R v Anyang

(2) Section 65(2) and (3) should apply notwithstanding the prosecution's failure to give notice under s 67 of the Act.

(3) Mrs Beggs' witness statement (assuming it is proved) falls under s 65(2)(b) and her evidence at the committal on 26 August 2009 (depositions pages 40 to 45) falls under s 65(3) of the Act, such that the hearsay rule does not therefore apply.

(4) Mrs Beggs' statement and evidence at the committal are not excluded by operation of s 137, but the circumstances which led to her not giving evidence orally should be led by the prosecution unless the defence objects to that evidence, and, if necessary, I would impose a condition requiring the prosecution to lead that evidence.

2 These are the reasons which I foreshadowed on 17 February 2011.

3 Mrs Beggs was 75 years old at the time of the relevant events. She is now 78. According to evidence from the solicitor at the Office of Public Prosecutions responsible for this matter, Mrs Beggs has been reluctant to give evidence for some time and concerns about the state of her health have been raised previously. Matters came to a head on Monday 14 February 2011 when the prosecution insisted that she attend court. She did so in the company of her daughter and was seen by the OPP solicitor and senior counsel for the prosecution. I was given a description of her condition from the Bar table and evidence was led from the solicitor concerning her condition that day. On Tuesday 15 February 2011 the OPP solicitor received a facsimile transmission from Mrs Beggs' general practitioner which read as follows:

"This is to certify that Pamela's cognitive recall has declined over the past few years and she is no longer able to remember clearly details of the assault she witnessed."

4 As a result of the assessment of Mrs Beggs made by senior counsel for the prosecution and the OPP solicitor, application was made to tender Mrs Beggs' written statement, which was made very shortly after the events in question, and her evidence at the committal, where she was cross-examined by counsel for the accused, relying on s 65 of the Act.

5 Both senior counsel from the Bar table (who counsel for the accused accepted as being accurate), and the OPP solicitor in oral evidence, described Mrs Beggs when she attended court as being entirely disengaged, unable to respond to questioning either from themselves or from her daughter, and oblivious to her surroundings.

6 In the course of argument, counsel for the accused told me that he did not argue that Mrs Beggs did not fall within the definition of "unavailability" in clause 4 of Part 2 of the Dictionary.

7 My conclusion was that Mrs Beggs is mentally unable to give evidence and it is not reasonably practicable to overcome that inability.

8 The full circumstances in relation to Mrs Beggs became apparent during the course of the trial itself, and the issue of her capacity to give evidence came to a head only when the prosecution insisted that she attend court. In the circumstances it seemed to me that it was appropriate to direct that s 65(2) and (3) should apply notwithstanding the failure to give notice under s 67.

9 Counsel for the accused argued that Mrs Beggs' evidence as constituted by her statement and her evidence at the committal should be excluded under s 137.

10 Counsel for the accused submitted that Mrs Beggs' evidence was potentially the most significant evidence on count 4, the charge of assault upon Abul Akol. It was submitted that the probative value of her evidence on that count is significantly reduced by the following factors:

(1) It was submitted that in a number of important respects her evidence is contrary to the prosecution case and inconsistent with, or contradictory to, the evidence given by other prosecution witnesses. It was submitted that Mr Wach did not give any evidence of an assault such as described by Mrs Beggs, and that Ms Akol likewise did not describe any such assault either in her evidence given orally in the trial or in her statements which were tendered.

(2) It was submitted that the probative value of her evidence is reduced because there can be no doubt that she is wrong about at least one aspect of her identification of the various persons involved, in that she was adamant that there was a second female of African appearance present. It was further submitted that this is particularly significant given that her description of the one male involved was scant and confusing and could be either the accused or Mr Wach.

11 It was also submitted that there was significant unfairness in admitting Mrs Beggs' statement and her evidence at the committal. In that regard the submissions were:

(1) At the time that Mrs Beggs gave evidence at the committal it was not known that Mr Wach would subsequently give evidence that he had himself gone to the boot of the car and taken a stick out. The accused has lost the opportunity to put that evidence to Mrs Beggs.

(2) Whilst it is now clear that Mrs Beggs has cognitive difficulties, it is unknown how long that position has persisted. She may have had cognitive difficulties at the time of the incident and at the time she gave evidence at the committal.

12 Counsel for the defence referred to what he described as a difference of approach between the courts in New South Wales and in Tasmania concerning whether, under s 137, regard could be had to issues of credibility and reliability. The authorities in New South Wales were said to support the view, described as the "narrow" view, that regard could not be had to issues of reliability and credibility, whereas Tasmanian authority was to the contrary. He submitted I should not follow the "narrow" approach.

13 Counsel for the accused also sought to distinguish the Court of Appeal decision in R v Darmody[1] submitting that the loss of opportunity to cross-examine on a matter unknown at the committal is of great moment here, and that the additional matter which has arisen since the committal in this case is of real significance and not a matter of mere assertion as had been the position in Darmody.

14 Senior counsel for the prosecution relied upon Darmody and submitted that the evidence should be admitted. She submitted that all of the circumstances should be placed before the jury so that the issue of her cognitive problems would be known to them. She submitted that s 65 was directed towards this very situation. She submitted that the "narrow" view of s 137 must be adopted and that the New South Wales decisions had been followed in Victoria in DPP v McRae.[2] Thus, she submitted, unless no reasonable jury could act on the evidence, for the purposes of s 137 the evidence should be taken as being reliable.

15 The account of events given by Mrs Beggs differs from that given by other witnesses, but, as I have observed in another ruling in this case, that is unsurprising when dealing with an incident of this kind. The suggested discrepancy between her account and that of Mr Wach, on one view, amounts to little more than that Mrs Beggs describes something which Mr Wach says that he did not see. Given the circumstances, there would inevitably have been some things Mr Wach did not see. As I observed in the course of argument, with the exception of Mrs Beggs' assertion of the presence of a second female of African appearance, her account of an assault on a female of African appearance seems to me to be in many respects consistent with the account given by Ms Akol of the assault upon herself in the document of 26 February 2009 which she signed at the hospital.

16 As far as Mrs Beggs' cognitive difficulties are concerned, the position in that respect can and should be revealed to the jury if the evidence is admitted. That issue could then properly be the subject of submissions. In my view it is an issue which the jury can take into account and assess.

17 The matter raised by counsel for the accused concerning the new circumstance which has only emerged since the committal, namely that Mr Wach now maintains he did go to the blue car and that he got a stick out of the boot, is of potential significance. This is not a case like Darmody where the suggestion of new material arising since the committal can be easily dismissed.

18 The cross-examination at the committal was full and careful in relation to Mrs Beggs' own observations. She was asked about her location when she made the observations. She was asked about the clothing on the male person she saw assaulting the female. She was asked to give an exact description of what she saw being done. She was asked about the second woman of African appearance who she says she saw. She was asked about the man going to the car, and at that stage she emphasised her observation that that man had taken his shirt off (something also in her written statement), which would suggest that that man was Mr Anyang. Counsel for the accused ensured that she confirmed in clear terms that she only saw one male and that she definitely saw two females.

19 I am very doubtful that counsel for the accused could have taken the matter much further if he had known then that Mr Wach would subsequently maintain that he had gone to the boot of the car at one point and taken a stick out. Mrs Beggs does not know who Mr Wach is or who the accused is. She could only give evidence of what she recollects seeing. What she recollected seeing was addressed fully at the committal.

20 Counsel for the accused suggested that he could have put to her that she might be mistaken when she says that it was the man who had taken his t-shirt off who was the person beating the woman on the ground, and that she might concede that possible mistake if it were put to her that Mr Wach (who never took his shirt off) now says that at one point he went to the boot of the car and took a stick out. The problem with that suggestion is that Mr Wach's evidence on that point, and the other evidence about Mr Anyang taking his shirt off, would need to be accurately summarised and put to the witness. If that were done the possibilities are so numerous, including the possibility that each of them at one point went to the car, that it seems to me that Mrs Beggs would be very unlikely to make any useful contribution and, indeed, that any contribution she could make would almost certainly be an opinion or a reconstruction.

21 Counsel for the accused can make submissions to the jury about what Mrs Beggs' evidence as to what she saw might mean. In substance, it seems to me that what was being put as unfairness was the lost opportunity to confront Mrs Beggs with that submission and to see whether she might agree with it, or disagree with it, or be unable to comment.

22 Mrs Beggs' statement and committal evidence has probative value. It is an eye witness account. It is, on one view, consistent with the relevant aspect of the account given in the document Ms Akol signed on 26 February 2009.

23 On the issue of probative value, were it not for what seems to be the settled position in New South Wales at appellate level, which has been followed in Victoria in at least one instance, I would have adopted the approach of McHugh J in Papakosmas v The Queen,[3] where he observed that s 137 necessarily involves considerations of reliability. It seems to me that this approach is necessitated by the terms of s 55, and in particular the presence of the words "if it were accepted"; and by the definition of "probative value" in the Dictionary, and in particular the reference to "extent" and the absence of "if it were accepted".[4]

24 In this case, it does not matter whether the "narrow" New South Wales approach is adopted or not. Adoption of the New South Wales approach strengthens the prosecution argument that s 137 does not operate to exclude the evidence, but even adopting a broader approach, where issues of reliability and credibility may be appropriately taken into account (being mindful at all times of the principal role of the jury in fact finding), my conclusion was that the evidence should not be excluded.

25 The evidence has probative value and, whilst the suggested unfairness cannot be dismissed as mere assertion, as it was in Darmody, upon analysis the unfairness does not outweigh that probative value. This is because the evidence of her observations has been fully canvassed and explored in cross-examination at the committal. What is new gives rise, in substance, to a submission about how those observations are to be interpreted. Any unfairness constituted by the lost opportunity to put what is, in substance, a submission to Mrs Beggs does not outweigh the probative value of her eye witness account.

[1] [2010] VSCA 41 ("Darmody").

[2] [2010] VSC 114 at [38] ("McRae").

[3] [1999] HCA 37; (1999) 196 CLR 297 at [81] and [86].

[4] A comprehensive analysis and criticism of the New South Wales approach is set out in Smith & Odgers: "Determining 'probative value' for the purposes of section 137 in the uniform evidence law" (2010) 34 Crim LJ 292.