DPP v Curran

2 The accused man and Mr Cervi were known to each other, and were associates, for some period leading up to the day on which Mr Cervi died. The deceased man owned a house at 7 Dalgety Street, Preston, and the accused man owned a factory property at 13 Guilfoyle Avenue, Coburg. While the deceased was living at his mother's house, he rented his house at Preston to the accused. When the deceased moved out of his mother's house, he in turn leased the accused's Coburg property from him. At a date shortly before 9 March 2009, the two men had made an arrangement that they swap residences, so that in effect they would reside in their own premises. As a result, on 9 March 2009, the deceased and the accused each moved out of their respective properties.

3 In the course of the day, some friction developed between the accused and the deceased man as to the state in which they had each left each other's premises. In addition, it appears that Mr Cervi was aggrieved with the accused who had accidentally broken his trailer in the course of the move. The telephone records reveal a number telephone calls and text messages passing between the two men throughout the day. There were also some communications by each of them to other persons, which revealed a degree of anger between the two men on the day in question.

4 Shortly after 7.30 pm, the accused man drove to the deceased's premises in Preston. The accused was accompanied by his girlfriend Janette Allan. The deceased man's girlfriend Kylie Berwick was at the Preston premises with her eight year old son Blake. Shortly after the accused man arrived at the Preston premises, there was an angry confrontation between the deceased and the accused on the front lawn of the premises. They commenced to scuffle and wrestle with each other.

5 In the course of that struggle, Ms Berwick saw the accused man holding a pistol by its handle with his right hand. The deceased was pushing the nozzle of the pistol to the ground. She then took her son into the bedroom and heard a gunshot. As a result, she telephoned Paul Bassi who was a friend of Mr Cervi. Following that call, Ms Berwick heard further shots fired. At about the same time, neighbours of the Preston house also heard gunshots and a female voice. Those gunshots resulted in a wound to the abdomen of the deceased from which he died. He also received a bullet wound to his right leg.

6 After hearing the shots, the accused man's girlfriend Janette Allan telephoned another friend and also telephoned emergency services on triple 000 in order to summons an ambulance. At about that time, Mr Bassi arrived accompanied by his partner Anna Anagnostopoulos and their three children. According to Mr Bassi's statement, when he arrived, a blonde head woman, that is, Janette Allan, told them to leave. At that time the accused man appeared. Mr Bassi asked him: "Where's Vinnie?", to which the accused responded: "You're fucking to blame for this". Mr Bassi said: "Let me in". To which the accused responded: "No one's fucking coming in, you're next". Mr Bassi then heard Ms Allan say to Ms Anagnostopoulos something about whether he had a gun. The accused man pointed with his left hand to Mr Bassi and said: "You're going to get it next".

7 Shortly after that interchange, Mr Bassi and his partner left. Subsequently on that evening Mr Bassi attended at Preston police station at about 10.20 pm, where he made a statement which was signed and acknowledged by him. Mr Bassi died before the committal proceedings in this case.

8 Mr Tinney, Senior Counsel, appears with Mr Sonnet to prosecute, has submitted that Mr Bassi's statement should be admitted into evidence under s 65(2)(b) of the Evidence Act 2008. Mr Casement who appears for the accused man has submitted that the statement is not admissible under that section. He has further submitted that I should in any event refuse to admit the evidence pursuant to s 137 of the Act. In addition to objecting to the passages of the statement to which I referred, Mr Casement also submitted that a number of other parts of the statement are objectionable in any event and should not be admitted.

9 However, in the course of argument it was agreed that I should rule only in relation to the admissibility of the parts of the statement of Mr Bassi, in which Mr Bassi says that the accused man made a threat to him that he would be next. Counsel each agreed that it would be more useful if I made that ruling only in relation to that part of Mr Bassi's statement, and that they would then confer between themselves to resolve any remaining issues relating to the admissibility of the rest of the statement.

10 I turn, first, to the question whether the part of the statement, in which Mr Bassi refers to the threat made to him by the accused, is admissible under s 65(2)(b) of the Evidence Act. Section 59(2)(1) of the Act provides that:

"Evidence of a previous representation made by a person is not admissible to prove the existence of a fact which it can reasonably be supposed that the person intended to assert by the representation."

11 Section 65(1) provides for some exceptions to that rule where the person who made the previous representation is not available to give evidence about an asserted fact. Not surprisingly, s 4(1)(a) of Part 2 of the dictionary to the Act provides that a person is taken not to be available to give evidence about a fact if the person is deceased.

12 Section 65(2)(b) provides that:

"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."

13 In order that the previous representation be admissible under that sub-section, two requirements must be met. First, the representation must be made when or shortly after the particular fact, related by the representation, occurred. Secondly, the statement must have been made in circumstances which make it unlikely that the particular representation of fact contained in it is a fabrication.

14 The authorities, which have considered s 65(2)(b), indicate that the tests postulated in it address two important aspects, each of which are concerned with the intrinsic reliability of the statement of fact contained in the representation. The first aspect stems from the requisite temporal relationship between the making of the statement and the event which is related. It would appear that the principal purpose of that requirement is to ensure that, at the time at which the statement was made, the witness's memory had not faded to the extent which might have affected the accuracy of the statement.

15 In Conway v R,[1] the Full Court of the Federal Court noted that the words "shortly after" constitute a departure from the strict common law test contained in the doctrine of res gestae.

16 In R v Mankotia[2], Sperling J considered that the purpose of the phrase shortly after was to ensure that a representation is only admissible if it is made at a time before the accurate recollection of events by the representator would not have faded. That approach was accepted as correct by Levine in R v Polkinghorne.[3]

17 In Conway v R, the Full Court of the Federal Court[4], expressly agreed with that analysis of the purpose of the phrase "shortly after" in s 65(2)(b).

18 In Williams v R[5], the Full Court of the Federal Court slightly qualified the test stated in the previous authorities so as to reflect the underlying purpose of the second aspect of s 65(2)(b), namely, that the representation be made in circumstances in which it is unlikely to be a fabrication.

19 In Williams'[6] case, the court thus expressed the temporal requirement of s 65(2)(b) in terms that the representation must:

"Be made spontaneously during, when or under the proximate pressure of 'shortly after' the occurrence of the asserted fact."

20 That statement by the Full Court was quoted, with approval, by the New South Wales Court of Criminal Appeal in Harris v R.[7]

21 The second requirement of s 65(2)(b) is that the representation must be made in circumstances which make it unlikely that the representation is a fabrication.

22 In considering that aspect of sub-paragraph (b), the cases have acknowledged the similarity of the manner in which it is expressed to the statement of the res gestae doctrine by Lord Wilberforce in Ratten v R.[8] In applying that test, the courts have emphasised the requirement that the identified circumstances, in which the representation was made, must be such as to make it unlikely that the statement was concocted or fabricated by the representor.

23 In considering that question, the consistency or inconsistency of the representation with other parts of the Crown case is relevant, but it is just one factor. See Williams v R,[9] but compare R v Ambrosoli.[10]

24 Each case necessarily depends on its own circumstances. In determining that question, the court is entitled to take into account, if it be the case, that the relevant representation was contained in a statement made to the police on a serious occasion, in circumstances in which the witness had signed the usual acknowledgement as to its truth and accuracy.[11]

25 On the other hand, it is also relevant for the court to consider whether the representor, at the time at which he made the statement, might have felt any need to state the facts in a particular manner, which might avoid or diminish any culpability for the described incident as attaching to him. Thus in Williams v R, the statement by the witness Stewart was held to held to be inadmissible because, on the facts of that case, Stewart himself might have been implicated in the offence, at least by being an accessory after the fact to it.

26 In this case, Mr Casement accepted that the statement by Mr Bassi, as to the threat made by the accused man to him, was made shortly after the event so described by Mr Bassi in his statement. In my view, that concession by Mr Casement is correct. The police officer who took Mr Bassi's statement, Sergeant Radi, conveyed Mr Bassi to the Preston Police Station at 10.20 pm. Mr Bassi made the statement at the station which he completed and signed at 12.34 am. Thus, it would seem that the statement was made at a stage at which Mr Bassi could be properly considered to be under the proximate pressure of the event described in the statement.

27 The submissions by Mr Casement focused on the second requirement of s 65(2)(b), namely, that the representation must be made in circumstances that make it unlikely that the representation is a fabrication. In this regard, Mr Casement relied on other evidence contained in the depositions, which, he submitted, is inconsistent with the statement by Mr Bassi that the accused man had said words to him to the effect that, "You are going to be the next".

28 In particular, he referred to two matters. Firstly, although Ms Anagnostopoulos in her statement to the police had said that the accused man had made that threat to Mr Bassi, in cross-examination at the committal, when she was asked to give her account of what the accused man said, she did not say that the accused man did make that threat to Mr Bassi.

29 Secondly, at the time at which the accused man verbally confronted Mr Bassi after his arrival at the Dalgety Street premises, Ms Allan was speaking to Emergency Services on the telephone. Although Mr Curran's voice can be heard on the recording of that call, speaking angrily to Mr Bassi, he is not heard on that recording making a threat to Mr Bassi that he would be next.

30 Those two matters, Mr Casement submitted, were inconsistent with the evidence contained in Mr Bassi's statement and thus, he submitted, stood in the way of the proposition that it was unlikely that the statement is a fabrication.

31 On the other hand, Mr Tinney submitted that the matters, relied on by Mr Casement, do not relevantly affect the probabilities of the statement by Mr Bassi not being a fabrication. He submitted that although Ms Anagnostopoulos did not recount the threat by the accused to Mr Bassi when she was cross-examined at the committal proceeding, she did describe that threat in her statement, which she adopted in her evidence-in-chief at the committal. Further, he submitted that the recording of the 000 call by Ms Allan did not necessarily contain everything which was said the accused man, or indeed by Mr Bassi.

32 In addition, Mr Tinney submitted that there is other evidence, which supports the likelihood that Mr Bassi did not fabricate that part of his statement which relates that the accused man had threatened him. In particular, he pointed to evidence that the accused man was, at that stage, in a very angry frame of mind. He expressly blamed Mr Bassi for being somehow responsible for what had happened. In that context, it was quite feasible that the accused would have made the threat to Mr Bassi, which is attributed to him in Mr Bassi's statement.

33 Having considered the matters argued by counsel, I am persuaded that the representation, contained in Mr Bassi's statement, that is, that the accused man made the threat to him that he would be next, was made in circumstances, which make it unlikely that the representation was a fabrication. I have reached that conclusion for four principal reasons.

34 First, the statement was made by Mr Bassi on the same evening as the events described by him, at what would seem to be the earliest practicable opportunity for him to do so. The statement was made shortly after the occurrence of a serious incident, and in circumstances in which Mr Bassi would have realised the importance of what he was doing.

35 According to Mr Radi's statement, Mr Bassi read the statement over and initialled each page of it. Mr Radi explained the acknowledgement which Mr Bassi then read and signed in his presence. That acknowledgement is in the usual form, namely "I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury".

36 Secondly, at the same time, Mr Bassi's partner, Ms Anagnostopoulos, made her statement to a different police officer at Preston which she signed and acknowledged at 12.36 am. In that statement, she gave a similar description of the threat made by the accused man to Mr Bassi. She apparently did not know the accused man, but said that the man (who appears was the accused) said: "Go or you're next". There is nothing in the depositions, which suggests that there had been any collaboration between Ms Anagnostopoulos and Mr Bassi before Ms Anagnostopoulos made her statement. The fact that Ms Anagnostopoulos did not remember that aspect of her evidence, in cross-examination at the committal, may effect the jury's ultimate assessment of her reliability as a witness, in relation to that aspect of her evidence. However, it does not, in my view, affect the probabilities of whether the statement by Mr Bassi, namely, that the accused man had threatened in the manner described, was a fabrication.

37 The third relevant matter is that it is clear, on the evidence, that when Mr Bassi arrived at the premises at Dalgety Street, the accused man was in a particularly irate frame of mind. In particular, he was very angry with Mr Bassi, who he considered in some way to have been responsible for the fact that Mr Cervi had been shot. On the triple 000 call, he can be heard directing his anger at Mr Bassi in aggressive terms. After saying to Mr Bassi that he had started it, which Mr Bassi denied, the accused man is heard to say angrily: "Fucking grab that and I'll finish it now". Those circumstances, in my view, add to the improbability of the relevant part of Mr Bassi's statement, with which I am concerned, being a fabrication.

38 In this connection I do not consider it to be particularly significant that the recording of the triple 000 call does not include the making of the threat by the accused man to Mr Bassi that he would be next. The recording is of a conversation between the emergency services operator and Ms Allan. It does pick up parts of what the accused man and Mr Bassi said. However, some parts of the conversation are quite faint. In those circumstances, it is quite possible that the recording of the triple 000 call would not contain the whole of the confrontation between the accused man and Ms Bassi.

39 The fourth matter, which supports the admissibility of the representation under s 65(2)(b), is that shortly after the threat was made, Mr Bassi and Ms Anagnostopoulos departed from the Dalgety Street premises. Mr Bassi had specifically driven to those premises at Dalgety Street at the request of Kylie Berwick. When he left, he had not seen Ms Berwick. He had not been allowed in the yard of the property. He had previously been told that Mr Cervi, who was a long standing friend of his, had been shot. In those circumstances, it is likely that Mr Bassi only left at that stage for a good reason, which outweighed his intention to stay and render assistance to Ms Berwick and Mr Cervi. That consideration adds to the probability that he left, because of a pressing concern for his safety and his family's safety.

40 In those circumstances, I am satisfied that the representation, referred to by Mr Bassi, that is, that the accused man made a threat to him that he would be next, was made in circumstances which make it unlikely that the representation was a fabrication. Accordingly, and subject to the application of s 137, I am satisfied that the representation would be admissible under s 65(2)(b) of the Act.

41 That being so, I turn to s 137 of the Evidence Act which provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant". It must be noted that the provision does not provide for the exercise of any discretion by the court. Rather, if the probative value of the evidence is outweighed by the danger of unfair prejudice to an accused person, I am required to exclude the evidence.

42 Mr Casement submitted that I should exclude the evidence pursuant to s 137. First, he submitted that the evidence is of limited probative value. He argued that it is clear that the accused man had a grievance with Mr Bassi. The threat, which he is alleged to have made, was directed to Mr Bassi and had little, if anything, to do with had already occurred to Mr Cervi.

43 Mr Casement further submitted that the admission of the evidence would occasion unfair prejudice to the accused because of the risk of improper use of that evidence by a jury. He particularly submitted that the admission of the evidence might give rise to the jury indulging in impermissible propensity reasoning, namely, that if the accused man did make that sort of threat, then he is the sort of person who was likely to be involved in the violence alleged by the Crown in this case. Mr Casement also referred to the prejudice to the accused man, in that his counsel would not be able to cross-examine Mr Bassi, although, it would appear that that aspect of the prejudice was not of the forefront of Mr Casement's submissions.

44 In response, Mr Tinney submitted that the evidence is of substantial probative value. In particular, the threat by the accused that Mr Bassi would be next is, he submitted, an implied admission by the accused that he had already shot Mr Cervi. He submitted that it is unlikely that the jury would indulge in the impermissible propensity reasoning suggested by Mr Casement, but he contended that, in any event, such prejudice could be adequately nullified by an appropriate direction by me to the jury.

45 Mr Tinney accepted that there would be some disadvantage, and thus prejudice, to the accused, in the defence of the case should the evidence be admitted, because of the inability of counsel to cross-examine Mr Bassi. He submitted that that prejudice can be appropriately allayed by the usual hearsay direction given to the jury. He submitted that any residual prejudice would not be sufficient to offset the probative value of the evidence.

46 In the course of submissions, I raised the question with counsel as to how the statement of Mr Bassi would be presented to the jury, if I admitted it into evidence. I was concerned that, clearly, there are a number of parts of the statement which would need to be deleted from it, as on any view they are not admissible. Those redactions would have the tendency to give undue prominence to the remaining sections of the statement, if the statement was presented to the jury in documentary form.

47 In response to my raising that concern, Mr Tinney undertook that, if I ruled that the statement was admissible as containing the threat by the accused man to Mr Bassi, he would not seek to tender the statement as a document, but, rather, would confine himself to reading it into evidence. Mr Casement agreed that if I were to admit the statement in evidence containing that threat, it should be read to the jury and not tendered in documentary form.

48 In my view, the evidence of the statement by the accused man to Mr Bassi, that he was "going to get it next", would have reasonably substantial probative value in this case. Firstly, the use the adverb "next" is capable of giving rise to the inference that the accused man had already "got" someone else, namely, the deceased. Thus, it would be capable of constituting an implied admission by the accused man that he had already shot Mr Cervi. But, in any event, at the very least, the evidence is a piece of evidentiary material which would support the Crown case that the accused man had fired the shot which killed Mr Cervi.

49 Secondly, the evidence of the threat made by the accused man to Mr Bassi adds to the evidence sought to be adduced by the Crown, of the accused's highly inflamed state of mind shortly after Mr Cervi had been shot. As I understand it, the prosecution case is that the killing in this case was the result of uncontrolled anger by the accused.

50 Accordingly, the threat made to Mr Bassi is relevant in that respect as supporting the prosecution case as to the level of anger of the accused man shortly after Mr Cervi had been fatally wounded.

51 The question, then, is whether the probative value of the evidence is outweighed by the danger of any unfair prejudice to the accused. The fact that the evidence is of probative value against an accused person does not, of course, mean that it has unfairly prejudicial effect in the case. Section 137 is concerned with unfair prejudice, such as might occur where there is a risk of evidence being misused by a jury in an in impermissible manner.

52 I do not consider that there is any particular risk of the misuse by the jury of evidence in this case in the manner contended for by Mr Casement. The jury will well understand the basis on which it is sought to be used by the prosecution, namely, in the manner which I have just described. I very much doubt that there is a risk of a jury indulging in the impermissible propensity reasoning suggested by Mr Casement. However, in any event, in my view, any such risk can be sufficiently allayed by an appropriate direction by me to the jury.

53 Of greater concern to me is the fact that, if I were to admit the evidence, it would not be able to be tested and challenged in cross-examination by Mr Casement. Although there is some conflict in the authorities on this point, it does appear that the preponderance of the cases do support the proposition that unfair prejudice, referred to in s 137, may include or consist of an unfair forensic disadvantage to an accused in defending a charge against him. See Kennedy v Wallace[12]; R v Suteski[13]; R v Le[14]; and Galvin v R.[15]

54 The fact that the defence is unable to cross-examine Mr Bassi, whose statement is to be tendered, is, I consider, a matter of some unfair prejudice to the accused. Cross-examination is an important tool in the hands of counsel for the defence, and its importance should not be understated. It is, essentially, an element of an accused person's right to be heard.

55 The critical test is whether the probative value of the evidence in this case outweighs the unfair prejudice arising to the accused as a result of his inability to have his counsel test it by cross-examination.

56 As I have already stated, I consider that the part of the evidence of Mr Bassi, in which he relates the threat made to him by the accused, has reasonably substantial probative value in respect of the prosecution case against the accused. If I admitted that part, or indeed, any part of the statement by Mr Bassi, I would direct the jury, pursuant to s.165 of the Act, that they must exercise caution in the use of that evidence for a number of reasons, including that it was not on oath; the jury did not have the opportunity to hear Mr Bassi relate the evidence first hand to them; they did not have the opportunity to observe his demeanour in giving that evidence, and most importantly, they did not have the advantage of seeing and hearing the evidence tested by cross-examination.

57 I accept that those directions would not entirely eliminate all the disadvantage to the accused in not being able to the test the evidence by cross-examination. However, in my view, such a direction would to a significant extent, reduce that disadvantage. The direction would as I have noted, in plain terms, require the jury to exercise particular caution concerning accepting the truth and accuracy of the statement. It would specify to the jury the particular reasons why the statement may be unreliable.

58 The experience of the law, and of this court, is that juries are particularly astute to follow directions of the type which I have adumbrated, and that they do have an appropriate appreciation of the type of reasons why such directions are given to them. Furthermore, as I have already noted, in this case the evidence will be read to the jury, and not tendered to them in a written statement, and thus it will not assume undue prominence in the trial.

59 In those circumstances I do not consider that the probative value of the evidence in the statement of Mr Bassi, of the threat made to him by the accused, is outweighed by the danger of any unfair prejudice to the accused. Rather, I am of the opinion that the probative value of the evidence substantially outweighs any danger of any unfair prejudice to the accused arising out of the fact that the accused's counsel cannot cross-examine Mr Bassi.

60 For those reasons I do not uphold the objection to that part of the statement by Mr Bassi, in which he refers to the threat made to him by the accused that he was going to be the next, and I rule that that part of his statement is admissible.

61 As I have already foreshadowed, there are other parts of the statement by Mr Bassi, to which Mr Casement stated that he objected. In submissions, I did express some preliminary views as to some of those matters. As noted, it has been agreed that counsel would confer in relation to them and I think that that is the better course to follow. For, Mr Casement might, in fact, wish the statement to retain some of the parts which might otherwise be the subject of legitimate objection. I shall therefore defer ruling on those matters, but if there is any dispute in relation to them, I can hear and consider that dispute I think quite shortly.

[1] [2000] FCA 461; (2000) 98 FCR 204, [123].

[2] [1998] NSWSC 295.

[3] [1999] NSWSC 704.

[5] [2000] FCA 1868.

[7] [2005] NSWCCA 432, [36] to [37].

[8] [1972] AC 378, 388 to 390.

[10] [2002] NSWCCA 386, [28] to [29].

[11] Harris v R, above [44] to [45].

[12] [2004] FCA 332; (2004) 208 ALR 424, 455 to 457, [122]-[128] (Gyles J).

[13] [2002] NSWCCA 509; (2002) 56 NSWLR 182, 201, [126] (Wood CJ).

[14] [2002] NSWCCA 193; (2002) 130 A Crim R 256, 288 to 289, [93] to [96] (Sheller JA).

[15] [2006] NSWCCA 66; (2006) 161 A Crim R 449, 459 [40] (Howie J).