ZL v The Queen
[2010] VSCA 345
•14 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| ZL | S APCR 2010 0425 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and BONGIORNO JJA and ROSS AJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 14 December 2010 |
DATE OF JUDGMENT: | 14 December 2010 |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 345 |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Whether exclusion of evidence would substantially weaken Crown case – CGL v DPP (No 2) (2010) 24 VR 482, considered – Criminal Procedure Act 2009, s 295(3)(a).
CRIMINAL LAW – Evidence – Hearsay – Previous representation – Witness statement – Whether person who made statement not available to give evidence – Whether all reasonable steps taken to find person – Evidence Act 2008, s 65(2)(b), Dictionary, clause 4(1)(e).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr K J Doyle | Matthew White & Associates |
| For the Crown | Mr C Beale with Mr G Slim | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an application for leave to appeal against an interlocutory decision of a County Court judge to admit as evidence two witness statements made by MZ, pursuant to s 65(2)(b) of the Evidence Act 2008 (‘the Act’).
Section 65(2)(b) provides that the hearsay rule does not apply to evidence of a previous statement given by a person who saw, heard or otherwise perceived the statement being made, if the maker of the statement is not available to give evidence about the asserted fact and if the statement was made when or shortly after the asserted fact occurred, in circumstances that make it unlikely that the statement is a fabrication.
The facts
The facts, in brief, are that the applicant, ZL, has pleaded not guilty to one count of aggravated burglary, one count of intentionally causing serious injury, and one count of recklessly causing serious injury, on 1 June 2009.
The Crown case is that the victim of the offending, XN, was living in a boarding house. The offending arose out of an altercation between XN and another resident of the boarding house, WT, during which XN punched WT in the mouth. The applicant was a former resident of the boarding house who entered the premises a short time later. He saw WT bleeding from the mouth and was told that XN was responsible. The Crown contends that the applicant then entered XN’s room unlawfully and stabbed XN with a kitchen knife, causing XN serious injury.
Although the applicant initially denied the attack, his defence has since changed to self-defence. He now claims that XN had a knife. To some extent he is supported in that version of events by WT, who claims that, before the incident, he saw XN holding a Stanley knife outside his door in the hallway.
Although MZ was only 18 years old at the time of the incident, and XN was 38, MZ was staying with XN in his room as his girlfriend at the time. Shortly after the incident, she told police that she observed the applicant making stabbing motions at XN with a knife and that XN was trying to defend himself by holding his hands in front of him. She said that, once the applicant left the room, she lifted XN’s jumper and saw that he had been cut. She then called for police and ambulance and tended to XN until they arrived. Within an hour of the police arriving, she made the two subject witness statements in which she detailed what she had seen. There is no suggestion in either of her statements that XN had a knife.
The judge’s ruling
In effect, the judge was required to decide three questions. The first was whether MZ was ‘not available to give evidence’ within the meaning of s 65 of the Act. The second was whether MZ made the statements shortly after the asserted facts occurred in circumstances that made it unlikely the statements were a ‘fabrication’ within the meaning of the section. The third was whether if the statements were otherwise admissible they should be excluded in the exercise of discretion pursuant to s 137 of the Act.
The judge held that MZ was not available to give evidence within the meaning of s 65 of the Act; that the statements were made shortly after the asserted facts occurred, in circumstances that made it unlikely the statements were a ‘fabrication’; and that the statements should not be excluded in the exercise of discretion pursuant to s 137 of the Act.
Her Honour also certified, pursuant to s 295(3)(a) of the Criminal Procedure Act 2009, that, if the statements were ruled inadmissible, it would eliminate or substantially weaken the Crown case.
Conditions for granting leave to appeal
Perforce of s 297(1) of the Criminal Procedure Act 2009, this court may give leave to appeal against an interlocutory decision if satisfied that it is in the interests of justice to do so, having regard to the extent of disruption or delay to the trial process and if, amongst other things, it may reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial.
The right of appeal is, however, subject to s 295(3) of the Criminal Procedure Act 2009, in the sense explained by Maxwell P said in CGL v DPP (No 2).[1] That is to say:
The certificate under s 295(3)(a) is an important element in the management of this new procedure. Although we have no formal function of reviewing the grant of a certificate (in contrast to our function under s 296 of reviewing a refusal to certify), it will ordinarily be relevant on an evidentiary application of this kind to examine the significance of the evidence by reference to the test in s 295(3)(a). If, as here, this court comes to a different view about the significance of the evidence in question, that is likely to bear heavily on the exercise of the discretion under s 297(1) to grant or refuse leave to appeal.
[1](2010) 24 VR 482, 484 [13] (Maxwell P).
In this case, the trial is not listed to begin until February 2011. Consequently, I do not consider that there should be any disruption or delay. For the reasons which follow, I am also persuaded that exclusion of the statements would substantially weaken the Crown case and that to grant leave to appeal may reduce the likelihood of a successful appeal in the event of conviction
Eliminate or substantially weaken
I turn first to the effect of exclusion of the witness statements on the Crown case. In CGL v DPP (No 2),[2] this Court approached the question of whether the exclusion of evidence would eliminate or substantially weaken the Crown case by enquiring whether exclusion of the evidence would cause the Crown seriously to consider discontinuance of the prosecution. Maxwell P, with whom the other members of the court agreed, said that:
In the course of argument, Bongiorno JA suggested that some guidance in assessing whether the exclusion of evidence would ‘substantially weaken the prosecution case’ might be found in considering what effect the loss of the relevant evidence would be likely to have on the view of the Crown as to the propriety of proceeding with the case. With respect, that seems to me to be an illuminating way of approaching this question. If the evidence is of such importance that its exclusion could be properly said to ‘substantially weaken’ the prosecution case, then the situation would presumably be one which called for serious consideration by the Crown about whether the prosecution case should go ahead.[3]
[2]Ibid.
[3](2010) 24 VR 482, 484 [11].
The Court, however, did not purport to lay down a definitive interpretation of the section or to proscribe the application of any broader test. As Maxwell P observed, it was neither necessary nor appropriate to attempt to provide authoritative guidance because, on any view of the test, it was clear that the facts in that case fell outside it. Thus the jurisprudence was left to develop on a case-by-case basis as his Honour said it should.
In this case, the judge decided that it was necessary to go beyond an inquiry as to whether exclusion of the evidence would be likely to result in the Crown questioning the propriety of proceeding with the prosecution. Although the Crown submitted below that the test was whether exclusion of the evidence would call into serious question whether the prosecution should proceed, her Honour said that she was assisted by the decisions of the New South Wales Court of Criminal Appeal in R v Shamouil[4] and R v SJRC[5] that the words ‘substantially weaken’ in s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) mean that the effect of exclusion of the evidence must be to weaken the prosecution case more than nominally, the weakening effect of the exclusion of the evidence must be significant. According to that view of the matter, as Spigelman CJ said in Shamouil:
Even a case which is otherwise likely, even very likely, to succeed, may still be ‘substantially weakened’, if evidence of cogency or force is withheld.[6]
[4](2006) 66 NSWLR 228.
[5][2007] NSWCCA 142, [27] (James J), [31] (Rothman J).
[6]Ibid 234 [37].
On that basis, the judge held that, if the evidence of MZ were excluded, the prosecution case would be substantially weakened within the meaning of s 295(3).
Before this court, both parties agreed that, in view of other evidence,[7] it could not be said that exclusion of MZ’s statements would cause the Crown seriously to consider discontinuance of the prosecution. Both parties were also agreed, however, that the judge was right to follow the test in Shamouil and to hold, on that basis, that exclusion of the statements would substantially weaken the Crown case.
[7]Principally, the applicant’s admissions that he had a knife and stabbed the complainant.
Contrary to the Crown’s submissions below, counsel for the Crown urged us to adopt a similar view of the section. He submitted that, given that Parliament enacted s 295(3) of the Criminal Procedure Act 2009 in terms which, so far as relevant, are identical to the s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), it should be taken to have intended that s 295(3) be construed in accordance with Shamouil.
I accept that submission. The words ‘substantially weaken the prosecution case’ in s 295(3) of the Criminal Procedure Act 2009 are in pari materia with the words ‘substantially weaken the prosecution case’ in s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) and, therefore, in the absence of any indication to the contrary, it may be assumed that Parliament intended that they should bear a similar meaning.[8]
[8]Lennon v Gibson and Howes Ltd [1919] AC 709, 711–713, (1919) 26 CLR 285, 287; Imperial Chemical Industries of Australia and New Zealand Ltd v Federal Commissioner of Taxation (1972) 46 ALJR 35, 41; and on appeal [1972) ALR 715, 730; Dampier Salt v Collector of Customs (1995) 133 ALR 502; Pearce & Geddes, Statutory Interpretation in Australia, 6th Ed, at [3.36].
So to say does not detract from the importance of the warning sounded by Maxwell P in CGL v DPP (No 2)[9] that trial judges and prosecutors must exercise very real vigilance as to how s 295(3)(a) is applied, lest the work of this Court become bogged down in a way Parliament cannot possibly have intended with applications for leave to appeal against evidentiary rulings. As counsel for the Crown rightly submitted, therefore, proper application of the Shamouil test does not justify an interlocutory appeal unless a major or very important piece of evidence is in issue. It is not enough that the exclusion of evidence may ‘significantly’ weaken a Crown case. In this context, ‘substantially’ connotes something more than ‘significantly’. It bespeaks evidence which is of major importance or at least is very important to the Crown case under consideration.
[9](2010) 24 VR 482, [5].
On the facts of this case, however, I agree with the judge that the evidence of MZ would be of major importance or at least would be very important to the Crown case and thus that, if it were excluded, the Crown case would be substantially weakened within the meaning of s 295(3)(a).
Was the witness not available to give evidence?
I turn next to the question of whether it was established that MZ was not available to give evidence. As the judge observed, clause 4(e) of the Dictionary section of the Act provides that a person is taken not to be available to give evidence if all reasonable steps have been take by the party seeking to prove the person is not available to find the person or to secure his or her attendance, without success.
As to that, the evidence was that the witness failed to attend the committal hearing in April 2009, despite being served with a subpoena. The committal hearing was put off then to June 2009, but the witness failed to appear then either. She had earlier spoken by telephone with the informant and told him that she had broken up with XN and was scared of him. As a result, the prosecutor elected to remove MZ’s name as a witness from the brief and the applicant was committed to stand trial on the basis of the remainder of the evidence.
So the position remained until, in September 2010, the informant became aware of MZ’s address the consequence of the Office of Public Prosecutions contacting him to serve a subpoena on MZ as a witness in another proceeding. It is not clear why or if that changed the Crown’s decision not to rely on MZ as a witness. But it appears that it did result in the informant attempting unsuccessfully to serve a further subpoena on the witness on 14 September 2009 at the notified address.
It later emerged that MZ’s mother lived in an outer suburb of Melbourne and the informant spoke to her, too, but with difficulty because her English was very poor, and at that stage without result.
I infer that the Crown then resolved to seek to tender MZ’s witness statements pursuant to s 65(2)(b) of the Act and as a result did nothing further to locate her until the trial was scheduled to begin on 30 November 2010. On that day, however, the case was adjourned when the applicant failed to appear, and on 1 December 2010 the parties agreed that the police should make further attempts to locate MZ.
The informant later contacted MZ’s mother again, on that occasion with the aid of an interpreter, and got from her a phone number for MZ, and after several attempts to call the number he was able to leave a message on the message bank to call him. To date, however, she has not done so.
Police also attended MZ’s last known address in a Victorian country town, which was a crisis youth centre accommodation unit, and spoke to a young female who was a resident there. She said that she had no idea where the witness was. But there was uncollected mail there which was addressed to the witness.
Additionally, the informant emailed the witness’s photograph to local police with a request to send it to police stationed at the country town. To date, however, there has been no response to that.
On the basis of that evidence, the judge said that, although there were initial shortcomings in the prosecution’s attempts to locate MZ, the shortcomings were rectified by the fresh inquiries made of MZ’s mother, the attendance at MZ’s last known address, the telephone message left for her to call, and the email of her photograph to local police. The judge added that:
… it is obvious that the witness is very reluctant to give evidence due to the nature of her past relationship with [XN] who has a history of violence towards women he has been in a relationship with [sic]. If, as the evidence suggests, the witness is frightened and does not want to give evidence at the trial,it is unlikely that whatever efforts are mad to find her, by the police and prosecution, she will not be found [sic].
The judge concluded that she was satisfied that all reasonable steps had been taken to find MZ without success and, therefore, that MZ was not available to give evidence within the meaning of the section.
With respect, I take a different view. Given that the witness is said to be very important to the Crown case, it is only reasonable to expect that very extensive inquiries and efforts would have been made to locate her and ensure that she is available for trial. To date, however, even including the steps taken following the adjournment on 1 December 2010 (which it should be noted were completed in the space of the mere two days between the adjournment of 1 December 2010 and the judge’s ruling of 3 December 2010), such attempts as have been made to find the witness strike me at best as superficial and by and large decidedly half-hearted.
We were told that to date there has been no attempt to access the witness’s phone records, whether with the aid of a subpoena or otherwise, no effort to track her through Centerlink records, whether with the aid of a subpoena or otherwise, and no attempt to track her with the aid of her uncollected mail by making inquiries of the senders of that correspondence. There is, moreover, no suggestion of any surveillance at any of the possible addresses or of any inquiries made of known or suspected associates, or of any of the other forms of inquiries and investigations which one knows can be and are pursued when the prosecution determines to make the effort to do so.
Furthermore, even if the inquiries thus far undertaken were adequate, and in my view they are not, I would find it ‘very difficult’[10] to see why the witness should be regarded as being unavailable within the meaning of s 65(2)(b) when the trial is yet to begin, there is no objection to its postponement for the better part of the next three months and, as was in effect conceded in argument, in the time that remains before trial, the prosecution can reasonably do very much more that has thus far been done to locate the witness and ensure that she is available to give evidence.
[10]R v Li (2003) 140 A Crim R 288, 295 [33]; R v Darmody [2010] VSCA 41, [27]–[28].
In the result, in my view, it has not yet been demonstrated that the Crown has made all reasonable efforts to find the witness and I do not consider that it will be possible to determine whether the Crown has done so until and unless it has had the opportunity to do its reasonable best in the period which remains until the commencement of the trial.
Whether it is appropriate to admit the statements under s 65(2)(b) if and after the Crown has had that opportunity will depend on whether the Crown’s further efforts to find the witness are successful and, if not, whether those efforts are deemed to be adequate. It is, therefore, a question which cannot be determined until at or at least shortly before trial. And in the first instance, it should be determined by the trial judge in the circumstances which then obtain.
Further considerations
It follows, I think, that it is unnecessary and inappropriate at this stage to consider the further issues of whether the statements were made shortly after the occurrence of the asserted facts in circumstances which made it unlikely the statements were a ‘fabrication’, and whether the statements should be excluded in the exercise of discretion pursuant to s 137. Until and unless it is established the witness is unavailable to give evidence, those questions will remain academic.
Conclusion
In the result, I would grant leave to appeal, treat the appeal as instituted and heard instanter and allowed, and set aside the judge’s interlocutory decision to allow the Crown to tender MZ’s witness statements pursuant to s 65(2)(b).
I would add, however, for the avoidance of doubt, that it will remain open to the Crown to apply again to the trial judge to have the statements admitted pursuant to s 65(2)(b) if, after making all reasonable efforts in the time which remains before trial, the Crown is unable to find the witness.
BONGIORNO JA:
I agree with Nettle JA.
ROSS AJA:
I also agree.
NETTLE JA:
The orders of the Court are as follows:
1. The application for leave to appeal is allowed.
2.The appeal is treated as instituted and heard instanter and is allowed.
3.The decision of her Honour Judge Campton made herein on 3 December 2010, to admit as evidence pursuant to s 65(2)(b) of the Evidence Act 2008 the two witness statements of [MZ], is set aside.
4.The Court grants to the appellant an indemnity certificate pursuant to s 15A(2)(a) of the Appeals Costs Act 1998 in respect of the appellant’s own costs of the appeal.
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