Clarke (a Pseudonym) v The Queen [2017] VSCA 115

CRIMINAL LAW - Evidence - Reliability of representations of unavailable witness - s 65(2)(c) of the Evidence Act 2008 - Reliability to be evaluated by reference to the circumstances in which each representation was made - Irrelevant that representations tend to support other evidence as to facts in issue - Sio v The Queen [2016] HCA 32; (2016) 90 ALJR 963; Azizi v The Queen 224 A Crim R 325.

1 The accused, Clarke, Stanley, Wells and MW, face a joint indictment charging them with false imprisonment, extortion, causing injury intentionally and causing injury recklessly on the basis of joint enterprise. There is a single complainant, CW, who was unavailable to give evidence in the trial. The prosecution proposed to tender its evidence pursuant to s 65(2)(b) and (c) of the Evidence Act 2008 ('the Act'). Each accused submitted that the trial judge should exclude the evidence pursuant to s 137 of the Act. The trial judge ruled the hearsay evidence admissible against Clarke and MW and inadmissible against Wells and Stanley. Her Honour then ruled that the trial of Wells and Stanley be separate from the trial of Clarke and MW.

2 By way of interlocutory appeal, Clarke challenges the ruling made by the trial judge under s 137 of the Act. The Director of Public Prosecutions ('the Director') by way of interlocutory appeals seeks to challenge that ruling in respect of Stanley and Wells. Her Honour granted a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009, in respect of Clarke and Stanley, but not in respect of Wells.

3 Due to the nature of the issues to be determined, the trials of each accused have been adjourned sine die, pending the outcome of the interlocutory appeals.

4 The substance of the allegations made by CW (referred to hereafter as 'the Docklands incident') were summarised by her Honour as follows:

The complainant alleges that between November 16 and 19, 2014, he was taken against his will to an apartment [in the Docklands], tied up and kept there. He alleges that in that time, he was assaulted in ways which included dripping hot wax on his chest, pouring boiling water on his head and rubbing chilli oil on his wounds as well as being struck.

He alleged demands were made that he pay a $16,000 drug debt which he did not in fact owe and was twice in that time driven to his sister's house to obtain money from her, she giving him $1,000 each time. For convenience, these allegations will be termed, 'the Docklands incident.'[2]

5 CW made statements to police on 30 December 2014 and 3 February 2015. CW, a Chinese national, returned to Hong Kong in about April 2015 and told the informant he did not want to give evidence at the committal which took place in October 2015. CW was arrested by Hong Kong police on drug matters in July 2016. CW then contacted the informant and said he would give evidence against the accused. The Basha[3] inquiry commenced on 1 August 2016, with CW giving evidence by video link from Hong Kong.

6 Counsel for Wells cross-examined CW on August 1 and 3. Almost all of this cross-examination related to CW's credit. It should be noted that for 'matters of convenience', an understanding was reached between the accused that counsel for Wells would cross-examine CW as to credit on behalf of all four accused, it being assumed that CW would be giving evidence at trial.[4]

7 Owing to Wells being away sick on August 5, other counsel began their cross-examination of CW. Counsel for Clarke completed his cross-examination as to the allegations made by CW against Clarke. Counsel for Stanley almost completed cross-examination as to one topic only, which did not include the substantive 'Docklands incident'.[5]

8 After 8 August 2016, CW declined to give further evidence. The parties agreed that CW was unavailable for the purposes of s 65 of the Act. Pursuant to that provision, the prosecution sought to rely on existing evidence, namely two statements CW had earlier made to police. On 10 August 2016, they filed a Hearsay Notice containing 15 representations made by CW in his two police statements. No challenge has been made to the trial judge's ruling that the evidence could be admitted pursuant to s 65(2)(c) of the Act, a matter to which we shall return at the end of this judgment. The sole question raised in the three appeals concerns the ruling as to admissibility under s 137 of the Act.

9 Her Honour, in her ruling, summarised the extent to which CW had been cross-examined by each accused as follows:

1. [MW][6] - a completed cross-examination covering the Docklands incident, no cross-examination as to credit.

2. [Wells] - a completed cross-examination as to credit but none covering the Docklands incident. I say completed because examination of the transcript involving [counsel's] cross-examination showed that towards the end of the second day he had begun to move in a preliminary way to matters concerning his client only.

3. [Stanley] - partially completed cross-examination as to instructions but not covering the Docklands incident. No cross-examination as to credit.

4. [Clarke] - completed cross-examination covering the Docklands incident. No cross-examination as to credit.[7]

10 The law governing the resolution of these appeals is now relatively straightforward. Section 55 of the Act provides that 'relevant evidence' is that which, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. Relevant evidence is therefore admissible unless rendered inadmissible by an exclusionary rule. What is more, as was made clear by the reasoning of the majority in IMM v The Queen,[8] s 137 - with which the present appeals are concerned - calls for an 'evaluative judgment mandating exclusion' where the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. To cite the majority in IMM again, 'the assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest.'[9] What is to be taken at the highest, in other words, is 'the effect [the evidence] could achieve on the assessment of the probability of the existence of the facts in issue.'[10]

11 The prosecution case against Clarke is that he was 'guarding' the complainant during the Docklands incident, and taking a direct role in his false imprisonment, a fact which is also said to be probative of the applicant's role in the joint criminal enterprise. Relevant here is the fact that, during his period of alleged false imprisonment, the complainant CW made a call to emergency services on a mobile phone registered to Clarke.

12 CW states that, while he was being assaulted by the offenders, they demanded he pay them $16,000. This was allegedly a debt which he owed Wells. At the hearing a representation to this effect was expressly added to the hearsay notice. The complainant also stated that, about a month after the incident, Clarke (who the complainant knew as 'Paul' and described as 'the Korean guy') made him write a note saying that he would pay one of the offenders (who, on the prosecution case, is 'Stanley') $5,000 and bring him customers for drugs. The note was located at Stanley's apartment. At the hearing a representation to this effect was also added to the Hearsay Notice.

13 During Clarke's record of interview he admitted being present during the Docklands incident and, at one stage, participating in tying up CW. He further admitted that the complainant had used his phone and, during a later incident, that he had forced CW to write a note regarding a purported debt.

14 An alleged co-offender, ZG, pleaded guilty to offences arising from the Docklands incident and gave an undertaking to give evidence against the other alleged offenders. He made two police statements and gave evidence at the committal hearing. In ZG's statement, he identified 'the Korean guy' (submitted by the prosecution to be Clarke) as a participant in the assault on CW, during which time the latter was restrained on the chair. 'The Korean guy', he added, had used boiling water and a teaspoon, which he passed to Stanley, who poured the liquid onto CW's face causing severe burns to his forehead.

15 Clarke's presence during the Docklands incident is not disputed; however, the nature of his role is. During his record of interview Clarke asserted that, while CW was at the apartment, he had assisted him by buying him medication and food. That suggestion was made to CW during his cross-examination at the Basha hearing.

16 After dealing with the admissibility of the representations under s 65(2)(c) of the Act, her Honour turned to the application for the exclusion of the evidence of CW. Her Honour took into account that each of the accused, save for Stanley, had admitted that they were present at the apartment, at the relevant time, despite each denying involvement in the joint criminal enterprise. Her Honour considered that such admissions formed 'part of the circumstances to be taken into account in determining the probative weight of [CW's] statements.'[11]

17 The trial judge observed that counsel for Clarke had completed his cross-examination of CW on the Basha hearing and that such cross-examination was admissible pursuant to s 65(3)(a) and (b) of the Act. After referring to the applicant's submission that the use of cross-examination by a barrister unconnected to his client would 'present oddly' and 'reflect adversely' on Clarke, her Honour stated that any such 'oddness' could be overcome by proper directions given to the jury. Her Honour referred to the submission that she should exclude the evidence on the basis of the residual Haddara[12] discretion to exclude evidence that would prevent the accused from receiving a fair trial. Her Honour concluded:

For the reasons that I have outlined in my decision, pursuant to the s 137 discretion, and the admission of Mr Wong's statements pursuant to s 65(2)(c), that is the probative nature of those statements, and the fact that they have been subject to cross-examination, I am not satisfied that such an unfairness would prevail and the defence application under this ground is denied.[13]

18 Clarke submits that her Honour did not assess the probative value of CW's evidence and weigh that against the unfair prejudice that would result if such evidence were put before a jury. He submits, on the one hand, that the two representations that directly implicate him are of limited relevance and low probative value; and, on the other hand, that there is enormous prejudice in admitting hearsay evidence about people tying up, torturing and demanding money from CW as is detailed in the Hearsay Notice. He submits further that he would be disadvantaged insofar as he would be reliant on the advocacy of a co-accused's counsel who cross-examined CW as to credit over two days.

19 The submissions advanced by Clarke cannot be sustained.

20 The Act takes a liberal view of when hearsay evidence may be admissible where a witness is unavailable. That is intended to cover the position of a witness who refuses to give evidence.[14] The principle was addressed in Bray (a Pseudonym) v The Queen[15] where it was said:

It has long been understood that evidence that cannot be tested by cross-examination may nonetheless be led ... Parliament itself has lowered the barriers to the reception of hearsay evidence. Section 165 of the Act provides for the warnings that should be given in the case of unreliable evidence, which is defined to include hearsay evidence.[16]

21 As was observed in Fletcher v The Queen,[17] the assessment under s 137 of whether there is a real risk that the jury in some way could misuse the evidence is not made by considering the impugned evidence in isolation. The evidence which is relevant to Clarke's alleged joint participation includes his presence, his role and his conduct when others were assaulting CW. The evidence of ZG as to Clarke's conduct, and the admissions Clarke made as to his role, were of particular importance. It is evident from the entirety of the ruling - including the finding on s 65 that it was highly probable that the representations by CW were reliable - that her Honour gave careful attention to the probative value of the evidence.

22 Counsel for Clarke had completed his cross-examination of CW as to the Docklands incident. That cross-examination, which would also allow the jury to observe Clarke's demeanour, can be played in whole or in part to the jury.

23 As this Court observed in Darmody[18] there is a line of authority in New South Wales which says that the relevant danger of prejudice may be constituted if the evidence is admitted despite the opposing party's inability to cross-examine. Then the potential prejudice lies in the risk of the jury misestimating the weight of the evidence. Here, however, there was no suggestion that CW had said anything to directly implicate Clarke and which he would consequently wish to contest.

24 Although CW would not be available for further cross-examination by Clarke, her Honour did not regard any potential prejudice as outweighing the importance of CW's evidence for the prosecution case; and, as her Honour plainly understood, any degree of unfair prejudice was to be assessed in the light of warnings or directions that could remove or reduce that danger.[19]

25 Although only two of the representations relate specifically to Clarke, the entirety of CW's account of the Dockland incident is highly probative, since it establishes what was done to CW and how Clarke and the other offenders responded to such conduct. It is the acts of all of the co-offenders which constitute the joint enterprise and from which the jury will be invited to infer the willing joint participation of each. All of CW's hearsay representations are relevant and probative to that purpose.

26 The Director rightly submits that the evidence of CW and ZG are the cornerstones of the prosecution case. Contrary to the submission advanced on appeal, Clarke's counsel acknowledged several times before the trial judge that CW's evidence was crucial to the prosecution case against him. The two representations of CW are the only direct evidence from CW's statements which implicates Clarke although in his evidence on the Basha hearing, CW stated that Clarke tied him up. CW's evidence is important to the prosecution case in other respects. ZG describes the conduct of the 'Korean guy' in assisting in the tying up and torture of CW. Proof that 'the Korean guy' is Clarke comes from CW. Further, it is only through CW that the motive of the accused emerges; namely to recover a drug debt allegedly owed by CW. That in turn gives significance to the second representation relied upon by the Director. As the trial judge observed during submissions, without CW's evidence, the prosecution would be in 'quite some trouble'.

27 Clarke relies upon the fact that his trial has been severed from those of Stanley and Wells. He submits that there is therefore 'enormous' prejudice in admitting the hearsay evidence of CW of the co-offenders' conduct. However, this misconceives the notion of prejudice, since it is only unfair prejudice that gives rise to exclusionary considerations. Prejudice in this context does not arise from the inculpatory consequences of the proper use of the evidence. As Gleeson CJ stated in Festa v The Queen:

All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.[20]

28 The absence of Stanley and/or Wells from Clarke's trial does not affect the relevance or probative value of CW's evidence or give rise to any particular unfair prejudice. Everything done in Clarke's admitted presence during the Docklands incident remains relevant in proof of the joint enterprise and probative of Clarke's criminal liability. If the evidence of CW is admitted in the trials of Stanley and Wells then the severance ruling with respect to their trials may be revised by the trial judge. In this event, the basis upon which this prejudice is asserted would fall away.

29 Clarke submits that there would be considerable prejudice in allowing a trial to proceed in which the only way he could attack the credit of the complainant CW would be to play video footage of another barrister cross-examining CW on behalf of someone who is not in the dock. This submission is without merit. It is not at all uncommon for counsel at trial to rely upon cross-examination of a prosecution witness by different counsel who may represent another accused. Where cross-examination relates purely to credit, the identity of the cross-examiner will usually not be relevant. It has not been made clear to us what forensic disadvantage would flow if it were revealed, for example, that counsel other than Clarke's had obtained answers to questions at the committal bearing only upon credibility. In the event that the trial judge was persuaded of some prejudice, then, as Her Honour stated in her reasons, she could give directions to address that risk.

30 The probative value of CW's evidence is high. As against this there is the fact that little prejudice was identified, either before her Honour or on appeal, that was of such an order as to require the exclusion of the evidence under s 137 of the Act.

31 We would refuse Clarke's application for leave to appeal.

32 Turning now to Stanley, the Director has brought an application for leave to appeal against the interlocutory decision by the trial judge under s 137 of the Act[21] excluding hearsay evidence of seventeen previous representations[22] by CW.

33 The trial judge certified,[23] correctly in our view, that, if the impugned evidence is excluded, it will substantially weaken the prosecution case against Stanley. We have concluded, for the reasons given below, that it was not open to the trial judge to find that the danger of unfair prejudice outweighed the probative value of the impugned evidence.[24]

34 We would grant leave to appeal and allow the appeal.

35 It is noteworthy that, at the conclusion of the contested committal hearing in October 2015, at which ZG gave evidence, Stanley was discharged, there being insufficient evidence in the magistrate's view to establish Stanley's identity as one of the offenders. On 12 May 2016, ZG made a further statement to police in which he indicated, effectively, that Stanley was the offender he referred to in his police statement and at committal as GG. He said he had failed to recognise him during the committal because he had put on so much weight but he (ZG) made the connection afterwards. On the strength of this further evidence, the prosecution resurrected its case against Stanley, filing a direct indictment against him.[25]

36 Stanley told police in his record of interview that he has never gone by the name of GG. His defence is identity: he denies being at the Docklands apartment when the offences against CW were allegedly committed.

37 As previously mentioned, the prosecution alleges that Stanley was party to a joint criminal enterprise with the other accused. The prosecution therefore calls in aid statutory complicity under s 323(1)(c) of the Crimes Act 1958.[26] To make out that case, the prosecution relies, in the main, on the impugned evidence and the evidence of ZG as CW does not purport to identify Stanley as one of the offenders present. In order to appreciate the probative value of the impugned evidence, it is helpful to describe it, and the evidence of ZG, in some detail.

38 We will set out the evidence of the previous representations by CW in full, rather than relying on the short descriptions of CW's previous representations in the Hearsay Notice, which are not always accurate. The relevant previous representations ('PR.1-14,16 &17') in the extracts from CW's police statements, as modified by CW at the Basha hearing, are underlined.[27] The modifications made by CW at the Basha hearing are indicated in the extracts by italics and tracked deletions. Finally, we note that references in CW's previous representations to WT are a reference to Wells.

[43] I sat in the back and the girl drove us to the Docklands. I think it was on the corner of Bourke Street and Harbour Esplanade; the building had a big number 100 on it. (PR.1) The girl parked on the road outside and the man told me to go with them and the Chinese man grabbed me and pulled me out of the car. They took me into the lift and up to floor 20 room number 149. There were about five other people already in the apartment. One of them was the guy I had seen before. They took me inside and everyone's looking at me. One of the Vietnamese guys stand behind me and grab hold from behind. They then tied me up to a chair, they used a very thick phone cable from the apartment, and they just wrapped it around my arms and body. It was just a plastic chair I was in. (PR.2) This happened in the lounge room of the apartment.

[44] They took it in turns to hit me, some used chop sticks to grab my fingers and One of the men poked my fingers with a toothpick. Another man used chopsticks to clasp each of my 4 fingers on my right hand**. (PR.3)** Then a man used a long tubular-shaped sharp metal object to poke my left thigh. (PR.4) And some put ice on my back and some hit me from the front on my chest. One used a wet towel to cover my entire face (PR.5) my mouth and one used boiling hot water on my forehead, face and nose to pour on my head slowly all on my head and my nose slowly**.(PR.6)** After my forehead and nose were scalded and the skin came off, from my forehead and nose they used chilli oil and put it on the wound. They tortured me like this one after the other, not at the same time. They were just asking me when I was going to pay the money, the $16,000 to [WT]. (PR.7) The girl wasn't doing any of it, she was sitting on the sofa, every other person there was doing something to me. I was just telling them to stop, I was screaming but they were covering my mouth. I was feeling pain.; I wasn't scared That moment I was just thinking what's next, what's next.

[45] I was tied up for three days (PR.13),[28] the first night I was hit for five hours then they moved me to a bedroom, still tied to the chair**.(PR.8)** I went to sleep tied to the chair in this room. They did not give me any food or drink that night. Since I was thrown into the room no one came until it was day light which is when [WT] came, but he didn't came into the room, he just sat outside (PR.9) and look at me and pretend to sympathise and say, 'Who hit you like this?' Then he just left.

...

[49] On the morning of the fourth day I woke up and one of the Korean guys was asleep next to me. I saw his phone next to him on the bed and grabbed his phone. My arms were still tied together but I was able to get the phone. The phone was locked but I was able to call the emergency 112 number which connected**.(PR.10)** I told them someone catch me and want to kill me, they keep asking me where the place, I was telling them 100 Bourke Street, Room 2014. I was trying to be quiet. There wasn't a good signal and I had to ring two or three times. The Korean guy stayed asleep next to me. I had to speak louder because the signal wasn't very good (PR.11)[29] and so the others hear me and rushed in. They hit me and broke my nose. One fat Chinese guy named ZG hit me with his knee in my nose, (PR.12) this guy was about 30 years old. Some of the others there had told me he has mental issues and try not to upset him.

I told Polly I do not want to go see GG, because I know he is in the same company with [WT]. Two men then came into the house, the door was not locked. One of the guys pulled me to the car, I don't know his name. I have seen him before when I've been out with my friends, he was with another group of people, I never got to know him.

During the journey to Docklands, one of the guys left. After they stopped the car in front of the apartment at the Docklands, I said 'Don't take me there, I don't want to go there.' I repeat this after I got out of the car but the guy got me with his arm around my neck and took me there. It was the same guy that pulled me from my house out to the car. It was very quiet there and there was no caretaker at the apartment there, the guy released me once we were at the lift.

After we left the lift Polly was in front of me and the guy was at the back, when we got to the door the guy pushed me in. (PR.14)

39 As for the two previous representations by CW that were added to the Hearsay Notice orally, PR.16 is a repetition of PR.7[30] PR.17 appears in the last paragraph of CW's second statement and concerns a subsequent incident in December 2014:

I have been shown a photograph of a piece of paper with 'Ex 10' at the top. I recognise this writing as mine. I wrote it at Exhibition Street, Kenny who I used to live with was there and I was sending his stuff back to him. That place was rented by [GG], he wasn't there when I went to that place. The Korean guy, Paul was there. Kenny picked up whatever belonged to him and left, the Korean boy directed me up to the flat. He said that [GG] wanted to sort out some things about the money, he said he didn't want to do anything that would harm me. Paul made me write the note saying I was going to pay [GG] $5000 and bring him customers for drugs. (PR.17)

40 As regards ZG's evidence, we will extract below the relevant passages from his first and second statements to police.

41 We note that in the extract from ZG's first statement,[31] he refers to small Ben and Polly. Small Ben is CW and Polly is the accused MW.[32]

42 For ease of reference, we have underlined those assertions made by ZG which are supported, completely or partially, by the previous representations made by CW.

[O]ne day a follower of [WT], who I know is called [GG], called me to his place to chill and smoke some Ice, which is at Room 2014 of 100 Esplanade in Docklands (cf PR.1). I drove there and when I got inside I see [GG] and a male whom I know to be Korean and also an also an Asian male whom I don't by name, but who I know drives a white STI Subaru. So we sit down, I start chilling and when it gets very late I say that I'm going to go home. But [GG] tell me just wait for a bit and see who is going to be here. I ask him about what he means he tell me, Polly is going to take small Ben to my place and make him say sorry also pay money back. Because Polly is my friend I just wanted to wait and see, so after not long the door bell was ringing, Polly and a strong Chinese man came in with small Ben (cf PR.1). And small Ben looked very different as in hairstyle and face motion. They tell small Ben to sit down I ask Polly if he (small Ben) owes her money. Polly said it's been 16 hours when she hold small Ben in small Bens house.

So I ask Polly how much she owe she said only $900 but why so angry and keep him there so long. Polly said it's because he keeps lying and play around. So I get very angry, me and the STI guy, start tying small Ben in on the chair. And I use the USB phone cable to tie his hands together**.(cf PR.2****)** [GG] and the STI guy then use sticky tape to tie small Bens wrists. And then I see [GG] use the candle to dip small Ben's head and open his t-shirt and pour wax on his chest. I also see Korean guy boiling the water and use the teaspoon which he passes to [GG], then [GG] slowly dipping the hot water to small Ben's face**.(cf PR.6)** [GG] told me to get some chopsticks to put between his fingers and squeeze his fingers tight. I held one hand and [GG] held the other and we squeeze just once**.****(cf PR.3)** [GG] then used cold water, tell me to get a towel and to give it to the STI guy. STI guy then holds both small Ben's hands and [GG] puts the towel on small Ben's face (cf PR.5) and pours a little bit of cold water over the towel, to make small Ben very scared.

Small Ben was struggling but did not scream at that time. I ask [GG] why do this, its not going to hurt him. [GG] said to me that he want to keep him suffer and not hurting him. So after a while the strong Chinese man had enough, he use a sharp metal pen to stab small Ben's leg. He did this a lot of times.(cf PR.4) Small Ben started screaming so I put a towel over small Bens mouth to prevent him making a noise**.****(cf PR.5)** So after maybe a few hours we move small Ben into the bedroom. (cf PR.8) So the Korean guy look after him and we sit outside in the sitting room because [WT] came. [WT] sat down (cf PR.9) and said that you know why small Ben is scared because I bring someone to his place and gave him a lesson already. That's is why he is so scared to see me we ask him what did he do, [WT] said big guy break in the house, hold small Ben on the floor, use the burning pipe to hit small Ben's head and that's why I have to shave his hair. Small Ben shits himself in the room and open fire (gunshot) in his room.

I heard they were talking about how much money small Ben owes them[33] but there is nothing to do with me and the strong Chinese. So the strong Chinese guy went home and early morning I went home about 7am. I sleep until the next day 4am. I called [GG] and asked him what was going on there. He said small Ben was still there and asked me if I could buy some Macca's takeaway for them. Because that I was bored so I took a cab, bought 4 breakfast meals and took it to [GG]'s place.

When I buzz the bell there was a female who ask me who it was. I said in Chinese, Chinese takeaway as I thought it was Polly but actually when the door open I saw Christina, [WT]'s girlfriend. I asked her where was [GG], she said went to level 5, which is his girlfriend's house at that time [WT] was in the shower, so I went in the room to check on small Ben he was snoring and the Korean guy was snoring too.

So I leave the door closed and when [WT] finish the shower he came outside to the sitting room and tell me that he is going to go out and do something. He tell me to help [GG] look after the situation. [WT] leaves and only me and Christina in the room talking. Not long after [GG] came upstairs and start eating McDonalds and I open the bedroom door to give small Ben some breakfast, but I saw he was holding a mobile phone. I found out it was the Korean guys mobile phone. So [GG] came in to the bedroom and woke the Korean guy and tell him to check his phone. And when the Korean guy unlock his phone, his screen, there was 2 phone calls made. Both numbers were 112**.****(cf PR.10)** We don't know what that is, [GG] suddenly gets very anxious and asks small Ben why you stealing the phone. Small Ben said he just wanted to check the time. Then [GG] start hitting him in the face with an open hand. [GG] hit him about four times. And [GG] tells Christina and the Korean guy to go away. He thinks small Ben called the police. Small Ben keep saying he did not call the police he just wanted to check the time. Then [GG] tell me stay for a bit he will go downstairs to check if police came. So only me and small Ben was in the whole apartment. Small Ben ask if I can let him go and he will steal everything in [GG]'s apartment and we can split it in half. Then I smash him hard, in his nose, (cf PR.12) he gets bleeding and I get a towel to give it to him to stop the bleeding. I gave him smokes and take him to the toilet, then [GG] come up with his STI friend and told him what small Ben did before and tried to call the police. So me and [GG] start holding small Ben very tight with his arms behind his back and the STI guy, smash small Ben's ribs a lot of times. So STI guy said he got to go to school, so he left. Then only me and small Ben was in the room, [GG] stayed outside with his other friends who came up, male Chinese and female Chinese. Then [GG] talk to them for a while and then came into the bedroom and tell me to release small Ben and can clean up the mess and tell small Ben to wash his face. So at that stage I think they are going to let small Ben go free. But when I wanted to chuck the USB cables in the rubbish bin, [GG] said 'what you doing? I'm going to use it later'. Then I said to him good luck I'm going home. So I left about 9pm that night.

When I know GG he is really, really skinny, really short, maybe 160 centimetre. He is maybe 23, that is what I think, no older than 25 ...

...

I nearly didn't recognise GG when I last saw him at the court because he had put on so much weight on his face. Beforehand he didn't used to sleep much or eat food so his face was very skinny. GG was sitting opposite to where I was in the court and was sitting next to WT. GG was wearing a light coloured shirt on that day. I am 100 percent positive that the person I saw in the court was GG.

43 There was another assertion made by ZG at committal that is significant. Under cross-examination, ZG was asked the following questions and gave the following answers.[34]

Ben, where was he?---Ben was in the living room for a few hours then send him to the - what's it called, the bedroom and this person was the guard looking at the security - - -

What conversations were had?---Where?

Anywhere?---Conversation?

Yes?---It's about how much money he owe and how he going to pay back to them.

What money did he owe you?---Nothing.

...

What time did you leave?---Early, very early in the morning.

Where were all the others when - - - ?---They still there.

I beg your pardon?---They still there.

They were still there?---Yeah.

...

Did you keep track or do you tell us - prior to Ben coming to the flat who told you - had you been told anything about him?---Yeah, Polly told me he owed Polly $900 and [WT] told me he owed [WT] $16,000 (cf PR.7 & PR.17) and [GG] told me he owed him a bit. So they want him to pay back.

This was all before he came?---No, after he arrived.

Well - - - ?---Before he came, I know he owes [WT] money, that's it, that's all I know.

Who told you he was coming?--- [GG].

Was there any reason to doubt why he was coming on his own?---Of course he don't come on his own because he owes money, that's why he needs someone to grab him.

Trial judge's ruling under s 65(2)(c) of the Act

44 There was no dispute below or on appeal that CW was 'unavailable',[35] all reasonable steps having been taken by the prosecution to secure the attendance of CW but without success.

45 The trial judge ruled that the evidence of CW's previous representations was admissible under s 65 (2)(c) of the Act, which 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 -

(c) was made in circumstances that make it highly probable that the representation is reliable.

This ruling is not under challenge in these proceedings but see our comments at the end of this judgment.

Whether open to trial judge to exclude evidence under s 137

46 In applying s 137, the trial judge did not comment on the probative value of the impugned evidence.

47 Instead she focused on two considerations which, in her view, elevated the danger of unfair prejudice. The first consideration was the fact that Stanley, like Wells, did not get to cross-examine CW at the Basha hearing about the Docklands incident. Second, she said 'there is a real danger a jury could give [ZG's] evidence undue weight because of [CW's] unchallenged statements and vice versa.'[36] Whilst the trial judge acknowledged that CW's failure to cooperate with authorities, and some of his answers on the Basha hearing might provide a means of attacking his credit, in addition to the fact that he was criminally involved in the Docklands incident himself, the trial judge did not view this as negating the danger of unfair prejudice flowing from Stanley's inability to cross-examine CW in front of the jury. She did not believe that the danger of unfair prejudice could be cured by directions to the jury.

48 The Director submitted that the impugned evidence had high probative value, especially given the way the prosecution was putting its case, namely, that the accused were all parties to an agreement to commit the alleged offences.

49 As for the fact that Stanley, like Wells, did not get to cross-examine CW about the incident, the Director submitted that this did not prevent Stanley from mounting an attack on CW's credit. There was extensive cross-examination of CW at the Basha hearing which could be utilized by all accused at trial.[37] Wells, on behalf of all the accused, cross-examined CW extensively at the Basha hearing on credit issues and Clarke and MW cross-examined CW about the Docklands incident itself. In any event, given that Stanley's defence is that he was not present, the prosecution submitted that the fact that he did not get to cross-examine CW about the details of the Docklands incident is of reduced importance.

50 If the hearsay evidence is admitted, it will attract an unreliable evidence direction under the Jury Directions Act 2015.[38] In making their assessment of the weight to be given to CW's previous representations, the jury will no doubt be directed that Stanley has not had the opportunity of cross-examining CW and that the jury has not had the benefit of seeing the evidence of the complainant tested in the usual way. Such directions can be expected to cure the danger of unfair prejudice from the fact that CW will not be available for cross-examination.

51 The fact that the previous representations of CW and the evidence of ZG re-inforce one another may give rise to prejudice, but not unfair prejudice. The trial judge therefore took into account an irrelevant consideration in assessing the danger of unfair prejudice.

52 Stanley submitted that the probative value of the evidence was weak. The ruling, by an experienced criminal trial judge, who had had the opportunity of seeing CW give evidence over several days, was 'proper and reasonable - indeed, unremarkable'. This Court must apply the principles in House v The King[39] in reviewing her decision: all relevant matters were considered by the trial judge and no irrelevant considerations were taken into account. She was well aware that the prosecution case was based on the doctrine of complicity. Her Honour's conclusion - that the danger of unfair prejudice outweighed the probative value of the evidence - was one that was open to her, even if this Court may have ruled differently.

53 Although Stanley's defence is that he was not present during the incident, the fact that he cannot cross-examine CW about the incident itself is significant. He is denied the opportunity of cross-examining CW and adducing inconsistencies between CW's account and ZG's account of the Docklands incident which might cast doubt on the reliability of ZG's identification of Stanley as the offender GG.

54 The degree to which the impugned evidence supports other evidence or is supported by other evidence increases its probative value. The fact that the impugned evidence does not identify Stanley as one of the offenders does not mean the probative value of the impugned evidence is weak. It is not to be viewed in isolation. The similarities in CW's account and ZG's account are plentiful and detailed. ZG's credibility in the eyes of the jury is likely to be considerably enhanced by the consistency of his account with that of CW, and that is likely to influence, to a significant extent, the jury's assessment of the reliability of ZG's identification of Stanley as one of the offenders. We consider the probative value of the hearsay evidence to be substantial.

55 Unfair prejudice does not arise from the tendency of evidence to further inculpate the applicant. A relevant prejudice lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use.[40] The danger with hearsay evidence where the representor is unavailable for cross-examination is that the jury will overvalue the evidence. But this is not a case where there has been no testing of the representor's evidence. There was considerable cross-examination of CW at the Basha hearing, even though Stanley did not get to cross-examine him about the Docklands incident. Wells, on behalf of all the accused, cross-examined CW extensively on credit issues. Clarke and MW cross-examined CW about the incident itself. Whilst having this material at his disposal is not the same as Stanley having the opportunity to cross-examine CW in front of a jury, it does reduce to some extent the danger that the jury will overvalue the impugned evidence.

56 As a general rule, it is assumed that juries follow directions. There is no reason to think a jury will not heed the unreliable evidence direction which will presumably be requested and given under the Jury Directions Act 2015 with regard to the impugned evidence. Such directions are capable of curing any danger that the absence of any further challenge to CW's evidence will result in CW's evidence being given more weight than it deserves.

57 We are consequently of the view that it was not open to the trial judge to find that the danger of unfair prejudice outweighed the probative value of the evidence. Leave to appeal should be granted and the Director's appeal upheld.

58 Turning now to Wells, the trial judge also excluded the impugned evidence in his trial under s 137 of the Act. However, she refused to certify that, if the impugned evidence is excluded in his trial, it will substantially weaken the prosecution case against him.

59 The Director applies under s 296 of the Criminal Procedure Act 2009 for a review of the trial judge's refusal to certify and if successful, for leave to appeal her Honour's interlocutory decision under s 137.

60 For the reasons given below, the Director's application for review of the trial judge's refusal to certify should be upheld, leave to appeal should be granted and the appeal allowed.

61 It will be recalled that at the Basha hearing, Wells' cross-examination of CW was limited to credit issues. Like Stanley, Wells did not cross-examine CW about the Docklands incident.

62 Unlike Stanley, it is not alleged by the prosecution that Wells joined in the physical assault of CW at any stage, or threatened him. Rather it is alleged that Wells was a party to an agreement that these things be done to CW by others, including Stanley and ZG. It is put that the alleged offences were committed on Wells' behalf because CW had failed to pay Wells $16,000 which Wells claimed CW owed him. The case against Wells is circumstantial.

63 Wells admits that he was briefly present at the Docklands apartment during the relevant period but denies involvement in any of the offending against CW.

64 The prosecution relies on the impugned evidence as a whole to establish that there was a criminal agreement pursuant to which CW was imprisoned and assaulted but in terms of tying Wells to that agreement, it relies on evidence of the following previous representations in particular:

• Evidence of CW's previous representation that on the first night (16 - 17 November 2014) when he was taken to the apartment and was tortured, 'they were just asking me when I was going to pay the money the $16,000 to [WT].' (PR.7 & PR.16)
• Evidence of CW's previous representation that on the first morning of his imprisonment (17 November 2014), Wells attended the apartment. 'Since I was thrown into the room no

• one came until it was day light which is when [WT] came but he didn't come into the room, he just sat outside.' (PR.9)

65 The prosecution also relies on evidence from ZG. It will be recalled that in his first statement ZG said that he observed Wells at the apartment on two occasions during the relevant period:

So after maybe a few hours we move small Ben into the bedroom. So the Korean guy look after him and we sit outside in the sitting room because [WT] came. [WT] sat down and said that you know why small Ben is scared because I bring someone to his place and gave him a lesson already. That's is why he is so scared to see me we ask him what did he do, [WT] said big guy break in the house, hold small Ben on the floor, use the burning pipe to hit small Ben's head and that's why I have to shave his hair. Small Ben shits himself in the room and open fire (gunshot) in his room.

I heard they were talking about how much money small Ben owes them[41] but there is nothing to do with me and the strong Chinese. So the strong Chinese guy went home and early morning I went home about 7am.

66 ZG then describes having a sleep at his home until about 4am the next day (which would make it 18 November 2014) after which he returned to the Docklands apartment, where he encountered Wells a second time:

When I buzz the bell there was a female who ask me who it was. I said in Chinese, Chinese takeway as I thought it was Polly but actually it when the door open I saw Christina, [WT]'s girlfriend. I asked her where was [GG], she said went to level 5, which is his girlfriend's house at that time [WT] was in the shower, so I went in the room to check on small Ben he was snoring and the Korean guy was snoring too.

So I leave the door closed and when [WT] finish the shower he came outside to the sitting room and tell me that he is going to go out and do something. He tell me to help [GG] look after the situation. [WT] leaves and only me and Christina in the room talking.

67 It will be recalled that, at committal, ZG said Wells told him that CW owed him $16,000:

Did you keep track or do you tell us - prior to Ben coming to the flat who told you - had you been told anything about him?---Yeah, Polly told me he owed Polly $900 and [WT] told me he owed [WT] $16,000 and [Stanley] told me he owed him a bit. So they want him to pay back.

This was all before he came?---No, after he arrived.

Well - - - ?---Before he came, I know he owes [WT] money, that's it, that's all I know.

68 The trial judge stated that the hearsay evidence was only of 'peripheral importance to the prosecution case because of the nature of the evidence against [Wells] in and of itself.'[42] It appears that the trial judge considered that the evidence of CW's previous representations did no more than put Wells at the apartment, and for a brief period at that. Viewed in that way, it was not of 'major importance' or 'very important', as the authorities require it to be to justify certification.[43]

69 The Director submitted that the importance of the impugned evidence derived from its capacity to support the evidence of ZG, whose evidence would attract an unreliable evidence direction under the Jury Directions Act 2015, given that he was criminally concerned in the Docklands incident. ZG was also vulnerable to attack by the defence because he has an extensive criminal history and had used ice at the time of the incident and at the time of making his statements.

70 The Director further submitted that the consistency between CW's previous representation that demands were being made of him whilst he was being assaulted to pay $16,000 owing to Wells and ZG's evidence that Wells told him that CW owed

70 him $16,000 lent the evidence of CW's previous representations particular importance.

71 Wells submitted that only one of CW's previous representations (PR.7) directly concerned Wells and it went no further than establishing mere presence by Wells at the apartment for a brief period. It was submitted that, as such, the impugned evidence could not be viewed as evidence of 'major importance'.

72 There are many similarities between CW's account and ZG's account of what happened to CW during the Docklands incident. Two of the previous representations mention Wells, that is, PR.7 ('They were just asking me when I was going to pay the money, the $16,000 to [WT]') and PR.9 ('Since I was thrown into the room no one came until it was day light which is when [WT] came, but he didn't came into the room, he just sat outside.' Both of these previous representations correspond to assertions made by ZG about Wells telling him CW owed him $16,000 and Wells attending the apartment on 17 November 2014. But it is not just these two representations which support ZG's account. Each of the previous representations which describe what others did to CW, and which match what ZG says was done to CW, are capable of enhancing, to a considerable degree, the credibility and reliability of ZG in the eyes of the jury.

73 In circumstances where the complainant is unavailable, and the principal witness for the prosecution is a co-offender, the support that the impugned evidence gives ZG's account assumes major importance. Whilst some juries might view the combination of the impugned evidence and ZG's evidence as establishing no more than mere presence, it would be reasonably open to a jury to infer much more. For one thing, ZG's evidence that Wells instructed him to help Stanley look after 'the situation' goes a long way, if accepted, to establishing that Wells was criminally involved. The chances of such acceptance are much higher if the impugned evidence is admitted. The trial judge should have certified.

Whether open to trial judge to exclude evidence under s137

74 The trial judge found that the danger of unfair prejudice outweighed the probative value of the impugned hearsay evidence for the same reasons as in the trial of Stanley. In short, the impugned evidence would draw support from ZG's evidence and vice versa creating a danger that the impugned evidence would be overvalued by a jury. Wells would not be able to adequately challenge the impugned evidence because Wells was not able to cross-examine CW at the Basha hearing about the Docklands incident. The danger of the jury overvaluing the impugned evidence could not be cured by direction.

75 The Director relied on the same submissions it made regarding Stanley. In addition, it was submitted that the fact that Wells did not get to cross-examine CW at the Basha hearing about the Docklands incident is of reduced significance, because CW does not allege that Wells physically assaulted or threatened him at all.

76 In his written submissions, Wells did not expressly deal with the s 137 issue, concentrating instead on the appropriateness of the trial judge's refusal to certify. In oral submissions, Wells submitted that the impugned evidence had little probative value in that it merely indicated that Wells was present during the Docklands incident for a limited time. It did not indicate that he was party to, or participated in carrying out, any criminal agreement regarding CW. Wells also submitted that the trial judge was right to regard the support that ZG's account gave CW's account and vice versa as unfairly prejudicial. Wells submitted that the trial judge's ruling under s 137 was open to her.

77 If the jury accepted ZG's evidence about: (a) Wells telling him that CW owed him $16,000; (b) Wells being at the apartment on both the 17 and 18 November 2014 when CW was allegedly a prisoner there; and (c) Wells telling ZG when he (Wells) left the apartment on 18 November to help Stanley look after 'the situation', it would be open to the jury to infer that Wells was party to the criminal agreement in respect of CW. The likelihood of the jury accepting ZG's evidence would be considerably increased by the impugned evidence, given the many similarities between CW's account and ZG's account. For this reason, the probative value of the hearsay evidence is substantial, even though CW does not allege that Wells assaulted him or instructed anyone to assault him. It is only if one wrongly ignores the capacity of CW's previous representations to support ZG's account that one could regard the probative value of the impugned evidence as weak.

78 There is no reason to think that the danger of unfair prejudice could not be cured by the standard jury directions, especially as the danger in this case is somewhat less than usual because Wells has the option of utilizing the extensive cross-examination of CW at the Basha hearing.

79 In our view, it was not open to the trial judge to find that the danger of unfair prejudice outweighed the probative value of the evidence.

Conclusion regarding Clarke, Stanley and Wells

Whether trial judge wrongly took account of ZG's evidence in applying s 65(2)(c)

80 As previously mentioned, none of the accused in these interlocutory appeals challenged the trial judge's ruling as to the admissibility of the impugned hearsay evidence under s 65(2)(c). In reaching her conclusion that s 65(2)(c) of the Act was satisfied in respect of each previous representation by CW, the trial judge took into account the evidence of ZG, which largely supported the previous representations made by CW. Contrary to the submission made by all parties to the trial judge, ZG's evidence did not bear upon the circumstances in which CW made his police statements. To take ZG's evidence into account was to evaluate the reliability of each of CW's previous representations in a general way. Section s 65(2)(c) requires the reliability of each previous representation to be evaluated having regard only to the circumstances in which each previous representation was made. Although the authorities permit a court to have regard to other previous representations, or other matters to the extent that they bear upon the circumstances in which the impugned previous representation was made,[44] they do not permit a court to take into account other evidence which tends only to address the asserted fact.[45] When the Court raised this matter with the parties, the Director conceded that it was not open to the trial judge to take account of ZG's evidence in applying s 65(2)(c).[46] That concession was an appropriate one. It was foreshadowed that the trial judge will be asked to revisit her ruling under s 65(2)(c) in the light of that concession.

[1] To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and two respondents.

[2] DPP v [Clarke, Stanley, Wells and MW] (Unreported, County Court of Victoria, Gaynor J, 16 August 2016) ('Ruling') 358-9.

[3] R v Basha (1989) 39 A Crim R 337, 339.

[6] Co-offender who is not a party to this appeal.

[8] (2016) 257 CLR 300, 306 [16] ('IMM').

[12] Haddara v The Queen [2014] VSCA 100; (2014) 43 VR 53, 71 [53], 75 [65] (Redlich and Weinberg JJA).

[14] R v Darmody [2010] VSCA 41; (2010) 25 VR 209, 214 [24] ('Darmody').

[15] (2014) 46 VR 623 (Maxwell P, Weinberg and Santamaria JJA).

[16] Ibid 640 [73]-[74] (Santamaria JA) (citations omitted).

[17] (2015) 45 VR 634, 648 [70] (John Dixon AJA, Weinberg and Priest JJA agreeing).

[18] [2010] VSCA 41; (2010) 25 VR 209, 210 n 6**.**

[19] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; R v Aujla (Ruling No 5) [2012] VSC 602.

[20] (2001) 208 CLR 593, 603 [22].

[21] The trial judge's antecedent ruling that the impugned evidence is admissible hearsay in Stanley's trial under s 65(2)(c) of the Act is not the subject of challenge but see our comments in this regard at the end of the judgment.

[22] Fifteen previous representations were included in the prosecution's hearsay notice and two were added by the prosecution in oral submissions to the trial judge, as will be discussed further below.

[23] Pursuant to s 295(3)(a) of the Criminal Procedure Act 2009.

[24] The principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply in an appeal against an interlocutory decision under s 137: McCartney v The Queen (2012) 36 VR 1, 11-12 [47]-[51].

[25] Sections 3 ('direct indictment') and 161, Criminal Procedure Act 2009.

[26] The prosecution did not expressly refer to s 323(1)(c) of the Crimes Act 1958 but it, in combination with s 324, is the statutory equivalent of the common law doctrine of 'joint criminal enterprise', to which the prosecution did refer. It follows that in relation to each offence alleged against Stanley, the prosecution must prove that: (a) Stanley was party to an agreement, arrangement or understanding ('agreement') to commit the offence in question; (b) Stanley participated in the carrying out of that agreement (R v Semaan (Ruling 7) [2016] VSC 170); (c) a party (or parties) to the agreement committed the offence pursuant to that agreement; and (d) at the time of entering the agreement, Stanley intended that the offence in question be committed. In other words, the prosecution must prove agreement, participation, performance and intent. As s 324B makes clear, it is not necessary for the prosecution to prove the particular role played by Stanley.

[27] The prosecution in its Hearsay Notice indicated that it relied on the evidence of 13 previous representations (PR.1-13) by CW in his first statement to police dated 30 December 2014. The prosecution also indicated that it relied on a previous representation (PR.14) made by CW in his third statement dated 3 February 2015. Another representation referred to in the Hearsay Notice (PR.15), which appeared in Stanley's second statement dated 14 January 2015, is not significant in Stanley's trial. Two other previous representations by CW in his police statements (PR.16 & PR.17) were added orally to the Hearsay Notice.

[28] Although out of sequence, this is labelled previous representation No. 13 in the prosecution's Hearsay Notice.

[29] This does not correspond exactly to the description of PR.11 in the hearsay notice.

[30] In the prosecutions' summary of contentions, PR.16 is described thus: 'The complainant states that when he was being assaulted by the offenders ... demands were being made for $16,000 to be paid to Wells (n: Statement dated 30 December 2014, [44]).'

[32] Based on what ZG said at the committal at 45.12.

[33] We note that this reference by ZG to hearing the others talking about how much small Ben owed them is consistent with ZG's evidence at committal that [WT] said that small Ben owed him $16,000.

[35] As that term is defined in c 4(1)(f) of Pt 2 of the Dictionary of the Act.

[37] If such previous representations were to be adduced by the accused for a hearsay purpose, they could be admitted under s 65(8).

[38] Sections 31(1)(a) and 32 of the Jury Directions Act 2015. ZG's evidence will also attract an unreliable evidence direction because he was 'criminally concerned in the events giving rise to the trial.'

[39] [1936] HCA 40; (1936) 55 CLR 499.

[40] Festa v The Queen (2001) 208 CLR 593, 603 [22] (Gleeson CJ).

[41] We note that this reference by ZG to hearing the others talking about how much small Ben owed them is consistent with ZG's evidence at committal that WT said that small Ben owed him $16,000.

[43] ZL v The Queen (2010) 208 A Crim R 325, 329 [20] (Nettle JA): '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' (emphasis in original). See also DPP v Martin (a Pseudonym) [2016] VSCA 219 [117].

[44] For example, see Sio v The Queen [2016] HCA 32; (2016) 90 ALJR 963, 975 [71] ('Sio'); Azizi v The Queen (2012) 224 A Crim R 325, 336-7 [46]-[50] ('Azizi').

[45] Azizi (2012) 224 A Crim R 325, 337 [50] quoting Mason P in R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603, 616; see also the Uniform Evidence Law Report 1995, ALRC 102 at [8.52] to [8.58].

[46] Having regard to Azizi ( 2012) 224 A Crim R 325, 336-7 [49]-[51] and Sio [2016] HCA 32; (2016) 90 ALJR 963, 972-3 [51]-[61].