders
Orders of the court
1. The appeal be allowed.
2. The convictions and sentences recorded against the appellant on 4 March 1999 are quashed.
3. The matter be remitted for retrial before a single judge of the Supreme Court of the Australian Capital Territory.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
We should add that, in addition, it was submitted by the DPP that it had not been an error to refuse the adjournment because the letter was not of sufficient significance to the appellant’s case and that, for that same reason, any error that may have been made regarding the admissibility of the letter would not amount to a miscarriage of justice. However having regard to our conclusion, we need not explore this submission further. Admission into evidence of statements of deceased Crown witness On 26 November 1996, Mr Stewart had participated in a taped record of interview with the police, but on 31 October 1997, before the trial of the appellant, he died. In some respects the interview was merely consistent with the appellant’s case. However, Mr Stewart also stated in the interview that he had been gardening on the Wednesday before the armed robbery, that he had been unaware of the sawn-off rifle buried in his yard until it was found by the police, and that on the morning of the robbery the appellant had told him that he “had done a rort” and asked him whether he had an incinerator. The Crown sought to tender a transcript of the record of interview, as an exception to the hearsay rule pursuant to s 65 of the Evidence Act, which was opposed by counsel for the appellant. The trial judge admitted the transcript into evidence, stating in the course of argument:“when you look at all that Mr Stewart [says], it is highly probable that what he says is reliable, having regard to the other evidence, the nexus in time and in place and the … disposing of the bag. It all hangs together.”His Honour concluded:: “I find it highly probable that [the representations made in the transcript] are reliable”. Section 65(2) of the Evidence Act provides:“The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:…(b)made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or(c)made in circumstances that make it highly probable that the representation is reliable”.It is not clear whether his Honour admitted the transcript under subs (2)(b) or (2)(c). However, the appellant argued that the interview was not admissible as an exception to the hearsay rule under either of these sections. Since his Honour dealt with this matter, the meaning of these provisions has been explained by a Full Court of this Court in Conway v The Queen (2000) 98 FCR 204.“shortly after” The appellant submitted that the interview was not admissible under s 65(2)(b) of the Evidence Act because, having been recorded five days after the armed robbery, it could not be said to have been made “shortly after” the events described in the interview. In Conway the Full Court considered both limbs of s 65(2)(b). With regard to the phrase “shortly after”, the Court said at paras [123] – [135]:“The word ‘when’ in s 65(2)(b) of the Act encompasses [the] notion of strict contemporaneity. The introduction of the expression ‘shortly after’ is, however, a significant departure from traditional doctrine.…The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made ‘when’ or ‘shortly after’ the asserted fact occurred seems to be to ensure that the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative. The expression ‘shortly after’ makes it clear that there need not be anything like the strict contemporaneity required at common law to render the evidence admissible as res gestae. In R v Mankotia [1998] NSWSC 295, Sperling J had occasion to deal with the meaning of the expression ‘shortly after’ in s 65(2)(b) of the Evidence Act 1995 (NSW). His Honour said:‘The phrase ‘shortly after’ is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to taken into account but – as in the case of normative judgments generally – it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase ‘shortly after’ must be the actual time that has elapsed and whether that fits the ordinary usage of the expression ‘shortly after’ in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.’These observations were later cited with approval by Levine J in R v Polkinghorne (1999) 108 A Crim R 189. We consider that both Sperling and Levine JJ were correct in their analysis of the meaning of the expression ‘shortly after’ in the context in which it appears.”At paras [137] – [140] their Honours said:“The second condition which must be met before evidence may be led pursuant to s 65(2)(b) is that the representation must have been made in circumstances that ‘make it unlikely that it is a fabrication’. …In Polkinghorne Levine J drew attention to the similarities between the language employed by the legislature in the second condition prescribed by s 65(2)(b), and what Lord Wilberforce had said in Ratten v The Queen at 388‑390. It is worth repeating what Lord Wilberforce had there said:…“…As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression ‘res gestae’ may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges’ rulings.’In Polkinghorne Levine J observed that these passages from Lord Wilberforce’s speech had been cited, and with apparent approval, by Barwick CJ in Vocisano. Levine J also observed that the rigidities of Bedingfield might now be regarded as obsolete. A spontaneous exclamation made within a short time of an incident to which it relates would ordinarily be ‘unlikely to be a fabrication’. That is a proposition with which we would not disagree.”