M L v The Queen [2011] VSCA 193

1 The applicant is currently being tried for a number of offences, one of which is that on 24 December 2003 he anally raped the complainant.

2 Presently before me is an application for review of the refusal of the trial judge to certify under s 295(3) of the Criminal Procedure Act 2009 that certain evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

3 The issue in question is, on one view, not about the admissibility of evidence at all. The applicant having elected to give evidence, the real issue - on this view - is whether the prosecution was entitled to cross-examine him about certain statements he made to persons attached to the (Federal) Department of Human Services. The Departmental representatives had made notes of the conversation. Counsel for the applicant had used those notes when cross-examining the complainant. The prosecutor wished to use them during his cross-examination of the applicant. Counsel for the applicant objected. It was submitted that the applicant had made admissions to the Departmental representatives. These, he maintained, fell within the provisions of s 85 of the Evidence Act 2008 applied. That section provides:

1. Criminal proceedings - reliability of admissions by accused

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by an accused -

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or

(b) as a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account -

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning -

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

4 In my opinion the section is inapplicable. The statements made to the departmental witnesses were not admissions in any relevant sense. The expression 'admission' is defined in the dictionary to the Evidence Act 2008, as meaning a previous representation that is (a) made by a person who is or becomes a party to a proceeding, including a defendant in a criminal proceeding; and (b) adverse to the person's interest in the outcome of the proceeding.

5 In this case the statements by the applicant said to be admissions simply went to his account of a conversation which he had with the complainant some time well after the birth of the complainant's child in October 2005 and therefore more than two years after the offence on which the charge of anal rape was alleged to have occurred. They also included a statement that the couple had, shortly after the baby was born, and while the complainant was still sore as a result of the delivery, attempted to have sexual intercourse anally; but it had not been a success. No admission of wrongdoing was made, because there was no suggestion that the attempt was not consensual; and the incident has not resulted in any charge being laid - or perhaps even any complaint, though the material before me does not allow any conclusion about that. The Departmental notes of the conversation with the applicant record only that, in his words, they 'Never got full shaft because she didn't want it.'

6 In that sense, therefore, the statements made to the departmental officials were not adverse to the applicant's interest in the outcome of this proceeding; they only became so later, and then only because in his evidence in chief he said something different. As thus recounted, the statements made by the applicant to the Departmental representatives admitted nothing of relevance in relation to any charge which he faces in his current trial. In particular, they do not bear upon the charge that in December 2003 he anally raped the complainant.

7 Accordingly, the provisions of s 85(1) of the Evidence Act 2008 do not, in my opinion, apply. Even if they did, the circumstances in which the statements were made to the departmental representatives were such, in my opinion, as to make it likely that the applicant was then endeavouring to tell the truth. This, in other words, is a situation where the circumstances were such that it was unlikely that the statements were untruthful. Accordingly, s 85(2) is applicable because it provides that evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected; but it follows that (there being no other barrier to admission) an admission is admissible if it the circumstances in which it was made were such as to make it likely that it was true.

8 It was submitted in support of the application that s 86 of the Evidence Act 2008 was also relevant. That section applies only in a criminal proceeding and only if an oral admission was made to an investigating official in response to a question put or a representation were made by that official. I am prepared to accept, for the purposes of this submission, that the Departmental representatives were 'investigating officials'. For the reasons I have already stated, however, no relevant admission was, in my opinion, made on this occasion even if it could be said that an admission of any kind was made in the relevant passage of the conversation with those representatives.

9 In considering this application I am required by s 296(4)(a) of the Criminal Procedure Act 2009 to take into account the matters referred to in s 295(3) of the Act. I am accordingly required to consider whether, if my decision does concern the admissibility of evidence, that evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

10 The applicant must, in these circumstances, argue that his evidence given under cross-examination would, if ruled inadmissible, eliminate or substantially weaken the prosecution case. In one sense it could not, because the Crown case had closed. Put the other way, the question is whether the evidence, if admitted, would substantially strengthen the prosecution case not because it is positive evidence for the Crown but because, although it is the evidence of the applicant himself, its admission would substantially weaken the defence and in so doing substantially strengthen the opposition.

11 The applicant says that, in the particular circumstances of this trial, that indeed is what happened as a result of the answers given by the applicant in cross-examination being received into evidence.

12 The credit of the applicant was, as I am informed and as I accept for the purposes at least of this proceeding, crucial to the fate of the trial. The statements made by the applicant to the Departmental representatives do, as I understand the position, conflict with statements which the applicant made in examination-in-chief. The principal difference is to do with whether after December 2003, the date of the charge of anal rape, the complainant and the applicant discussed their having consensual anal intercourse. I accept for present purposes that the contrast between the evidence given in-chief and the evidence given under cross-examination was indeed such as to adversely affect the applicant's credit; but that does not, in my opinion, meet the test which is set out in s 295(3)(a) of the Criminal Procedure Act, given that the issue is the propriety of cross-examination, rather than the question of evidence that might be given under cross-examination.

13 There remains an issue which, above all else, is determinative of the fate of this application. Section 297 of the Criminal Procedure Act provides that the Court of Appeal may give leave to appeal against an interlocutory decision only if the Court is satisfied that it is in the interests of justice to do so.

14 The trial is now, however, about to conclude. The judge's charge having itself been completed, the jury has begun its deliberations. In these circumstances the Court of Appeal could not be satisfied in the terms of s 297(1) that it is in the interests of justice to grant leave to appeal. Indeed, by s 297(2), the Court must not give leave to appeal after a trial is commenced unless the reasons for doing so clearly outweigh any disruption to the trial.

15 Were the application to be granted and, as a consequence, the trial to be aborted at this stage, there would necessarily be a disruption that could not be more definitive. The utility of the interlocutory appeal procedure cannot here be called into aid by the applicant because that utility is entirely absent. The choice is between an outcome which will have the certainty of aborting a trial even as the jury is considering its verdict and one which may result in a verdict of not guilty - in which case the issues in contention here will not need to be resolved.

16 This application ought never to have been brought. It is important that the right to bring an interlocutory appeal be reserved for those cases for which they were clearly designed. In my opinion, this is not such a case.