DPP v Cooling [2019] VSC 603 | Case summary

Supreme Court of Victoria|2019-09-06|Before: COGHLAN JA

CRIMINAL LAW - Evidence - Hearsay - Maker of representations unavailable to give evidence - Whether representations were made 'shortly after' the asserted fact occurred - Whether representations made in circumstances that make it highly probable that they are reliable - Evidence Act 2008 ss 65(2)(b), s 65(2)(c) and 137.

2 The matter is listed for trial in the Supreme Court at Shepparton on 23 October 2019.

3 Clint McKindley died on 1 October 2018 of an apparent drug overdose. He was unavailable to give evidence and be cross-examined at the committal which was held on 30 January 2019. Ms Filliponi did give evidence at the committal and resiled, at least in part, from her earlier account. The alterations of her account are based upon the uncertainly of her recollection and the amount of drugs and alcohol she had consumed. Whether or not the prosecution will be able to 'restore' her evidence at trial is moot.

4 In Ms Filliponi's original statement, her version of events did support the version given by Mr McKindley, to some extent.

5 By notice dated 22 July 2019, the prosecution gave notice that it intended to adduce hearsay evidence as set out in the attached tables, marked Annexure A. That notice replaced notices dated 30 May 2019 and 19 July 2019. The change in the notices is that the 19 July 2019 notice added representations 42-46 and the notice of 22 July 2019 expanded representation 32. They all relate to the representations made by the witness, Clint McKindley.

1. Representations made in a recorded interview between Clint McKindley and Detective Leading Senior Constable Paul Van Emmerik commencing at approximately 2:30am on 20 May 2018 at Shepparton Goulburn Valley Hospital (Recorded Representation).

2. Representations made in a statement taken by First Constable Samuel Harper at the Shepparton Goulburn Valley Hospital signed at 4:17 am on 20 May 2018 (Representations 1- 41).

3. Representation made to Senior Constable David Erdmann and Senior Constable Mark Eade at about midnight on 19 May 2018 at 30 Regent Street, Shepparton (Representation 42).

4. Representations made to Senior Constable Mark Eade at about midnight on 19 May 2018 at 30 Regent Street, Shepparton (Representations 43-46).[1]

7 It is also submitted that the representations 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 32 and 33 are coextensive with the recorded representations. If I rule any of the representations admissible, the form in which they might be tendered to the jury will have to be worked out by the parties.

8 It is common ground between the parties that Clint McKindley is dead and that the representations are largely relevant, although particular representations may be objected to on the ground of relevance.

9 The prosecution relied upon the representations being admissible as they come within the exceptions set out in s 65(2)(b) and s 65(2)(c) of the Evidence Act 2008 ('the Act'):

(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 ...

10 Although ultimately the representations will have to be considered individually, they may be summarised as Mr McKindley's description of the alleged attack upon him by the accused.

11 The accused submits that the representations do not come within the exceptions because they were not made:

shortly after the asserted fact occurred in circumstances that make it unlikely that the representation is a fabrication;[2]

and that it cannot be shown that the representations were:

made in circumstances that make it highly probable that the representation is reliable.[3]

12 It is the prosecution's submission that it is accepted in Victoria[4] that what was said by the Full Federal Court of Australia sitting on an appeal from a trial in the Supreme Court of Australian Capital Territory in Williams v The Queen[5], accurately sets out how s 65(2)(b) is to be interpreted.

13 It was submitted by Mr Thomson, of counsel, who appeared for the accused, that the representations should not be admitted because they could not be shown to be made 'shortly after' the asserted fact occurred as that expression has been interpreted by the Court. Mr Thomson took up the theme which had emerged from the cases that the time which elapsed between the alleged events and the making of the representations was such that it allowed ample time for the 'fabrication' of a version of the events, in particular, that Mr McKindley was not the original aggressor.

14 It was also submitted that it could not be demonstrated that the representations were made in 'circumstances that make it highly probable that the representation is reliable'.[6]

15 The law as to the interpretation of s 65(2)(b) has developed substantially, dependent upon what was said by the Full Federal Court in Williams where Whitlam, Madgwick and Weinberg JJ said:

... 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. In Conway the statement in question was made by a murder victim who said, while observed to be looking 'terrible', that she had been drugged and had been 'off her face for about three or four hours'. The comments of the Court in Conway regarding the meaning of 'shortly after' should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case.[7]

16 The importance of what the Full Federal Court had said in Conway v R[8] was that a fairly liberal interpretation has been given to the words 'shortly after'.[9]

17 The representations being considered in Williams had been made five days after the alleged events and the Full Court considered that they had not been made 'shortly after'. It was in that context that the Court said what is set out above.

18 In this case, it is common ground that the Mr McKindley was stabbed a number of times by the accused. What is in contention is the question of who was the original aggressor. That, it is submitted, could give rise to the defence of self-defence. There is no evidence, at the moment, which would give rise to that defence but I am prepared to proceed on the basis that at trial there will be.

23:53 - Troy McKindley calls the police because he could hear yelling next door at his brother's unit;
23:56 - Senior Constable Mark Eade and Senior Constable David Erdmann receive a call from the tasker to attend 30 Regent Street;

00:00 (approximately midnight) - Senior Constable Mark Eade and Senior Constable David Erdmann arrive at 30 Regent Street (further police units were requested and arrive no long after);
00:15-00:25 - Approximate time ambulance arrives according to Senior Constable Mark Eade who stated at the committal that the ambulance arrived 15-20 minutes after he and Senior Constable David Erdmann had got to the address;
00:45 - Triage of Mr McKindley at Shepparton Goulbourn Valley Hospital;
00:47 - Mr McKindley is seen by his treating doctor;
00:56 - Leading Senior Constable Paul Van Emmerik attends the crime scene.
02:22 - Leading Senior Constable Paul Van Emmerik attends the Shepparton Goulbourn Valley Hospital and liaises with Senior Constable Harper - The recorded conversation with Mr McKindley occurs around this time.
11:23 - Mr McKindley is discharged to the Alfred Hospital for further treatment.

20 Mr McKindley was observed to have the following injuries:

Five superficial neck and face lacerations including:
- Left back of the (posterior) neck wound with subcutaneous emphysema (air in the tissues under the skin as a result of the penetrating trauma).
- Right back of the (posterior) neck.
- Right front of (anterior) neck.
Right anterior chest wall wound.
Left back of the (posterior) shoulder: deep left laceration above the shoulder blade bone (suprascapular).
Multiple right arm and forearm lacerations:
- One overlying the shoulder (deltoid) muscle.
- One overlying the muscle extending the elbow (triceps).
Left forearm superficial wounds over the wrist aspect on the side of the little finger (left ulnar wrist).
Right forearm wounds (two) to the deeper fascia structures with swelling and blood collection (haematoma).
Left hand wound overlying the second middle hand (metacarpal) bone.

21 It is evident that Mr McKindley was spoken to by the police at the hospital a few hours after the event. He had, in the meantime, been treated at the hospital for the above injuries.

22 The submission that the delay gave rise to the risk of fabrication was based, in part, on the proposition that Mr McKindley was intending to exculpate himself and therefore avoid any mention that he started the confrontation. That of course is, in turn, based upon the defence's position that Mr McKindley started the fight.

23 In argument, Mr Thomson seemed to regard the interview with Mr McKindley at the hospital as an interview of a suspect. I do not take that to be the case. I am satisfied that it was an interview designed to find out what happened. That contention is supported by virtue of the fact that what occurred next was the taking of the witness statement.

24 In this case, the police were dealing with a person who had been stabbed a large number of times, although many of his injuries were superficial. After the arrival of the police and ambulance Mr McKindley was taken to hospital where he was treated. The police sought to obtain from him a version of events. That version was first recorded and shortly afterwards, a statement was taken.

25 I am satisfied that the circumstances are such 'that make it unlikely that the representation is a fabrication'.[10]

26 I am satisfied that the representations were made 'spontaneously during (when) or under the proximate pressure of ('shortly after') the occurrence of the asserted fact'.[11]

27 It is necessary to deal with the representations separately but all that was represented does provide the contexts of each representation and, in that sense, the manner in which they produce a narrative.

28 The hearsay notice is annexed to this ruling as Annexure A. The representations are identified by reference to a statement taken by First Constable Samuel Harper on 20 May 2019, signed at 4:17 am. Where the representations or a similar representation was made in the recorded conversation between Mr McKindley and Detective Leading Senior Constable Paul Van Emmerik, reference is made to the transcript.

29 In addition, representations 42-46 were added to the amended hearsay notice of 22 July 2019. Those representations relate to what was said to, or overhead by, Senior Constable David Erdmann and Senior Constable Mark Eade who were the two police officers to have attended the scene.

30 The accused did not contend that representations 42-46 did come within the ambit of s 65(2)(b) as having been made when or shortly after the asserted fact occurred.[12]

31 Representations 1-15 are not in issue and simply provide the background narrative to later events. Representation 14 is challenged in so far as Mr McKindley said 'I only had about 4 for the whole night ...'. I see no reason why this representation should not be admitted as part of the narrative, but it would be appropriate to warn the jury about the notorious weakness of assertions about consumption of alcohol.

32 It follows that representations, 16 to 41, fall to be considered. Representations 37, 38, 39 and 40 are challenged on the basis of relevance. Nothing much turns on representations 37, 38 and 39. They are of only of marginal relevance and I would exclude them. It seems to me that representation 40 is relevant.

33 The various representations set out what Mr McKindley said about what had occurred, what he had done, what had been done to him and what he had seen and heard.

34 I have considered each representation and I am satisfied that representations 16-32, 34-36, 40 and 41 should be admitted in evidence. Whether representation 33 comes within s 65(2)(b) of the Act, or not, does not matter because I would be inclined to exclude at my discretion and I do so.

35 In written submissions, the accused submitted the circumstances in which the representations made fabrication likely. In part it said:

(a) McKindley's interest in presenting himself as the victim rather than the aggressor in the fight;

(b) McKindley's assertion to police that before any conflict took place, he thought It's gunna come down to, you know, a fight to the death here, you know, one of us is gunna die, you know. That's what I felt...

(c) The alcohol and drugs consumed by McKindley in the hours before the representations;

(d) The long-term abuse by McKindley of illegal drugs and prescription medication;

(e) The criminal history of McKindley including 2015 convictions for assault and damaging property, 2011 convictions for carrying a controlled weapon and references in the criminal record to the need for counselling for drug and mental health issues;

(f) In the hours before the relevant events neighbours heard yelling and thumping coming from McKindley's premises indicating a much more protracted altercation than asserted by McKindley;

(g) The various warnings on the police database concerning McKindley's address including 2015 warnings concerning a psychiatric risk/ suicide or self-harm and an earlier arson related offence, plus a 2012 warning concerning carrying weapons;

(h) The seeming fascination of McKindley with knives;

(i) The assertion by McKindley at the Goulburn Valley hospital that he was attacked by 2 male persons;

(j) The inability of crime scene investigators to draw any conclusions as to what happened at McKindley's house because of the amount of blood and number of weapons involved,

(k) The lack of corroboration from the other known person in the house, Filliponi, who went to sleep with the Accused and McKindley talking in a friendly fashion and woke up to find a struggle going on between them;

(l) The lack of corroboration of the essence of the hearsay representations in the form of other direct or forensic evidence.

36 I am not satisfied that all of those matters are 'circumstances' as s 65(2)(b) requires, but even if they were, they do not seem to me to lead to the conclusion that they make fabrication likely. It is for the prosecution to demonstrate that it is 'unlikely that the representation is a fabrication'.[13] I have already set out above the circumstances in which those representations were in fact made. I am satisfied that each of them is unlikely to be a fabrication.

37 It was argued, in the alternative, that I was obliged to exclude the evidence because the risk of unfair prejudice would outweigh the probative value. I have taken that submission to apply to all of the hearsay evidence.

38 In this case, I regard the evidence as being highly probative and since much of it relates to what happened when the wounds were inflicted upon Mr McKindley and what followed these events, they are not particularly contentious. What is in issue are the descriptions of the events leading up to the 'attack' on Mr McKindley.

39 The criticism largely centres on what was in representations 16 and 17 because in these representations the accused is the aggressor without any action having been taken by Mr McKindley.

40 The defence at the trial is said to be that of self-defence and it is submitted that the absence of any opportunity to cross-examine Mr McKindley gives rise to unfair prejudice.

41 I am not satisfied in the circumstances of this case that that is so. Although it is not clear exactly what evidence Ms Filliponi might give, she will, as matters stand, be called at the trial. A large body of evidence going to the credit of Mr McKindley is available, including evidence which is capable of showing that he behaved violently in the past. Given the overall nature of the case and particularly the imbalance in the injuries suffered by the accused and Mr McKindley, I do not accept that the mere assertion that Mr McKindley has potentially omitted that he might have been the original aggressor is all that critical.

42 It was accepted by the accused that the prosecution can prove that Mr McKindley was injured and probably by the accused. It is submitted that the critical issue is whether the prosecution can prove that the accused was not acting in self-defence.

43 It is not clear to me how it is that the fact that the Mr McKindley might have been the original aggressor is necessarily relevant to the question of conviction. There is little, if any, evidence of any injuries suffered by the accused in the supposed attack. Any question of self-defence (not yet raised on the evidence) would, in any event, be subject to the accused's response being a 'reasonable response in the circumstances as the person perceives them'.[14] The standard a reasonable belief is based upon 'the standard of a reasonable person who was not intoxicated.'[15]

44 I will not exclude the evidence under s 137 of the Act.

45 The prosecution did not particularly place any reliance upon s 65(2)(c) of the Act and no submissions were made in reply. I would not, without deciding the matter, exclude the possible admission of the representations on the basis of s 65(2)(c).

TABLE A - Particulars of the Previous Representation

The prosecution relies on all representations made in the recorded interview between Clint McKindley and Detective Leading Senior Constable Paul Van Emmerik commencing at approximately 2.30 am on 20 May 2018, excluding representations made on pages 43-46 of the transcript. These representations are mirrored in the signed statement of the witness which representations are set out below.

Representations made in recorded interview between Clint McKindlay and Detective Leading Senior Constable Paul Van Emmerik commencing at approximately 2.30 am on 20 May 2018

On Saturday the 19th of May 2018 I was sitting at the corner of Maude Street and Vaughan Street, Shepparton outside of Coles.