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[2006] VSC 333
Supreme Court of Victoria
2006-05-29
KAYE J
Original judgment source is linked above.
CRIMINAL LAW - Evidence - Hearsay - Prior consistent statements - recognised exceptions - exercise of judge's discretion.
1 The two accused are charged with conspiring together and with Ian Ferguson to traffic heroin in an amount not less than the commercial quantity. The accused and Ferguson were, for varying parts of the period charged in the presentment, members of the Drug Squad of the Victorian Police Force. The charges arise from investigations into the Drug Squad by the Ceja Task Force, which is a part of the Ethical Standards Department of the Victoria Police.
2 The key witness in the trial has been Duy Le. In his evidence Duy Le alleged that each of the accused and Ferguson trafficked substantial quantities of heroin to him from about late 1999 until early 2002. Duy Le's then girlfriend, Loan Tran, has also given evidence. Both witnesses were initially interviewed by Ceja investigators in December 2002 and subsequently in mid-2003. The charges against the accused arose from the allegations made by Duy Le and Loan Tran in those interviews.
3 The next witnesses are Senior Sergeant Ross and Detective Sergeant O'Neill, the investigators attached to the Ceja Task Force, who interviewed Duy Le and Loan Tran in December 2002 and subsequently. The Crown wishes to lead evidence from Ross and O'Neill as to the matters canvassed by them in their interviews with Duy Le and Loan Tran in December 2002. Those matters are set out in a folder entitled "summaries of debriefs". The accused each oppose that course and have submitted that the Crown ought not be permitted to lead that evidence in the trial.
4 Initially the Crown wished to call quite extensive evidence as to the interviews with each of the two witnesses; however, the focus and ambit of the evidence which the Crown proposes to call has narrowed somewhat. Essentially, the Crown now wishes to rebut the allegation that before Loan Tran was interviewed by Ceja on 10 December 2002, she and Duy Le colluded as to what she would tell the police. The Crown wishes to lead evidence from Mr Ross and Mr O'Neill in a summary form as to the topics addressed by Loan Tran in her interview and in a summary form as to the topics addressed by Duy Le in his interviews in December 2002. By that process the Crown will seek to demonstrate, first, that what Loan Tran told the police was in much narrower compass than what Duy Le told the police; and, secondly, that there were inconsistencies and differences between their respective accounts of some incidents which were related by them to the police. It has been submitted that by comparing the two accounts then given by the witnesses to Ceja, it will be shown that Loan Tran and Duy Le did not collaborate as to what Loan Tran told Ceja and subsequently what she said in evidence in this trial.
5 Subject to two exceptions, Mr Tovey, Queen's Counsel, who appears with Mr Brown for the Crown, does not propose to lead evidence as to what the two witnesses said about particular topics in their interviews. He only proposes that Mr Ross and Mr O'Neill describe the topics addressed by each witness in his or her interview with Ceja. The exceptions relate to two incidents respectively referred to as the Shell Westgate meeting and the Mastercard transaction. Mr Tovey wishes to adduce evidence in summary form as to what both witnesses said to Ceja in respect to those incidents in order that he might prove differences or inconsistencies in their respective accounts.
6 In response, Mr Young, who appears for the accused man Stephen Cox, has submitted that in the exercise of my discretion I should reject the evidence on the grounds that the admission of it would be unfair to the accused. Ms Spowart, who appears as junior counsel to Mr Georgiou for the accused man Glenn Sadler, submitted that the evidence proposed to be adduced by the Crown is inadmissible because the Crown is seeking to prove previous consistent statements by each witness, notwithstanding that recent invention has not been alleged against either witness in cross-examination. Ms Spowart also submitted that if I did not accept that submission, I should reject the evidence in the exercise of my discretion.
7 It is common ground that in the course of cross-examination of Duy Le and Loan Tran it was clearly suggested by both accused that, before Loan Tran was interviewed by Ceja on 10 December 2002, Duy Le collaborated with Loan Tran in order to induce her to support him in what he had told the Ceja investigators in his interviews, the first of which took place on 6 December. It is clear that counsel for the accused suggested that the collusion between the two witnesses took place at least for one month before the arrest of Duy Le in Sydney in early 2002, if not earlier. It was also suggested that on 10 December 2002, and before Loan Tran was interviewed on that day, Duy Le spoke to Loan Tran alone in an interview room and again collaborated with her as to what she should tell the Ceja investigators.
8 The first question which arises concerns the admissibility at law of the evidence sought to be adduced by the Crown. Ms Spowart has submitted that the evidence essentially is hearsay evidence of a prior consistent statement by each witness. Such evidence is inadmissible unless it falls within a recognised exception to the rule precluding the admission of previous consistent statements of a witness. The main recognised exception to that rule is that of recent invention and no suggestion of recent invention has been made to either witness in cross-examination. Accordingly, she submitted that the evidence is inadmissible. She relied on the decision of the Court of Criminal Appeal of South Australia in R v Martin (No. 2).[1]
9 Mr Tovey has submitted that the evidence, which it is proposed to be adduced is not hearsay, because he does not intend to lead the evidence to prove the truth of the statements made by the witnesses to Ceja, but rather to prove no more than the topics which were addressed in the course of their interviews. He submitted that there was no hearsay content contained in evidence which simply states the topics which were the subject of the interviews. He submitted that if there is any hearsay element, then the evidence is not admitted for the purpose of proving the truth of what either witness said in their interviews.
10 I do not accept that there would be no hearsay content in the evidence sought to be adduced by the Crown. The evidence by the Ceja investigator that in the course of the interview the witness spoke about a particular topic is, in my view, a representation as to what the witness told the investigator, albeit in summary form. For example, evidence that Duy Le spoke to the investigators about the sale of alcohol by him to Ferguson is evidence of an out-of-court statement by the witness Duy Le that he sold alcohol to Ferguson. It is, in my view, impossible to perform the exercise proposed by the Crown without leading, even in a most limited way, evidence as to what the witness said out of court. Further, the exercise is intended to address topics spoken about by each witness out of court which were the subject of their testimony in court. In other words, the exercise is intended to prove that the topic of what the witness said in court was the subject of the interview between the witness and the Ceja investigator. Therefore, and to that extent, it is intended to adduce the evidence in order to prove consistency between the interview and the evidence given by the witness in court.
11 The question then arises whether, notwithstanding its hearsay content, the Crown may nonetheless adduce the evidence of the topics addressed by Duy Le and Loan Tran in their Ceja interviews in December 2002. The issue to which that evidence would be relevant is whether the testimony of Loan Tran in this trial was the product of collaboration between herself and Duy Le. That issue has arisen in the context of an allegation that, in the period leading up to her interview with Ceja on 10 December 2002, there had been collusion between Duy Le and Loan Tran as to what she was to say to the police. Thus the accused have each contended that what Loan Tran said in court was based on what she told the police in December 2002 and that what she then told the police was the product of collusion between Duy Le and herself. Viewed in this light, it might be argued that the defence have squarely raised the issue as to what Loan Tran told Ceja in December 2002 and as to whether that account was collusive with what Duy Le was then saying to Ceja.
12 That point does, I consider, have substantial force. However, it does not meet the question whether, nonetheless, it is permissible to adduce evidence as to what the witnesses each told Ceja investigators for the purpose of demonstrating that, by a comparison of their two accounts, they were not acting together in colluding to give the same version to the Ceja investigators. The point remains that essentially the Crown wishes to adduce evidence which unavoidably has a hearsay content. Further, the evidence would be irrelevant unless it linked with the evidence given by the witness in court. The proposal of the Crown is to prove that link by showing that the evidence of each witness in court was based on what they told the Ceja investigators. Thus, in essence, the Crown wishes to call evidence with a hearsay content as to what each witness said in order to show that, in a broad sense, the witnesses' accounts were similar to, and thus consistent with, that given in court.
13 In Nominal Defendant v Clements,[2] the High Court defined the circumstances in which evidence of a previous consistent statement by a witness might be adduced from that witness or from another witness. Dixon CJ stated the relevant principles as follows:[3]
"If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness, if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen, and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident, however, that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party, but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made, it rationally tends to answer that attack."
"The kind of imputation and allegation that -if sufficiently clearly made - will let in prior consistent statements are: First, that the witness's testimony is a recent fabrication in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated."
15 The application of those principles was considered by the Court of Criminal Appeal of South Australia in R v Martin (supra). In that case the court addressed the question whether there was any other exception to the rule against the admission of previous consistent statements than those stated by the High Court in Clements' case. In Martin's case the accused man was charged with the murder of his father. Mr F, a friend of the accused, gave evidence that the accused had confessed to her his guilt of the crime. She was cross-examined with a view to show that she bore hostility to the accused and that she had told the police about the confession because she was vindictive towards the accused. The Crown sought to rebut that suggestion by proving that before Mr F went to the police she had consulted three persons, told them about the confession and sought their advice whether she should tell the police about it. The Crown submitted that the evidence sought to be adduced was relevant to demonstrate Mr F's state of mind when she approached the police. The trial judge admitted that evidence and the accused man was convicted. The Court of Criminal Appeal of South Australia held that in admitting that evidence, the trial judge erred, and allowed the appeal.
16 Doyle CJ, with whom Lander and Bleby JJ agreed, held that the evidence of the three witnesses as to what Mr F told them did have significant probative force. It operated to counter the allegation that Mr F was motivated by malice in reporting the confession to the police. But His Honour held that the evidence was, nonetheless, not admissible because it did not fall within any of the recognised exceptions to the rule against the admission of previous consistent statements. His Honour referred to Clements' case and then said as follows:[5]
"The challenged evidence was evidence from which the jury could conclude that her behaviour was not that of a vindictive self-serving liar, but that of a woman behaving just as one might expect under the circumstances that she had described. From that in turn the jury might infer that the suggestion of fabrication was false. The challenged evidence tended to support her evidence that the suggested motives for her evidence were not operating on her mind. It was not, of course, unequivocal. In that way the evidence did have probative force. It was, in my opinion, material which could assist the jury in deciding whether to accept her testimony to them or to reject it. But, as I have already explained, probative force and relevance do not, of themselves, result in admissibility. While those considerations probably underlie or justify the exceptions to the general rule of exclusion discussed earlier, it does not appear to be the law that evidence of out-of-court statements and conduct by a witness is admissible whenever that evidence could assist a jury in deciding whether to reject an attack upon a witness's credibility. If there were some such general rule or exception, cases like Clements would be no more than instances of its application. It is one thing to say that Clements is not definitive of the exceptions to a general rule, but another thing altogether to say that it is but an instance of a general exception. That is not how it is expressed nor how it has been treated by later cases and by writings on the law of evidence."
17 Doyle CJ then considered the authorities at some length and concluded as follows at:[6]
"Having said all that, I now return to Nominal Defendant v. Clements to consider whether there is in any of the judgments a statement of principle which would support the approach of the trial judge. The case is so well known that I will not cite extensively from the judgments. I simply proceed on the premise that what the case itself decided was that a clear suggestion of invention of some material fact may be rebutted by evidence that the witness made an out-of-court statement to the same effect, provided that the time or circumstances of the making of the out-of-court statement logically tend to rebut the suggestion of invention made by the cross-examiner. Having reread the case, I can find no hint of a more general principle underlying the specific decision that would support the approach taken by the trial judge. If anything, the tenor of the judgments is to the contrary. They treat the principle applied in that case as a clear exception to a general principle and one to be applied with great care. I can find nothing in the judgments in Clements to suggest that the principle there stated is no more than an instance of a general exception to a common law rule against proof of things said and things done by a witness out of court relied upon to restore credibility in the face of an attack in cross-examination upon the credibility of the witness. I have therefore come to the conclusion that the evidence was inadmissible. It cannot be supported on the relatively narrow basis identified by Clements."
18 In R v Janson,[7] Doyle CJ reiterated and adhered to the views which he had expressed in Martin's case. In R v Lam,[8] Redlich J considered that Martin was a comprehensive statement of the applicable principles. In my view, the decision of the Court of Appeal of the Supreme Court of Victoria in G.J. Coles & Co Ltd v McDonald[9] reinforces the same strict and careful approach of the common law to the admissibility of previous statements of a witness.
19 I consider myself bound by the principles stated by Doyle CJ in Martin's case. With great respect, I consider that they should be followed. The rule against the admission of previous statements has a strong and rational foundation. Such evidence can divert the trial from the real issues and can, as stated by Doyle CJ, lead to detours into collateral issues. Further, such evidence can serve to bolster a witness's credibility in a manner which is unfair, illogical and improper. It is therefore understandable why the common law in its wisdom has long restricted the categories of circumstances in which previous statements of a witness may be admitted into evidence.
20 The exceptions referred to by Dixon CJ and Windeyer J in Clements' case each involve circumstances where, a fortiori, the evidence of a previous statement logically and cogently rebuts the attack on the witness. Thus a consistent statement by a witness before the alleged fabrication by the witness or before the alleged act of collusion necessarily disproves the fabrication or collusion. That logical link between the evidence of the previous statement and the rebuttal of the attack on the witness would seem to constitute the rationale of the exceptions to the rule identified in Clements' case.
21 In this case the Crown does not seek to adduce evidence as to what Duy Le or Loan Tran had said at a time before the collusion which has been alleged by the accused; rather, and by contrast, the Crown wishes to establish in summary form the topics each addressed when interviewed by the Ceja investigators after the period of collusion alleged by the accused. Such evidence, if admitted, might militate against the allegation of collusion between the witnesses; however, it does not necessarily or cogently disprove collusion. In my view, neither principle nor authority would permit the evidence to be admitted on the basis argued by the Crown. For those reasons, I accept the submission by Ms Spowart that the evidence is, at law, not admissible.
22 Having reached that conclusion, I can deal with the question of the discretion rather briefly. If, in fact, I were to have concluded that the evidence is admissible at law, I would nonetheless have rejected it in the exercise of my discretion. The evidence of Duy Le completed almost eight weeks ago and the evidence of Loan Tran completed about five-and-a-half weeks ago. There has been a substantial body of evidence led in the meantime. Both witnesses were vigorously cross-examined on their credit. The evidence now sought to be adduced by the Crown would be introduced in some detail at a point well detached from the cross-examination of the two witnesses. At the same time, in addition to fulfilling the purpose sought by the Crown, it would also perform the impermissible function of putting before the jury the circumstance that in December 2002 each witness had addressed topics in their interviews with the Ceja Task Force which are consistent with the topics respectively addressed by them in their evidence in this court. In my view, that course would occasion significant unfair prejudice to the accused.
23 On the other hand, and at least to some extent, the Crown can, in final address, make the point which it wishes to establish by the evidence which I have ruled inadmissible. No doubt Mr Tovey will be able to compare the two versions given respectively by Loan Tran and Duy Le when addressing the jury. Both Mr Young, at transcript p.3678, and Ms Spowart, at transcript pp.3685-6, have correctly accepted that in doing so, Mr Tovey would be entitled to point out that on the evidence both witnesses were interviewed by Ceja in December 2002. He would also be entitled to point out that both witnesses have been cross-examined as to when their testimony has departed from what they told the Ceja investigators. Thus my rejection of the evidence sought to be adduced by the Crown would not entirely preclude the Crown from seeking to make the same point in final address which it seeks to make by leading that evidence in court.
24 For those reasons and on the issues which are presently alive in the trial, I hold that the evidence sought to be adduced by the Crown is not admissible. Of course, Mr Ross and Mr O'Neill have not yet given their evidence. I should note, as I discussed with counsel in the course of argument, it is possible that the issue of the admissibility of that evidence might arise on some other basis depending on the cross-examination of those witnesses. However, on the issues which have presently arisen, I hold that the evidence is not admissible.
[2] [1960] HCA 39; (1960) 104 CLR 476.
[3] at pp.479 to 480.
[4] at p.494.
[5] at pp.433-4.
[6] p.441.
[7] (2001) 80 SASR 590 at 596-7 paras 30-31.
[8] (2005) VSC 287 at para.24.
[9] [1998] 2 VR 218 at 223-4.
R
Cox & Sadler
(1997) 68 SASR 419
(1960) 104 CLR 476
(2001) 80 SASR 590