DPP v Price & Brown

2 The prosecution case is that on the night of 15-16 April 2020, Samantha Guillerme communicated with Mr Lovison, and arranged for him to meet with her under the pretext that he could buy drugs from her. Mr Lovison rode his bike to the place suggested by Ms Guillerme, unaware that she was in a car with Mr Brown and Mr Price. Mr Lovison was then driven to the Moondarra State Park, where he and the accused (both of whom were carrying guns) got out of the car and went into the bush. The prosecution allege that the accused administered, or forced Mr Lovison to ingest, GHB in quantities that ultimately led to his death. Mr Lovison's body was not discovered until 23 May 2020.

3 The prosecution allege that the murder was the culmination of Mr Price's jealousy over Mr Lovison's ongoing contact with Angela O'Brien, who was Mr Price's current girlfriend and Mr Lovison's former girlfriend. There had been gossip - some accurate, some inaccurate - that Ms O'Brien had continued a sexual relationship with Mr Lovison whilst she was dating Mr Price. The two men had previously been involved in verbal and physical arguments with each other.

4 Ms Guillerme was originally also charged with murder. She subsequently pleaded guilty to a charge of manslaughter, and gave an undertaking to give evidence at the trial of the co-accused. She was sentenced by Croucher J on 9 February 2023.

5 The prosecution wish to lead evidence from various witnesses as to the nature and extent of the relationship between Mr Lovison and the accused, particularly Mr Price. One of those witnesses is Patrick Alan, who lived at relevant times in properties owned by Mr Price. Mr Alan subsequently moved out, after his relationship with Mr Price deteriorated over an allegation concerning a stolen chainsaw.

6 Mr Alan's proposed evidence addresses various things he saw, heard or did over relevant periods, including in the lead up to Mr Lovison's death. The prosecution want to rely on Mr Alan's evidence to establish that the accused had the motive and intention to kill Mr Lovison, and had been planning ways to kill him for some time.

7 Mr Alan gave two witness statements to police on 26 April 2020, at a time when Mr Lovison was still considered to be a missing person. The first statement concerned Mr Alan's account of Mr Price and Mr Brown coming to his home in the early hours of that morning, cutting his power and threatening him with a gun. The prosecution will not seek to rely at trial on most of the contents of the first statement.

8 The second statement concerned Mr Alan's knowledge of the relationship between Mr Lovison and the accused, including references to various conversations in which Mr Price told Mr Alan that he wanted to have Mr Lovison killed. The second statement is of direct relevance to the murder charge.

9 On 19 May 2020, Mr Alan participated in a significant witness interview with police, which was recorded and transcribed ("the interview").

10 Mr Alan mentioned in the interview that he was in poor health. He said that he had various health issues, including diabetes and cancer, and the prognosis was not good. Mr Alan said that he had overheard his doctor saying that he may only have six to eight months left.

11 Mr Alan gave evidence at the committal on 16 November and 2 December 2021. At the start of his evidence, he was shown his two witness statements and the transcript of the interview; he affirmed the truth and accuracy of all of them. He was then cross-examined by counsel for Ms Guillerme and Mr Price. However, counsel for Mr Brown were unable to cross-examine Mr Alan at the committal because of Mr Alan's ill health.

12 After the accused had been committed to this court, on 26 May 2022 Mr Alan was examined pursuant to s 198B of the Criminal Procedure Act 2009 ("CPA") before a judicial registrar. At the start of his evidence, he again affirmed the truth and accuracy of the statements that had been put to him at the committal. He was then cross-examined by Mr Brown's counsel.

13 At the post-committal directions hearing on 8 December 2021, Mr Alan's health issues were discussed, including the fact that he had dialysis three times per week. The possibility of his evidence being pre-recorded was raised. It was raised again at directions hearings before a judicial registrar on 9 March, 7 June and 19 August 2022, including discussions about the logistics of recording Mr Alan's evidence around his dialysis. The parties were all provided with documents relating to Mr Alan's medical problems.

14 After ascertaining counsel and witness availability, in late October 2022 I listed the pre-recording of Mr Alan's evidence for 28 and 30 March, and 27 April 2023.

15 Mr Alan died on 27 January 2023, without his evidence having been pre-recorded under s 198 of the CPA.

16 The prosecution filed a hearsay notice dated 14 February 2023 in relation to the contents of Mr Alan's witness statements and interview, and his evidence at the committal and s 198B hearings ("the Alan materials"). The Alan materials contain 281 pages of text. Perhaps because of the sheer size of the task, the hearsay notice did not specify particular representations which were relied upon, instead it referred in general terms to the Alan materials.

17 On 7 March 2023, the prosecution filed written submissions relating to the admissibility of the Alan materials. In the submissions, the prosecution identified particular subject matters or portions of the Alan materials that the prosecution proposed to seek to tender. Attached to the prosecution submissions were copies of the two witness statements and interview transcript, which had been redacted to remove material upon which the prosecution no longer propose to rely. In their submissions, the prosecution argued that the relevant parts of the Alan materials are admissible under s 65(2)(c) and/or s 65(3) of the Evidence Act 2008 ("the Act").

18 Mr Brown and Mr Price filed separate written submissions in response, dated 21 March 2023. They both addressed portions of the Alan materials that were of particular concern to them, and outlined their bases of objections to admissibility. Much of the Alan materials was objected to on the grounds that it was not first-hand hearsay, and was therefore inadmissible under either s 65(2) or (3).

19 On 28 March 2023, I began hearing oral argument as to the admissibility of the unredacted parts of the Alan materials. By this time, the prosecution were only pressing for admission under s 65(3) of the Act. The parties said that they had been able to narrow some of their disputes about the Alan materials, however, they were in disagreement about one aspect of the proper construction of the relevant provisions. The parties said that, were I to indicate my views on the statutory construction point, that would be likely to lead to the resolution of many of the outstanding issues, without the need for argument and ruling on numerous individual representations. Accordingly, I heard argument from both sides on the general statutory construction point, and reserved my decision until the next day.

20 At the start of the hearing on 29 March, I informed the parties that I favoured the construction advanced by the defence. As the matter had only been argued at a level of general principle, I said that if either party wanted a formal ruling, they would need to identify a specific representation or representations that could then be the subject of a ruling. After standing the matter down to allow the parties to identify suitable representations, the following representations were put forward.

21 The first representations relied upon by the prosecution are representations to the effect that Mr Price offered Mr Alan $50,000 to kill Mr Lovison. In fact, there are several separate representations relating to this topic.

22 At page 2 of the second statement, Mr Alan said:

Then he started a conversation about how much it would cost to kill someone. He said it was 'Lovo' he wanted killed. He said "I want him rid of because he is ruining my life with Ange". He said that 'Lovo' would text him that he had had sex with Ange and it was fucking with him. I said to him "you understand the consequences of doing that to someone" and he said "if there's no body there's no evidence." He spoke about it so casually, not nervous or anything. He said "is $50,000.00 enough" and I said "it might be, I don't know what the prices are". I told him straight out that I wasn't interested and he asked if I knew anyone that was. I didn't know anyone.

23 A similar representation was made in the interview:

Q 639 Now, obviously in your statement there's - there is - and I know we've touched on it briefly, but there are specific suggestions that you were present when Pricey offered you $50,000 - - -

A Mm'hm.

Q 640 - - - specifically. When - when - when was it that he first offered you $50,000, or a sum of money?

A I think when he first showed me that Winchester, I'm pretty sure.

Q 641 And when was that?

1. God, he mentioned it so many bloody times now I can't remember exactly what date or anything. But - - -

Q 642 Mm'hm.

A It would've been when I was living in March Street.

Q 643 All right, O.K.

A Mm, 21 March Street, mm.

Q 644 And so he's offered you a sum of money on a few occasions. Is that fair to say?

A Mm'hm, yep.

24 The second representation relied upon by the prosecution is that in October or November 2019, Mr Price and Mr Brown spoke to Mr Alan about going and getting Mr Lovison that night because he had broken Mr Price's arm.

25 The actual evidence as to the second representation comes from the interview:

Q 318 When are we talking now, sorry?

A That would've been - I guess October or November maybe - - -

Q 319 Of last - - -

A ..........

Q 320 - - - year.

A Yeah.

Q 321 Mm'hm.

1. And they were talking about going and getting this Love-oh that night, because [redacted] - - -

Q 322 Mm'hm.

1. - - - Love-oh had bashed Pricey and broke his arm, yeah, at Angela's house.

Q 323 Yep.

1. Yeah. So he was a hell of a lot more angry at the bloke after that.

Q 324 [redacted]

1. Lot of talk.

Q 325 Yeah. A lot of talk. And so were you present during all of this talk.

1. Most times.

26 If Mr Alan was still alive, he may have been able to give evidence of those particular representations under s 81 of the Act, on the basis that they constituted admissions by the accused adverse to their interests.[1]

27 However, the effect of Mr Alan's death is that he is no longer able to give evidence at trial. Instead, the prosecution need to establish the admissibility of his previous accounts under one of the exceptions to the hearsay rule. The admissions exception in s 81 would no longer be available, as s 82 specifically limits it to first hand hearsay.

28 The relevant exception for the purpose of this ruling is s 65, which applies where the maker of a previous representation is "not available to give evidence". There is no dispute that Mr Alan is relevantly unavailable.

29 The hearsay rule is contained in s 59(1), and provides that "evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation." Such a fact is called an "asserted fact" (s 59(2)).

30 The prosecution argue that the first and second representations are admissible under the exception in s 65(3), which provides that:

The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied -

(a) cross-examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

31 Section 65(3) is the only provision in Division 2 of Part 3.2 that does not require evidence of hearsay to be given by a person who saw, heard or otherwise perceived it being made. Instead, evidence of the making of a representation to which s 65(3) applies can be given by tendering the relevant court transcript or recording (s 65(6)).

32 The contents of Mr Alan's witness statements and interview were adopted as true and accurate in the committal and s 198B hearings, and were thereby incorporated by reference into the evidence at those hearings. The first and second representations are therefore to be treated as representations "made in the course of giving evidence in an Australian proceeding", for the purposes of s 65(3).

33 The prosecution argue that the effect of s 65(3) is to make admissible all representations made by Mr Alan during the committal and s 198B hearings, or at least the first and second representations.

34 The defence argue as follows. Just because a statement or transcript may be admissible through the mechanisms in ss 65(3)-(6), that does not remove the requirement to construe s 65(3) by reference to other relevant provisions in the Act. By reason of s 62, s 65(3) only permits the admission of first-hand hearsay. The first and second representations are not first-hand hearsay, and are therefore inadmissible on that basis alone.

35 There are several aspects of the concept of a "previous representation" that need to be considered.

36 The Dictionary to the Act defines "previous representation" as "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced". It is common ground that the committal and s 198B hearings were not "the proceeding in which evidence of the representation is sought to be adduced".[2] Accordingly, the first and second representations satisfy the Dictionary definition of a "previous representation". However, that is not the end of the matter.

37 Section 62 of the Act places limits on the type of hearsay that may be permitted under some of the exceptions to the hearsay rule. Section 62(1) relevantly provides that a reference in Division 2 of Part 3.2 of the Act to a previous representation is "a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact". Section 62(2) provides that a person has personal knowledge of the asserted fact if their 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." This provision is often described as the "first-hand hearsay" requirement.

38 Section s 65 falls within Division 2 of Part 3.2 of the Act. The prosecution accept that the s 62 requirement of personal knowledge applies to evidence sought to be admitted under s 65(2). But the prosecution argue that s 62 requirement does not apply to evidence sought to be admitted under s 65(3). I reject that argument, for the following reasons.

39 As a matter of ordinary statutory construction, the s 62 requirement of personal knowledge applies to the whole of s 65, including s 65(3).

40 Section 65(3) also needs to be considered in the context in which it appears, namely as part of s 65, which is an exception to the hearsay rule.

41 All of the exceptions to the hearsay rule in Division 2 of Part 3.2 of the Act need to be understood in light of the view that "second-hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown, together with a need for its admissibility".[3]

42 Section 65 is a specific provision that applies in a criminal proceeding, if the maker of a previous representation is not available to give evidence about an asserted fact. Section 65 tries to impose some "guarantees of reliability", by requiring that the previous representation was made in one or more of certain prescribed circumstances set out in sub-sections (2) and (3). In the case of a previous representation sought to be admitted under s-s(3), there is no need to call someone to give evidence about the circumstances in which the representation was made; the court transcript or recording suffices. But there is nothing about the structure or contents of s 65 to suggest that the legislature intended that a previous representation made in another hearing would not be subject to the first-hand hearsay requirement of s 62.

43 The s 65(3) exception does not appear to have been considered in many cases, unlike the various exceptions in s 65(2). Those cases which have considered s 65(3) have generally concerned previous representations made by a complainant who has since died about what happened to them; such matters are obviously within the complainant's "personal knowledge", so questions of the relationship between s 62 and s 65(3) have not needed to be considered.

44 The parties were only able to refer to two cases in which the question whether s 65(3) evidence is restricted to first-hand hearsay was discussed: R v Dillon (No 3)[4] and R v Bagster.[5] Although those decisions are not binding on this court, I agree with the analysis and conclusions in them.

45 In Dillon, the accused was charged with murder. During the committal hearing, a witness, Mr Obeid, gave evidence about an altercation between the accused and the deceased that occurred shortly before the fatal stabbing. Mr Obeid relevantly said that he heard the accused say, "Next time I see you, I'm going to shank you, you dog."

46 The trial judge, Campbell J, held that, by the time of the trial, Mr Obeid had become unavailable to give evidence, due to cognitive and mental health problems. The prosecution sought to have Mr Obeid's committal evidence of the threat admitted under s 65(3), as evidence of the accused's state of mind shortly before he stabbed the deceased. The court held that s 65(3) did not permit evidence of an out of court representation by one person (the accused) to be given by the out of court representation by another person (Mr Obeid).[6]

47 In Bagster, there was a retrial of an unlawful killing charge, after the first jury had been unable to come to a verdict. During the first trial, Ms Wright gave evidence that the deceased, Ms Birch, had told her that she had been bashed, hog-tied and gagged by Mr Bagster on a previous occasion. The evidence was admitted at the first trial under s 65(2), on the basis that Ms Birch was unavailable to give evidence. Ms Wright died between the first and second trials. At the second trial, the prosecution sought to tender the transcript of Ms Wright's evidence from the first trial, including what Ms Birch had told her about being assaulted on the earlier occasion.

48 Mr Bagster did not take issue with the admission of Ms Wright's transcript generally, but did object to the admission of the portions of the transcript which contained Ms Birch's assertions to Ms Wright about what Mr Bagster had said and done to her. The trial judge held that s 65(3) was subject to s 62(2). Because the relevant portions of the transcript were second-hand hearsay, they were thus inadmissible.

49 Had the legislature wanted to permit all evidence contained within transcript or previous statements adopted in court to be admitted, it would have been easy to do so (for example, by enacting s 65(3) as a stand-alone provision, outside Division 2 of Part 3.2 of the Act). There is nothing in any of the extrinsic materials to support the construction of s 65(3) advanced by the prosecution.

Are the first and second representations first-hand hearsay?

50 The prosecution can lead evidence of relevant representations made by Mr Alan in the committal or s 198B hearings, provided that he had the relevant personal knowledge of the fact(s) asserted by the representation.[7] It is therefore necessary to consider the fact(s) sought to be asserted by the first and second representations, and whether Mr Alan had personal knowledge of them.

51 Mr Alan had personal knowledge (via his sense of hearing) of whatever words Mr Price and Mr Brown actually spoke to him or in his presence. However, in the case of the first and second representations, the prosecution are not seeking to rely only on the fact that Mr Alan heard the relevant words being spoken; that is not a matter that is relevant to, or probative of, any issue in dispute.

52 Instead, the prosecution want to rely on the first and second representations to establish the truth of what Mr Alan said that the accused said; namely, that Mr Price did want to kill Mr Lovison and offered to pay $50,000 to make that happen, and that the accused did intend to go and "get" Mr Lovison because he had broken Mr Price's arm. Mr Alan's knowledge of the accused's actual intentions or state of mind (the asserted facts) is based on "a previous representation made by another person [namely, the relevant accused] about the fact". By virtue of s 62(2), Mr Alan does not have "personal knowledge" of the relevant asserted facts.

53 It follows that the first and second representations are not admissible under s 65(3).

[1] I say "may have", as admissibility would also need to be considered having regard to s 137 of the Act.

[2] In Hoy Mobile Ltd v Allphones Retail Pty Limited [2008] FCA 369; (2008) 167 FCR 314, Rares J held that earlier interlocutory proceedings were not "the proceeding in which evidence of the representation is sought to be adduced". The correctness of that decision (albeit a civil one) was not disputed before me.

[3] Lee v The Queen (1998) 195 CLR 594, [35].

[4] [2019] NSWSC 1537.

[5] [2022] NSWDC 300.

[7] Admissibility would also be subject to the cross-examination requirements of s 65(3), (4) and (5) being met, and the evidence not being excluded under s 137. However, the parties agree that I do not need to make any findings in relation to those matters, for the purpose of this statutory construction ruling.