DPP v Asling

Supreme Court of Victoria|2017-02-09|Before: KAYE JA

CRIMINAL LAW - Murder - Evidence - Hearsay evidence - Maker of statements not available - Evidence Act 2008 s 65(2)(b), (c), (d), s 66A, s 137.

2 The prosecution alleges that the murder of Kinniburgh was carried out pursuant to a joint criminal enterprise involving the accused together with Terrence Blewitt, Carl Williams, and another person ('witness A'). Blewitt and Williams are both deceased. The prosecution intends to adduce evidence from a witness ('witness P') as to statements made to him by Blewitt implicating the accused in the offence. The prosecution also intends to adduce evidence from Detective Sergeant Sol Solomon, of the Victorian Homicide Squad, as to a conversation that he had with Williams in Barwon Prison, in which Williams also implicated the accused in the offence.

3 The offence occurred in Belmont Avenue, Kew shortly after midnight on 13 December 2003, when Kinniburgh arrived at his home in his vehicle. The evidence of eyewitnesses indicate that two men were involved in the murder. The prosecution case is that the killing was procured by Williams, and was carried out by Blewitt and the accused.

4 According to witness A, Blewitt was introduced to Williams in 2003. Subsequently, a number of meetings took place in which Williams discussed with Blewitt, witness A and the accused, the activities of Lewis Moran and Kinniburgh, both of whom were arch enemies of Williams. In the course of those conversations, according to witness A, Williams engaged Blewitt and the accused to murder Moran. For that purpose, witness A provided two handguns to Blewitt and the accused.

5 According to witness A, in the ensuing months, Blewitt and the accused made a series of excuses for their inability to kill Moran. As a consequence, Williams became frustrated, and told them that if they could not kill Moran, then they should kill Kinniburgh.

6 Another witness, witness P, was a friend of both the accused and Blewitt, at the time of the offence in question. According to witness P, Blewitt, the accused and he had access to and used a dark green Hyundai Excel vehicle owned by a mutual friend. Further, on 7 December 2003, a blue Ford Falcon sedan was stolen from outside a property in Hambleton Street, Middle Park. The evidence of witness P is that the accused stole that vehicle with witness P's assistance, and that it was intended that the vehicle be used in future robberies and burglaries. As part of the hearsay evidence, that the prosecution seeks to adduce, witness P will state that, on one occasion in 2003, he was told by Blewitt that Williams wanted Kinniburgh and another person killed. The prosecution also intends to adduce evidence from witness P that, on another occasion, Blewitt told him that he and the accused had been offered the contract to kill Kinniburgh and others.

7 On the evening of Friday 12 December 2003, Kinniburgh attended at a hotel in Caulfield East. He arrived home in Belmont Avenue, Kew at 12.03 am on 13 December. The prosecution case is that the accused and Blewitt were waiting in ambush for Kinniburgh at that location. After Kinniburgh parked his vehicle outside his home address and alighted from his vehicle, gun shots were heard. Witnesses, who heard those shots, observed two males escaping from the scene in a dark green Hyundai Excel vehicle. Shortly after the shooting of Kinniburgh, a blue Ford Falcon was found alight in the rear of a house at a location a short distance from the scene of the murder.

8 Witness P will give evidence that, on one morning (which evidence demonstrates to be 13 December 2003) at 6.00 am, he was at his home in Caulfield when he was awoken by the arrival of the accused and Blewitt. It appeared that both men had been up all night. Witness P turned on the television, and a breaking news story came on about the shooting of Kinniburgh outside his home in Kew early that morning. Witness P said that he looked at the two men, and shook his head, and in response they raised their eyebrows but said nothing.

9 In his statement to the police, witness P has described a number of subsequent conversations which he had with Blewitt alone, and with the accused, in which they each confirmed that they had been involved in the killing of Kinniburgh.

10 The prosecution has given notice, pursuant to s 67 of the Evidence Act 2008 ('the Act'), that it intends to adduce hearsay evidence of a number of representations made by Blewitt to witness P, and of the representations made by Williams to Detective Sergeant Solomon in Barwon Prison. In summary, it is proposed to adduce the following hearsay evidence from witness P:

(1) Some time after the murder of Jason Moran (on 21 June 2013), in the course of a conversation in the Clare Castle Hotel, Blewitt told witness P that Williams wanted Kinniburgh and others dead. Blewitt made that remark shortly after Kinniburgh and Lewis Moran walked into the hotel.

(2) Shortly before 13 December 2003, while having a conversation with witness P at the Angel Hotel in Malvern, Blewitt told witness P that he and the accused had been offered the contract to kill Kinniburgh and possibly others. He said that the offer had been made to them in a meeting with Carl and George Williams at a hotel in Taylors Lakes, and that the contract price was $150,000.

(3) A few days after 13 December 2003, following the murder of Kinniburgh, Blewitt told witness P how the killing had taken place. He said that they had used the Ford motor vehicle, previously stolen by witness P and the accused, and another vehicle (which witness P understood to be the accused's green vehicle). Blewitt said that he and the accused had waited in Belmont Avenue for Kinniburgh to arrive home. The accused acted as a decoy and yelled out 'Oi dog!' as Kinniburgh exited his vehicle. Kinniburgh fired shots in the accused's direction. Blewitt then jumped out of some bushes, and shot Kinniburgh in the back of the head. He then shot Kinniburgh again when he was on the ground. Both shots were fired at close range from a revolver. Blewitt said that the accused and he then made their way to a lane way, where the stolen Ford was burnt.

(4) Blewitt told witness P that he and the accused had attended at the Caulfield Racecourse Tabaret after the killing. The hearsay notice specifies this representation as separate to the preceding representation number 3, but it appears from witness P's statement that he says that both representations were made in the one conversation between himself and Blewitt.

(5) In the months following 13 December 2003, Blewitt told witness P that on the day after the murder he had disposed of the gun used to kill Kinniburgh by throwing it into a body of water from a meshed steel platform on the left hand side of Ballarat Road on the way to Ballarat.

(6) Shortly after 13 December 2003, Blewitt told witness P that he had collected some of the contract money from Carl and George Williams after the killing, but he said that it was only a portion of the agreed fee.

The hearsay evidence - Detective Sergeant Solomon

11 The hearsay evidence, that the prosecution seeks to adduce from Detective Sergeant Solomon and Detective Senior Constable Davey, is contained in a statement by Sergeant Solomon. Between 22 December and 29 December 2008, in company with Detective Senior Constable Davey, Sergeant Solomon interviewed Williams in prison in relation to the murders of Terrence and Christine Hodson at Kew in May 2004. At that time Williams was serving a life sentence, with a minimum term of 35 years, at Barwon Prison, having been convicted in May 2007 of three counts of murder and conspiracy to murder.

12 After Williams had completed two statements in relation to that matter, he spoke to the two police members about the murder of Kinniburgh, which was then unsolved. He said that he was willing to make a statement about his knowledge and involvement in the matter, but that he would not do so until he ascertained the outcome of his cooperation in the Hodson matter. He also said that he would require an indemnity in respect of any criminal liability for the killing of Graham Kinniburgh. Williams told Solomon and Davey that he was prepared to state: that the accused and Blewitt were the 'shooters'; that Blewitt was dead; that Williams had provided the firearm, and had procured the murder of Kinniburgh. Williams stated that he would need an indemnity before he made a statement and gave evidence, and that he had further knowledge that he would provide at a later time. No further statement was taken from Williams in relation to the Kinniburgh matter, as Williams was subsequently murdered in prison in April 2010. In cross-examination, at the committal proceeding, Sergeant Solomon stated that his statement was a complete record of what Williams had told him about the matter.[1] He stated that the conversation with Williams was not recorded other than in his brief notes.

13 In the course of argument, I raised a number of matters which, I consider, might prevent the evidence of Williams' representations to the police, from being admissible. At the request of counsel, I deferred further argument, and ruling, in relation to that issue in order that the prosecution might further consider those matters.

Evidence Act s 65, 66A

14 The prosecution contends that the hearsay evidence, set out above, is admissible under s 65(2)(b), (c) and (d), and s 66A, of the Act. In particular, the prosecution contends that the first representation to witness P is admissible under s 66C of the Act, or alternatively s 65(2)(c). The prosecution primarily relies on s 65(2)(d) of the Act to support the admissibility of the second to sixth representations made to witness P, but also submits that those representations are admissible pursuant to either s 65(2)(b) or s 65(2)(c).

15 The provisions relied on by the prosecution, are contained in Division 2 of Part 3.2 of the Act. Section 62(1) provides that the exceptions, to the hearsay rule, contained in that Division, only apply to 'first-hand hearsay', that is, to a representation made by a person who had personal knowledge of the fact or facts asserted in the representation. Section 62(2) provides that a person has personal knowledge of an asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

16 The sections relied on by the prosecution are as follows:

65 Exception - criminal proceedings if maker not available

...

(2) 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 -

...

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

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

(d) was -

(i) against the interests of the person who made it at the time at which it was made; and

(ii) made in circumstances that make it likely the representation is reliable.

66A Exception - contemporaneous statements about a person's health etc.

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

17 Section 65(7) defines the circumstances in which a representation is taken to be against the interests of the person who made it for the purposes of s 65(2)(d). Subsection (7) provides:

(7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends -

(a) to damage the person's reputation; or

(b) to show that the person has committed an offence for which the person has not been convicted; or

(c) to show that the person is liable in an action for damages.

18 As already mentioned, in order that hearsay evidence be admissible under s 65 of the Act, or any other provision contained in Part 3 Division 2 of the Act, the previous representation, that is sought to be adduced in evidence, must be demonstrated to be 'first hand' hearsay. Thus, the prosecution must first demonstrate that the representation was made by a person who had personal knowledge of the asserted fact, or who might reasonably be supposed, in the circumstances, to have had personal knowledge of that fact. That is, it must be evident from the representation, and from the surrounding circumstances, that the person who made the representation, that is sought to be relied on, had actual knowledge of the facts asserted.[2]

19 Section 65(2)(b) and s 65(2)(c) have been discussed in a number of decisions of appellate courts, including by the Full Court of the Federal Court in Conway v The Queen[3] and in Williams v The Queen,[4] by the New South Wales Court of Criminal Appeal in R v Ambrosoli[5] and Harris v The Queen,[6] and by this Court in Azizi v The Queen.[7]

20 In Conway, the Full Court expressed the view that s 65(2)(b) appears to have had its origins in an aspect of the common law doctrine of res gestae. In particular, the court construed the word 'when' to require strict contemporaneity between the making of the representation and the occurrence of the fact asserted in the representation.[8] On the other hand, the addition of the expression 'shortly after', in subparagraph (b), is a 'significant departure' from that traditional doctrine.[9] In particular, the court considered that the phrase 'shortly after' is intended to exclude evidence of a recollection that might have 'faded in its accuracy' so as not to have remained clear in the mind of the representor.[10]

21 In a subsequent decision of the Full Court in Williams,[11] and in the decisions of the New South Wales Court of Criminal Appeal in Ambrosoli[12] and Harris,[13] it was considered that the requirement, that the statement be made 'shortly after' the events in question, was designed to ensure that the evidence, that was admitted, was unlikely to be a fabrication. In Harris,[14] Studdert J (with whom Grove and Whealy JJ agreed) adopted the following passage from the joint judgment of Whitlam, Madgwick and Weinberg JJ in Williams:[15]

... it would be a mistake, in determining whether a statement has been made 'shortly after', to over-emphasise such matters as whether the events in question were 'fresh' in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during ('when') or under the proximate pressure of ('shortly after') the occurrence of the asserted fact ... .

22 An issue has arisen in the authorities as to the precise ambit of the 'circumstances' which are relevant for the purposes of s 65(2)(b) and (c). Each provision, expressly, focuses on the circumstances in which the particular representation was made.[16] Nevertheless, it has been accepted that the 'circumstances' include previous, or subsequent, statements or conduct of the person, who made the representation, to the extent to which they reflect on the reliability of the circumstances of the making of the particular hearsay representation.[17]

23 Section 65(2)(c) does not, on its face, require any temporal connection between the making of the representation and the occurrence of the asserted fact. However, as noted in Conway,[18] the requirement in s 65(2)(c), that it be 'highly probable' that the representation be 'reliable', is an 'onerous one'.

24 In R v Suteski,[19] the New South Wales Court of Criminal Appeal considered the operation of s 65(2)(d) of the Act. In that case, the prosecution alleged that the appellant was involved in a joint criminal enterprise with Sakisi and others to harm the appellant's employer. Before he was charged with any offence, Sakisi participated in a recorded interview with the police, in which he admitted his involvement in the enterprise, and in doing so implicated the appellant. Sakisi was not available to give evidence at trial. The Court of Criminal Appeal upheld the decision of the trial judge to admit parts of the recorded interview of Sakisi on the trial of the appellant. In determining the admissibility of those statements pursuant to s 65(2)(d) of the Act, Wood CJ at CL (with whom Sully J and Howie J agreed) held that any statement made by Sakisi, in which he tended to implicate himself in the joint criminal enterprise with the appellant, came within s 65(2)(d). Thus, it was held, s 65(2)(d) is not restricted to statements in which the maker of the representation only inculpates himself (or herself), but extends to statements inculpating the maker of the representation and the accused person. His Honour also considered that each representation by Sakisi should not be considered in isolation, but, rather, should be considered in context, in association with other answers given by him, which, when read together, constituted a relevant admission against interest by Sakisi.[20]

25 In its recent decision in Sio v The Queen,[21] the High Court considered the construction of s 65(2)(d)(ii) of the Act. The Court emphasised that it is important to focus on the precise representation that is sought to be relied on by the prosecution, and to determine whether, in the circumstances in which that representation was made, it is likely that it was reliable. The High Court specified that, in determining the admissibility of evidence pursuant to that subsection, a court should not approach the issue in a 'compendious' manner by reference to an overall impression as to the general reliability of the statements made by the representor.

26 In Sio, the appellant had driven a co-offender, Filihia, to premises, which Filihia entered alone, armed with a knife, intending to commit a robbery. In the course of an altercation in the premises, Filihia stabbed and killed an employee of the premises. Filihia removed some of that employee's possessions, left the premises, and was driven away by the appellant. The appellant was charged on indictment with the murder of the employee and with armed robbery with wounding. He was acquitted of the murder, but convicted of the armed robbery. One of the questions, determined by the High Court, concerned the admissibility of statements made by Filihia to the police implicating the appellant in the armed robbery. The police had conducted a recorded interview with Filihia, in the course of which he said that he had obtained the knife from the appellant who had it in his vehicle. In a statement to the police, Filihia stated that the appellant had put him up to robbing the premises, and that he had given the knife to Filihia.

27 In considering s 65(2)(d)(ii), the trial judge, and the New South Wales Court of Appeal, considered the question of the likely reliability of the representations, made by Filihia to the police, by reference to the overall impression to be gained from a consideration of the totality of Filihia's interview and statements. The High Court held that that approach was erroneous. Rather, it held, s 65(2)(d)(ii) requires a judge to focus on the particular representations sought to be adduced in evidence, and on the circumstances in which those representations were made. The Court stated:

It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.

...

... The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge in the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.

...

Section 65(2)(b)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. One category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence as those circumstances that 'are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed'; in other words, circumstances that of themselves tender negative motive and opportunity of the declarant to lie.[22]

28 The precise ambit of s 66A has not been considered in any decision of an appellate court. At common law, the statement by a person as to his or her state of mind - including that person's intention, knowledge or feelings - is not regarded as hearsay, but rather is admissible under the res gestae exception.[23] By recognising contemporaneous representations about state of mind and the like, as exceptions to the hearsay rule, the Act assumes that such representations are hearsay.

29 Where it is determined that hearsay evidence qualifies to be admissible under any of the exceptions to which I have referred (or any other exception specified in the Act), s 137 of the Act requires the court to refuse to admit that evidence 'if its probative value is outweighed by the danger of unfair prejudice to the defendant'.

30 The Dictionary to the Act defines 'probative value' as follows:

Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

31 That definition reflects the test of relevance stipulated by s 55 of the Act, which provides that evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

32 Until recently, there was an unresolved controversy as to whether the assessment of the probative value of evidence, sought to be admitted by the prosecution, involves an assessment by the trial judge of the credibility and reliability of that evidence. In R v Shamouil,[24] the New South Wales Court of Appeal held that ordinarily issues of reliability or credibility of the evidence are not relevant in the assessment of the probative value of the evidence, unless those issues are such that it is possible for the court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[25] On the other hand, in Dupas v The Queen,[26] the Court of Appeal of this State, held that the assessment by a judge of the potential probative value of evidence, sought to be admitted by the prosecution, necessarily involved a consideration of the reliability (but not credibility) of that evidence. Subsequently, in R v XY,[27] the New South Wales Court of Appeal declined to follow Dupas, and maintained the approach adopted in Shamouil.

33 The issue has now been resolved by the recent decision of the High Court in IMM v The Queen.[28] That case involved the question of the admissibility of tendency evidence under s 97(1)(b) of the Act, and the application of s 137 to that evidence. The issues on appeal squarely raised the question of the correctness of the conflicting approaches, to an assessment of 'probative value', by the Victorian Court of Appeal and the New South Wales Court of Criminal Appeal. The majority in the High Court[29] held that in assessing the probative value of the evidence, the trial judge was to assume that the jury would accept the evidence that was sought to be admitted. In that way, the majority reasoned, the trial judge was required to take the evidence '... at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue'.[30] Their Honours concluded:

Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two - reliability and credibility - as Dupas may imply. They are both subsumed in the jury's acceptance of the evidence.[31]

34 Based on the foregoing analysis of the principles that are relevant in this case, in order to determine the admissibility of the representations by Blewitt to witness P sought to be adduced by the prosecution, it is necessary to address four issues in relation to each of those items of evidence:

(2) Is the hearsay evidence, sought to be adduced, first hand hearsay?

(3) Does the evidence come within any of the exceptions to the hearsay rule relied on by the prosecution?

(4) For the purpose of s 137 of the Act, is the probative value of the evidence outweighed by the danger of unfair prejudice to the accused if the evidence were admitted.

35 As I have noted, the first representation consists of the statement by Blewitt to witness P, sometime before Kinniburgh was killed, that Williams wanted Kinniburgh and another person 'bowled or executed'. The prosecution relies primarily on s 66A for the admissibility of that evidence. In particular, counsel for the prosecution submitted that the evidence proves the knowledge of Blewitt that Williams wanted Kinniburgh to be executed. It was submitted that it is relevant for the prosecution to establish that Blewitt knew of the animosity that Williams bore towards Kinniburgh at that time. Alternatively, it was submitted that the evidence is admissible pursuant to s 65(2)(c), in that the representation was made in circumstances that made it highly likely to be reliable.

36 In response, senior counsel for the accused submitted that the bare knowledge by Blewitt of Williams' wish to kill Kinniburgh is not relevant. He submitted that, in reality, the prosecution was seeking to adduce the evidence in order to prove that Williams himself did wish to have Kinniburgh killed. However, as pointed out, the evidence, to that effect, is second hand hearsay, and therefore not admissible pursuant to s 66A or s 65(2)(c).

37 The submissions made on behalf of the accused are correct. Insofar as the evidence constitutes first hand hearsay, it proves no more than that, sometime between June 2003 and December 2003, Blewitt knew that Williams wanted Kinniburgh, and other persons, to be killed. The bare knowledge by Blewitt of that fact is not, in my view relevant, in that it could not rationally affect the assessment of the probability of the existence of a fact in issue, namely, whether Blewitt and Asling were parties to a joint criminal enterprise with Williams (and witness A) to kill Kinniburgh. As pointed out by senior counsel for the accused, the evidence, sought to be adduced, is not admissible to prove the state of mind of Williams towards Kinniburgh. The fact that Blewitt knew or believed that Williams wanted Kinniburgh dead, of itself, could not, in my view, rationally affect the probabilities of the existence of the participation by Blewitt, Asling and Williams in the joint criminal enterprise alleged by the prosecution. Accordingly the first representation, made by Blewitt to witness P, is inadmissible.

38 For the same reason, the evidence is also not admissible under s 65(2)(c). Insofar as the prosecution seeks to introduce the evidence to prove Blewitt's knowledge, that Williams wanted Kinniburgh to be killed, it is not relevant. Insofar as the prosecution seeks to adduce the evidence to prove Williams' intentions or state of mind towards Kinniburgh, it is plainly not first-hand hearsay.

39 Counsel on both sides made submissions in relation to representations 2 to 6, without discriminating between those representations. It was common ground that each of those representations were against the interests of Blewitt at the time at which the representations were made, so as to satisfy the requirements specified in subparagraph (i) of s 65(2)(d). The critical issue is whether each of the representations were made in circumstances that make it likely that the particular representation is reliable, for the purposes of s 65(2)(d)(ii).

40 Counsel for the prosecution submitted that, by reason of the following factors, it should be concluded that the representations were made in circumstances that made it likely that they were reliable, namely:

The length of time Blewitt and witness P had known one another.
Their criminal association.
They were close friends who maintained regular contact almost on a daily basis.
There was a relationship of mutual trust between them.
Their previous discussions and involvement in criminal activities.
Witness P's knowledge of the accused and Blewitt previously being armed with guns.
The fact that witness P had been involved in the theft of the vehicle that was used (or believed to have been used) on the night of the killing of Graham Kinniburgh.
The clandestine nature of the conversations in which the relevant representations were made.

41 Counsel submitted that the combination of those factors had the effect that the representations were made in circumstances that made it likely that they were reliable. In particular, unlike in Sio, this was not a situation of an accomplice making admissions to the police, implicating a co-offender, so as to minimise his own culpability. In each of the representations Blewitt did not seek to minimise his culpability and to maximise that of the accused to anyone else. Further, he had nothing to gain or benefit from making the representations to witness P.

42 In those circumstances it was submitted that the evidence is admissible pursuant to s 65(2)(d). Alternatively, it was submitted that the evidence is admissible pursuant to s 65(2)(b) or (c). In particular it was submitted that the representations were made in circumstances in which they were likely to be true and reliable. It was contended they were specific in nature, and they were made to someone who was close to Blewitt, and who shared a close and criminal relationship.

43 In response, counsel for the accused submitted that there was nothing about the circumstances, in which the representations were made by Blewitt to witness P, from which it might be concluded that it was likely that the representations were reliable. Counsel noted that, before making his witness statement dated 16 July 2015, witness P had previously made a statement to the New South Wales police force on 27 May 2015, and had made a draft unsigned statement to Victorian police on 22 June 2015. Counsel described how witness P had included greater detail of each representation in each successive statement. He further submitted that it appeared, from the evidence, likely that the representations were made by Blewitt to witness P when both of them had been drinking alcohol. Counsel referred to the evidence at the committal proceeding by Blewitt's girlfriend that Blewitt was a heavy drinker, who drank to excess each day. Counsel submitted that in such circumstances the representations made by Blewitt might well have been motivated by bravado in order to enhance his status as a criminal in the eyes of another person with whom he was associated in his criminal dealings. Counsel also submitted that, given that each of them were involved in the criminal world, it is unlikely that there was such a level of mutual trust between Blewitt and witness P that would have induced Blewitt to have made truthful admissions to witness P. Finally, counsel pointed to the evidence of witness P, on the voir dire, that he could not be specific as to the time or place of the conversations in which the representations were said to have been made to him by Blewitt. In those circumstances it was contended that the prosecution could not demonstrate that the representations were made in circumstances that made it likely that they were reliable.

44 Counsel for the accused further submitted that, if the evidence is admissible under s 65(2)(d), I should exclude it, pursuant to s 137 of the Act, because any probative value of the evidence is outweighed by its prejudicial effect. In that respect, counsel submitted that the vice of the evidence, if admitted, would be to corroborate the truthfulness of the admissions which witness P states that the accused made to him. Further, counsel relied on the circumstance that witness P was first called upon to recollect the representations some 12 or 13 years after the event. Accordingly, his evidence as to the representations, and the circumstances in which they were made, is vague and imprecise. In those circumstances, it is submitted that the defence would not be able to adequately test the evidence of witness P as to those representations.

45 In considering the competing contentions by the parties, it is important to bear in mind that the issue to be determined is whether the representations made by Blewitt to witness P (which the prosecution seeks to adduce from witness P), were made in circumstances that make it likely that those representations (by Blewitt to witness P) were reliable. That issue does not involve an assessment of the potential reliability, or credibility, of witness P as a witness.

46 The fact that witness P was a party to three successive statements, in which his version of the representations may have altered, might affect the credibility or reliability of witness P's evidence. However, it does not affect, or bear upon, the reliability of the representations that witness P states were made to him by Blewitt. It might also affect the degree of precision with which witness P is able to give evidence about those representations. However, the representations are specified with sufficient precision in the hearsay notice to enable an appropriate assessment to be made of their reliability.

47 I turn, then, to the second to sixth representations by Blewitt to witness P. Before considering each of them individually, it is convenient, first, to make some general observations that are relevant to each of them. In particular, it is relevant to consider the context in which the representations were made by Blewitt to witness P, and the then relationship between them, and also between them and the accused, in order to assess whether the representations were made in circumstances that make it likely that they are reliable.

48 According to witness P, he first met Blewitt in about 1997 through a mutual associate, with whom witness P was a close friend. In the ensuing years, Blewitt and witness P were in regular contact, and witness P would see him at the St Kilda Inn as well as at the Angel Tavern in Malvern. They would also meet at the Railway Hotel in Windsor. Witness P and Blewitt drank together in a lot of hotels. He said that Blewitt would usually call him from a telephone box, and that he was very careful about speaking on any phones. At that stage Blewitt had been in jail, and he was a seasoned criminal. In about 1999, witness P met him again in Port Philip Prison.

49 In about 2002, witness P first met the accused through Blewitt. Subsequently, the accused was brought into their 'circle of friends'. According to witness P, the three of them became very close. They each had nicknames. Witness P states:

Terry, Steve and I soon became close friends and maintained regular contact almost on a daily basis. It could have been phone contact or just turn up at each other's houses or pubs.

50 During their relationship, witness P's then girlfriend became friends of the accused's girlfriend. The accused and he began to trust each other and started to discuss doing burglaries and robberies together. Witness P described how he helped the accused to steal the blue Ford sedan to which I have earlier referred. The plan was for that vehicle to be used in burglaries and robberies. According to witness P, Blewitt was often a party to the conversations concerning those plans.

51 It was in the context of that relationship that witness P stated that Blewitt made each of the representations sought to be adduced on behalf of the prosecution. From witness P's description of that relationship, there was nothing about it that might have led Blewitt to have exaggerated or embellished the revelations that he made to witness P concerning his, or the accused's, involvement in either the plan to kill Kinniburgh, or the killing of him. On the evidence contained in witness P's statement, it would seem that the three men, being 'partners in crime', reposed a degree of trust in each other, in that they were party to mutual discussions concerning the planning of burglaries, robberies and other crimes. Indeed, if that relationship of trust did not exist, it would be difficult to comprehend why Blewitt would have made the representations claimed to be made to witness P. The existence of that relationship of trust does, in my view, enhance the proposition that it is likely that the representations made by Blewitt to witness P were reliable.

52 In particular, there was nothing about the relationship between Blewitt and witness P which would have induced Blewitt to have fabricated an account in which he untruthfully implicated himself in the murder of Kinniburgh. Further, and importantly, at the time both witness P and Blewitt were close friends of the accused. It was unlikely, in those circumstances, that Blewitt would have untruthfully implicated the accused in the murder of Kinniburgh when speaking to witness P. There was nothing about the circumstances, in which each of the representations were made, that suggests that Blewitt had any motive or reason to untruthfully state that the accused had been a party to the killing of Kinniburgh.[32] Unlike in Sio, Blewitt was not in the position of a co-offender who was seeking to shift the blame onto someone else, in order to evade or mitigate his responsibility for the crime that he was discussing with witness P. In that respect, it is relevant that in his description of the shooting, contained in representation number three, Blewitt ascribed a more significant role to himself than to the accused, by stating that he (Blewitt) fired the fatal shots, while the accused acted as a decoy. In representations five and six respectively, Blewitt only implicated himself (and not the accused) in disposing of the gun, that had been used in the shooting, and in collecting the contract money. Those considerations are important, and of substantial weight, in determining whether, for the purposes of s 65(2)(d)(ii), the representations, sought to be led by the prosecution, were made in circumstances that make it clearly that they are reliable.

53 The evidence as to Blewitt's drinking habits is relevant to an assessment of the reliability of the statements that he made to witness P. As counsel for the accused has pointed out, at the committal proceeding, Blewitt's partner, Kathleen Stanton, gave evidence that Blewitt was a heavy drinker, who drank to excess every day. In cross-examination in the voir dire before me, witness P agreed that both he and Blewitt were heavy drinkers. He agreed that a lot of conversations between them were drunken conversations, and that as a big drinker Blewitt was a 'bit of a story teller'. However, witness P added that when Blewitt drank a lot, Blewitt did not talk about himself, and that he was careful who he spoke in front of. Notwithstanding that evidence, witness P did not state, nor was it suggested to him, that any of the representations were made in circumstances in which Blewitt was affected by alcohol to the extent that might have affected the reliability of what he was saying to witness P.

54 It is also convenient, at this stage, to consider some of the matters relied on by counsel for the accused in support of his submission that, if the evidence is otherwise admissible under s 65(2)(d)(ii), I should exclude it under s 137, because its probative value is outweighed by the danger of unfair prejudice to the accused. In support of that proposition, as I noted, counsel for the accused relied on the circumstance that witness P has been unable to provide any detail as to the time, place or context in which the representations were allegedly made to him by Blewitt. Counsel submitted that, as a result, the defence has been handicapped in its ability to test witness P's evidence as to the making of those representations.

55 I accept that that circumstance may constitute a forensic disadvantage to the defence. On the other hand, the vagueness of witness P's evidence may well weigh against the jury's view of the credibility and reliability of the evidence given by witness P. Thus, the circumstance relied on by counsel for the accused does, in a real sense, 'cut both ways'. If the evidence is admitted, and if it does appear that the defence has suffered such a disadvantage as contended for by counsel for the accused, I would consider that that disadvantage could be sufficiently allayed by an appropriate direction to the jury.

56 The other matter of prejudice, contended for by counsel for the accused, is that the evidence of Blewitt's representations to witness P unfairly corroborates the evidence of witness P as to the admissions that he states that the accused himself made to him. However, as counsel acknowledged, the evidence of witness P, as to the statements made by Blewitt, does not corroborate witness P's evidence as to the admissions which he claims were made to him by the accused. Rather, at the most, it corroborates the truthfulness of the admissions made by the accused to witness P, if the jury were satisfied that the accused made those admissions. I accept that if the jury is satisfied as to the truthfulness and accuracy of the evidence of witness P, as to the representations made to him by Blewitt, and as to the admissions made to him by the accused, then the evidence of the Blewitt representations may well support the proposition that the accused's admissions to witness P were truthful admissions. However, that would not constitute unfair prejudice to the accused. Rather, the support thus given to those admissions, made by the accused, would be a proper use of the evidence of the representations made by Blewitt to witness P. It would not therefore constitute unfair prejudice to the accused for the purposes of s 137 of the Act.

57 Of course, if any of the representations were admitted in evidence, the accused would suffer the disadvantage of not being able to cross-examine Blewitt, and of the jury not having the opportunity to observe the character and the demeanour of Blewitt, particularly while under cross-examination. However, as counsel correctly recognised, those disadvantages are an incident of the admission of any hearsay evidence under the Act. They provide a sound reason for caution in determining whether the evidence should be admitted. However, experience has demonstrated that an appropriate judicial direction, concerning those aspects of hearsay evidence, is ordinarily sufficient to offset the disadvantage otherwise accruing to the defence arising from the admission of such hearsay evidence.

58 In that context, it is necessary to examine, individually, each of representations two to six, sought to be relied on by the prosecution.

59 As indicated, witness P states that the second representation was made by Blewitt to him at the Angel Hotel in Malvern. The representation is clearly relevant, as it bears directly on the probability of the issue whether Blewitt and the accused were a party to a joint criminal enterprise with Williams to kill Kinniburgh.

60 In his statement, witness P was unable to be precise as to the date on which that representation was made. In the context of the ongoing 'underworld war' at that time, it is unlikely that Blewitt would have been telling his friend (witness P) that he was a party to a contract with Carl Williams to kill Kinniburgh, if that were not the case. Equally, it is unlikely that he would have been telling witness P that the accused was a party to that contract, if that were not the case. On the contrary, in that context, it is likely that what Blewitt said to witness P was reliable. Accordingly, in my view, the evidence is admissible under s 65(2)(d)(ii) of the Act.

61 For the purpose of completeness, if the evidence of the second representation were not admissible under s 65(2)(d), I would not consider that it fulfils the requirements of subsection (b) or (c). There is no evidence as to when the second representation was made to witness P. Accordingly, it cannot be concluded that the statement was made 'when or shortly after' the asserted fact (the contract between Blewitt and Williams) occurred. Accordingly s 65(2)(b) would not apply to the representation. While I have concluded that the representation was made in circumstances that make it likely that it was reliable, I do not consider that, for the purposes of subsection (c), it could be concluded that it was made in circumstances that made it 'highly probable' that the representation was reliable.

62 The evidence, comprising the second representation, is of probative value to the prosecution as it provides direct support to the prosecution case that Blewitt and the accused were party to a joint criminal enterprise with Williams to murder Kinniburgh. For the reasons that I have already outlined, I do not consider that, if the evidence were admitted, the defence would suffer unfair prejudice, other than through its inability to cross-examine the maker of the hearsay statement, namely, Blewitt. In each case, that disadvantage would, in my view, be sufficiently addressed by an appropriate direction to the jury. It follows that the probative value of the evidence outweighs any prejudicial effect of it. Accordingly, the evidence of the second representation is admissible.

63 I turn next to representation number three. The evidence is not entirely clear as to when the conversation occurred, in which that representation was made. In paragraph 17 of his statement, witness P stated that the conversation occurred 'within days' of the murder of Graham Kinniburgh. In the voir dire, he said in cross-examination that it took place 'after December', and in re-examination he said that it occurred within a month of the murder of Kinniburgh.

64 The context to the statement is, I consider, important. In particular, according to witness P, the topic of Kinniburgh's murder was raised when witness P told Blewitt that he could not believe that 'they' had used the Ford vehicle, which witness P had assisted the accused to steal. According to witness P, Blewitt replied '... that that was the way it went down, that there was a window and he and Steve took it'. It was then that Blewitt descended to detail about how the killing took place, in terms that I have summarised earlier, and which comprise the third representation.

65 The topic, about using the blue Ford, arose because, according to witness P, when Blewitt and the accused visited him on the morning after Kinniburgh had been killed, the news footage on the television displayed a burnt out blue Ford sedan which appeared to be of the same model of Ford vehicle that witness P and the accused had earlier stolen in Middle Park. That fact makes it plausible that, in a subsequent conversation, witness P would have raised with Blewitt the fact that they had used the Ford vehicle in the killing of Kinniburgh. In those circumstances, it is unlikely that Blewitt would have conceded being involved in the murder of Kinniburgh, with the accused, and using the Ford vehicle in connection with that killing, unless he was then telling the truth. As I have already pointed out, the relationship between witness P, Blewitt and the accused, as described by witness P, was such as to make it likely that the type of revelations made by Blewitt to him, contained in the third representation, were reliable.

66 The third representation is clearly of high probative value. It is (as it were) direct evidence of the involvement of both Blewitt and the accused in the killing of Kinniburgh. Counsel will be able to cross-examine witness P effectively as to the lack of detail relating to the circumstances in which the representation was made to him by Blewitt. Any disadvantage, in that respect, can be suitably offset by an appropriate direction by me to the jury, both relating to the hearsay nature of the evidence, and as to the disadvantage to the defence arising from the delay in witness P being called upon first to recall the conversation that he had with Blewitt. In those circumstances, in my view the probative value of the evidence substantially outweighs its prejudicial effect.

67 The fourth representation, sought to be adduced by the prosecution, was that Blewitt told witness P that he and the accused left the scene of the murder, and one of the places they went to was the Caulfield Racecourse Tabaret. It is not clear whether that representation was made at the same time as the third representation, or on a different occasion. In the voir dire, witness P said that Blewitt only spoke to him on two or three occasions about the circumstances of the murder. Representation four is contained in witness P's statement immediately after representation number three, in terms that suggests the two representations were made at the same time.

68 In any event, it would seem that the fourth representation was made in a similar context, namely, discussion by Blewitt with witness P about the circumstances of the murder, and its aftermath. On any view, the fourth representation was contextually connected with the third representation, whether or not it was made on the same occasion. For the reasons that I have stated in respect of the third representation, I consider that the circumstances, including the relationship between witness P and Blewitt at the time, were such that make it likely that that representation is reliable. For the same reasons, I am also of the view that the probative value of the representation would outweigh the risk of any unfair prejudice to the accused. Accordingly, representation four is admissible.

69 The fifth representation related to the statement by Blewitt to witness P that he had disposed the gun by throwing it into a body of water on the left hand side of the Ballarat Road on the way to Ballarat. Again, it is unlikely that Blewitt would have told witness P of the disposal of the gun, used in the murder of Kinniburgh, if that were not the fact. The fifth representation was made in the context of the earlier representations, and in particular the third representation, by Blewitt, about his involvement in the murder of Kinniburgh. It is likely that, having revealed that fact to witness P, he might also have spoken further about the matter, and in particular about issues relating to the disposal of the gun used in the murder. Accordingly I am satisfied that the requirements of s 65(2)(d)(ii) are made out. The probative value of the evidence is less than the probative value of the third representation. However, it is nevertheless relevant to a fact in issue, namely, the involvement of Blewitt as a co-offender in the killing of Kinniburgh. Blewitt did not implicate the accused in the disposal of the gun, so that any potential prejudicial effect of the adducing of that representation is less than the potential prejudice from representations two, three and four. I consider that the forensic disadvantages to the defence, referred to by Mr O'Connell, can be suitably catered for by appropriate directions to the jury. Accordingly I would not exclude that evidence under s 137 of the Act. It follows that the fifth representation is admissible.

70 Finally, I turn to the sixth representation. The considerations relating to this representation are similar to those that are relevant to the fifth representation. It was made subsequent to the third representation, in which Blewitt had described to witness P the involvement of himself and the accused in the killing of Kinniburgh. In that context, and given the relationship that I have described between witness P and Blewitt, it is likely that any statement made by Blewitt to witness P, about payment of the contract fee, was reliable. Accordingly, the requirements of s 65(2)(d) are satisfied. For the reasons I have outlined in relation to the fifth representation, the probative value of the evidence outweighs any potential prejudicial effect of it. The prosecution case is that the accused and Blewitt were parties to a contract with Williams to kill Kinniburgh. It is directly relevant that after the killing of Kinniburgh, Blewitt collected some contract money from Williams or his father. Thus, the evidence is of significant probative value. Any prejudicial effect of it can, in my view, be sufficiently allayed by direction to the jury. Accordingly the probative value of the evidence does outweigh any potential prejudicial effect of it.

71 For the reasons that I have stated, I have come to the following conclusions concerning the six representations made by Blewitt to witness P, which the prosecution seeks to adduce in evidence:

(b) Representations two, three, four, five and six are each admissible.

72 In stating those conclusions, I reiterate an observation that I made in the course of submissions. The ruling that I have made is directed, specifically, to the six representations in the manner and form that they are set out in the hearsay notice, and in witness P's statement. It follows that the only hearsay evidence, that I rule to be admissible, is that hearsay evidence, and none other. I make that observation because of some concerns arising from the demeanour of witness P on the voir dire, and the manner in which he answered questions. The prosecution will need to take some care to ensure that any hearsay evidence given by him, pursuant to the conclusions that I have stated in this ruling, is confined carefully to the representations on which I have ruled.

[2] See e.g. R v Vincent [2002] NSWCCA 369; (2002) 133 A Crim R 206, [20] (Hodgson JA); Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195.

[8] Conway [2000] FCA 461; (2000) 172 ALR 185, 217-18 [120] [123].

[16] R v Mankotia [1998] NSWSC 295; Williams [2000] FCA 1868; (2000) 119 A Crim R 490, 503-505 [50]-[55]; R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603, 616 [34].

[17] Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603, 616 [36]-[37]; Azizi (2012) 224 A Crim R 325, 337 [50] (Bongiorno JA); Sio v R [2016] HCA 32; (2016) 334 ALR 57, 71-72 [69]-[70].

[23] Walton v R [1989] HCA 9; (1989) 166 CLR 283, 288-9, 300-301; Thomas v R [1960] HCA 2; (1960) 102 CLR 584, 596.

[29] French CJ, Kiefel, Bell and Keane JJ.

[31] Ibid 315 [52]; cf 347-350 [164]-[172] (Nettle and Gordon JJ, dissenting).

At a glance

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Judgment (125 paragraphs)

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Cases Cited (10)