R v Bond

2 The conversation is expressed in different ways by Ms Ketteridge but its substance is as follows.

• Ms Membrey complained of being 'hassled' by a man.
• Ms Membrey said that man was Shane Bond.
• Ms Membrey said that Mr Bond wanted to go out with her and would not take no for an answer.
• Ms Membrey said that she had told Mr Bond that she already had a boyfriend, but that did not worry him.
• Ms Membrey asked Ms Ketteridge for advice as to what she should do about Shane Bond.
• Ms Ketteridge said to Ms Membrey that she should just tell him to 'fuck off'.

3 It is common ground that this evidence, if admitted, is relevant. It is evidence that, before Ms Membrey's disappearance, the accused had a romantic interest in her which was not reciprocated.

4 It is also common ground that the evidence sought to be adduced is primary hearsay and thus amenable to the operation of Part 3.2 of the Evidence Act 2008 (Vic) ("the Act"). The hearsay rule set out at s 59 of the Act prohibits the use of a previous representation to prove facts that the maker of the representation intended to assert by that representation ('the asserted fact'), subject to the various statutory exceptions contained within Division 1 of Part 3.2 of the Act.

5 The asserted fact sought to be proved by the prosecution is that Mr Bond 'hassled' Ms Membrey. In fact this involves proving a number of asserted facts from the previous representations, namely:

(c) that he persisted with his invitation in the face of this rejection; and

All of these asserted facts are interdependent components of the one conversation and in combination are said to be relevant to prove that Shane Bond was hassling Elisabeth Membrey.

6 It is undisputed that Ms Membrey is not available to give evidence about the asserted facts. The prosecution contend:

(a) that the previous representations were made when or shortly after the asserted facts occurred and in circumstances that make it unlikely that the representations (or any of them) are fabrications (s 65(2)(b) of the Act);

(b) that the previous representations were made in circumstances that make it highly probable that the representations are reliable (s 65(2)(c)); and

(c) that the previous representations were contemporaneous representations of Ms Membrey's feelings, intentions, knowledge and/or state of mind (s 66A),[2]

and thus the impugned conversation is admissible as coming within one or more of the above exceptions to the exclusionary rule.

Section 65(2)(b)

1"> 7 Section 65(2)(b) of the Act states:

(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;

This exception has its roots in the common law res gestae exception to the hearsay rule. The word 'when' requires a strict contemporaneity between act and representation. That is not present in this case. On any view Ms Membrey was recounting past conduct by Mr Bond and was seeking advice in the anticipation that that conduct would be repeated. If the impugned conversation is caught as an exception to the exclusionary rule under s 65(2)(b) it will be because the conversation occurred shortly after the asserted facts occurred and in circumstances that make it unlikely that the representation is a fabrication.

8 The phrase 'shortly after' is not defined in the Act. It has been considered frequently since the introduction of the Uniform Evidence Act and subtly different approaches have been taken. In R v Mankotia[3] Sperling J considered that a 'normative judgment' was to be made depending on the circumstances of the case, the predominant factor being the actual time that has elapsed between the asserted fact and the representation. This approach has been followed in Conway v R[4] where the Full Federal Court held that matters conveyed ought be "contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative."[5] In Williams v R[6] a differently constituted Full Federal Court cautioned against an overemphasis on the 'freshness' of the memory of the statement-maker and said that the rationale for the exception was also predicated upon the requirement that the evidence was unlikely to be a fabrication. The court applied a test that involved a requirement that the statement be made "spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact."[7]

9 In Williams v R a lapse of five days between the asserted fact and representation was held to be outside the ambit of s 65(2)(b):

Indeed, it would seem to be an unusual case in which a representation made five days after the occurrence of the asserted fact might be regarded as having been made "soon after" it.[8]

10 The previous representation by Ms Membrey to Ms Ketteridge occurred on 30 November 1994.[9] I am unable to conclude that this representation was made shortly after the occurrence of the asserted facts within the meaning of s 65(2)(b). It is clear enough from the conversation itself that Ms Membrey was asserting at least two and perhaps more rejected attempts by Mr Bond to invite her out. It is also clear that these conversations were sufficiently recent so as to occupy her mind and cause her to seek advice from Ms Ketteridge. Beyond that there is no evidence, either direct or indirect, that enables me to conclude with any precision in fact how recent these invitations were. The last invitation may have been hours before the impugned conversation, or it may have been days or (less likely) weeks before. Put another way the last invitation may have been shortly before that conversation, but I am unable to conclude, even on balance, that it was.

Section 65(2)(c)

1"> 11 Section 65(2)(c) imposes "a different and higher threshold of admissibility than that in s 65(2)(b)"[10] and is an exception to the hearsay rule based on the general reliability of the representation. Section 65(2)(c) is engaged if the representation

was made in circumstances that make it highly probable that the representation is reliable.

I consider that s 65(2)(c) imposes a significantly higher threshold of admissibility. The test has been described as "onerous" and the reason for this has been authoritatively stated to be "that s 65(2)(c) has the potential to operate unfairly against an accused person."[11]

12 I am entitled to have regard to all the circumstances revealed by the totality of the evidence in the case that bear upon the reliability of the representation.[12] This includes evidence of prior and later statements and the conduct of the maker of the statement. As the issue concerns the reliability of the representation made by Ms Membrey, matters concerning the reliability of Ms Ketteridge are not relevant to this consideration.

13 I find the following facts that bear upon the issue of reliability of the representation:

• Ms Membrey was an intelligent, diligent young person.
• She was working behind the bar at the Manhattan when the conversation occurred.
• Ms Ketteridge was a patron at the hotel at this time and was drinking soft drink. Both women were sober.
• The conversation was a private one between the two women.
• Ms Membrey appeared to Ms Ketteridge to be distracted.[13]
• There is no evidence that Ms Membrey had made similar statements to anyone else.

14 I consider the terms of the conversation itself provide the most cogent evidence of the reliability of the representations made by Ms Membrey. This was not simply a narrative account of historical events. As I have observed in another part of these reasons I consider that Ms Membrey was seeking counsel from Ms Ketteridge. She was seeking advice as to what to do about what she (Ms Membrey) perceived to be an ongoing problem. I cannot conceive of any motive for her to concoct this narrative or to embellish it. This was a serious conversation between two sober adults about an ongoing problem. Any concoction or embellishment would have undermined the advice sought and rendered the conversation pointless.

15 Mr O'Connell submitted that the notion of reliability encompassed more than deliberate concoction. It is legitimate, he submitted, to consider innocent reconstruction[14] and mistake. I accept this. Mr O'Connell submitted that the investigation has combed over Ms Membrey's daily life and other concerns that she held, for example about her health, her interaction with her boyfriend and her employment options, and that there was nothing in all that evidence which supported in any way the concern allegedly expressed by Ms Membrey about Mr Bond. I do not consider that this impacts to any significant degree on the reliability of the representations. Ms Ketteridge said that initially Ms Membrey was reluctant to confide in her and that she "pushed to find out what it was."[15]

16 Mr O'Connell further submitted that there was potential for error concerning Ms Membrey's recollection both as to the substance of what she was recounting to Ms Ketteridge and as to the identity of the man involved. I do not consider that there is any significant potential for error on Ms Membrey's part. The events that she was relating were simple - persistent invitations despite her endeavours to discourage them. The man involved was described by given name and surname, and was known to Ms Ketteridge as an old schoolmate, and she remarked upon that. The potential for mistake on the part of Ms Membrey can never be discounted entirely, but I consider it to be extremely unlikely given the nature of the conversation. There is also the potential that Ms Membrey may have been talking about a different Shane Bond. Again I consider this to be highly unlikely. The evidence discloses that Mr Bond in 1994 had been a regular drinker in the public bar at the Manhattan Hotel, as was Ms Ketteridge.[16] By that stage Ms Membrey had worked in the public bar area for approximately one year.[17] Whilst the test is onerous, absolute certainty is not required.[18] Any assessment that I make on this issue necessarily involves my subjective evaluation of the reliability of the representations and my equally subjective assessment of the meaning of the phrase "highly probable." For the reasons I have set out, and notwithstanding the onerous test I apply, I have concluded that the representations were made in circumstances that make it highly probable that they are reliable. It follows that I consider that the exception in s 65(2)(c) is made out.

Section 66A

1"> 17 In the event that I am in error in this assessment I shall consider the further exception to the hearsay rule that the Crown rely upon. Section 66A of the Act provides as follows:

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

18 Mr Horgan contends that the representations taken as a whole were contemporaneous representations about Ms Membrey's feelings, intentions, knowledge and state of mind. Mr O'Connell contends that the representations need to be considered separately and the only representation that might be considered as coming within s 66A is Ms Membrey's expressed intention to tell the accused to stop hassling her. He submitted that that intention can only be properly understood if the facts that gave rise to that intention are also stated and that s 66A should not be interpreted in such a way as to provide a gateway for the admission of related but otherwise inadmissible hearsay assertions. Such a broad construction would operate, he submitted, to circumvent the entire rule.

19 I do not accept that the only component of the various representations that can be said to fit within s 66A is the expression by Ms Membrey of her intention to tell the accused to stop hassling her. I consider that by recounting the past rejected invitations and by using expressions such as "he won't take no for an answer" Ms Membrey was expressing a contemporaneous representation that she did not welcome these advances. I consider this to be a contemporaneous representation of her feelings and state of mind.

20 In R v Serratore,[19] it was held that a deceased's expressed intention to her mother and friends that she intended to break off her relationship with the accused was a contemporaneous representation of her feelings, intention and/or state of mind and was "consequently admissible as an exception to the hearsay rule pursuant to s 72."[20]

21 I consider that the impugned conversation including all the representations within it are central to this expression of Ms Membrey's feelings, intention and/or state of mind. She provided to Ms Ketteridge the narrative of Mr Bond's past conduct in order to discuss how best she could carry out her intention to discourage future approaches. I have already ruled that I consider the exception to the hearsay rule in s 65(2)(c) has been made out. If I were called upon to rule on the issue I would hold that Ms Membrey's contemporaneous representation of her intention to tell the accused to stop hassling her comes within the s 66A exception and is admissible. I would also hold that the other representations made within the conversations are not only admissible to explain that contemporaneous representation of intention but, taken as a whole, they are themselves contemporaneous representations of her feelings and state of mind as it concerned Mr Bond's unwanted advances. Accordingly I consider evidence of the entire conversation comes within s 66A as an exception to the hearsay rule.

22 I have indicated to counsel that I will hear further argument based on s 137 of the Act before finally ruling on the admissibility of this evidence.

[1] R v Bond (Ruling Nos. 1, 2 & 3) [2011] VSC 535

[2] The Hearsay Notice did not particularise s 66A as an exception relied upon, however it was relied upon by the prosecution in oral argument and addressed by the defence in reply.

[3] [1998] NSWSC 295.

[4] [2000] FCA 461; (2000) 98 FCR 204.

[6] [2000] FCA 1868; (2000) 119 A Crim R 490.

[10] Jill Anderson, Neil Williams SC and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd ed, 2009) 232.

[11] Conway v R [2000] FCA 461; (2000) 98 FCR 204, [146].

[12] R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603.

[13] This is my word. Ms Ketteridge used phrases such as "a bit edgy" (Committal T472.6), "did not seem herself" (Voir dire T355-T356) and "she wasn't her normal bubbly self..." (Voir dire T355, T362).

[14] See R v Kuzmanovic [2005] NSWSC 771, [13].

[16] See statement of Jacobs; voir dire T354 - T355.

[18] In R v Morton [2008] NSWCCA 196, [20] - [37] per Barr J, McClellan CJ at CL and Price J agreeing, it was held that a trial judge who had interpreted the test in s 65(2)(c) to mean that the Crown bore an onus to show that there was "no risk" of either fabrication or unreliability was in error. The words of ss (2)(c) are plain. It must be made to appear highly probable that the representation is reliable.

[19] [1999] NSWCCA 377; (1999) 48 NSWLR 101.

[20] Ibid [29] per Dunford J, James J and Smart A-J agreeing. S 66A is identical to the then s 72 of the Evidence Act 1995 (NSW).