JUDGMENT
1 MILES AJ: In the absence of the jury the prosecution sought a ruling on the admissibility of the contents of a statement of Vera Valjar (now deceased) made to police at Mount Druitt Police Station on 7 February 1985. The statement was typed on official police form P190 and witnessed by Senior Constable W T Mathers. The admissibility or otherwise is to be determined under s 65(2)(b) of the Evidence Act 1995 or alternatively s 65(2)(c).
2 The prosecution case was that the deceased and the accused travelled in the accused's car on the night of Thursday 24 January 1985 and that the accused himself or with somebody with whom he acted in concert shot the deceased dead at or near where the deceased's body was found about 1.5 kilometres east of the Hume Highway near Marulan. The body was not found until Thursday 31 January. The whereabouts of the accused and the deceased on the night of 24 - 25 January were of importance in the trial.
3 There was evidence in the trial at the time of the ruling that the deceased let the premises at 131 Carlisle Street Blackett to Ms Valjar during the period around 24 to 28 January 1995. In her statement Ms Valjar deposed to arrangements with the deceased and the removal of her belongings to the premises on 24 January. The statement continued.
"……7. "After Rade and I had moved my things, I gave Rade $120.00. I said to Rade, would he fix the door because I couldn't lock it. " He said, "Alright, but I must hurry up, because somebody wait for me, going tomorrow to Canberra." Rade stayed and fixed the door and stayed til (sic) about 8.30 pm, and then he left.
…….8 About 10 minutes later the woman from the front house tells me that there is a telephone call. I go in and speak on the telephone, and its Rade. He say, "Vera, I'm not going tomorrow, I'm going now straightaway, Canberra." I said, "Alright, you go." Rade say, "I come back Monday and fix your kitchen floor." Then we hung up."
4 The statement went on to describe attempts by Ms Valjar to locate the deceased from 29 January onwards. It included conversations with members of the deceased's family in connection with the deceased's undertaking to effect repairs to the premises, the repairs carried out by the son of the deceased and the receipt by Ms Valjar on Saturday 2 February 1985 of news of the death of the deceased.
5 The relevance of the expressions of intention on the part of the deceased in paragraphs 7 and 8 of the statement was that they might be regarded as supportive of the prosecution case that the deceased met his death while travelling in a car in the direction of Canberra on the night of 24 - 25 January 1985 in the company of the accused.
6 Section 65(2) of the Evidence Act provides:
"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 was:
…
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) made in circumstances that make it highly probable that the representation is reliable."
7 These provisions have been considered judicially by single judges of this Court, in particular Sperling J in Mankotia [1998] NSWSC 295, Levine J in Polkinghorne (1999) 108 ACrim R 189. The judgments and observations of both Sperling J and Levine J were approved by successive Full Courts of the Federal Court of Australian applying the identical provisions of the Evidence Act 1995 (Cth) in Conway (2000) 98 FCR 204 and Williams (2000) 119 ACrim R 490.
8 In Mankotia Sperling J said that phrase "shortly after" implied a normative judgment dependent on the circumstances of the case. The predominant factor is the actual time that has elapsed and whether that fits ordinary usage in the circumstances of the case. The judgment should be influenced by the policy behind the provision, that is to limit reception of evidence of recollection made inaccurate by lapse of time.
9 Levine J in Polkinghorne drew attention to English authority, the doctrine of res gestae and the requirement of spontaneity which his Honour acknowledged as now possibly obsolete.
10 In Conway the Federal Court said that the primary objective of s 65(2)(b) is to ensure that the matters conveyed in a narrative of a past event are still fresh in the mind of the person conveying the narrative. In Williams however the Federal Court went further and said that the rationale is based not only on ease of recollection but intention to allow evidence that is unlikely of fabrication on condition that the statement is made spontaneously during ("when") or under the proximate pressure of ("shortly after") the asserted fact. On the "proximate pressure" test the Federal Court suggested that it would seem to be an unusual case in which a representation made 5 days after the asserted fact might be said to have been made "soon after" (sic) it.
11 The Australian Law Reform Commission (ALRC 26) Vol 1, para 692 said of the proposed provision that it used a formula which took up the suggestions of the Privy Council in Ratten v The Queen [1972] AC 378 at 391 and directed attention to the question of the likelihood of fabrication. In Ratten the Privy Council stated that hearsay evidence may be admitted in conditions of proximity of involvement or pressure "as to exclude the possibility of concoction or distortion."
12 Perhaps, reconciling Conway and Manikotia and drawing on the Australian Law Reform Commission, it might be said that the legislative policy appears to be to facilitate the admission of a representation by an unavailable witness (subject to exclusion on the usual discretionary grounds) where the statement was made at a time so soon after the event that the lapse of time in itself is not likely to give rise to fabrication on the part of the maker. But the time factor is not enough: the circumstances also have to be such as to make fabrication unlikely.
13 The term "fabrication" should be significant. The avoidance of "concoction", the term used in Ratten, can hardly be accidental. Despite views to the contrary (eg Levine J in Polkinghorne) I think that fabrication may be taken to include reconstruction falling short of a false invention yet not entirely free of a process of piecing together discrete items of memory.
14 The evidence tendered is, in the terminology of the Evidence Act, the representation by an unavailable witness of an asserted relevant fact, namely that the deceased expressed to her his intention to proceed to Canberra on the evening of Thursday 24 January 1985. Contrary to what I suggested during the course of submissions on admissibility, what the deceased himself is alleged to have said is not a representation within s 65 but original evidence of relevant conduct: see eg Walton v The Queen (1989) 166 CLR 283. The intention of the deceased was relevant because the inference might be drawn from it (together with other evidence in the case) that he in fact acted in accordance with his intention. The representation by the unavailable witness of his expression of intention to her was evidence of conduct on the part of the deceased from which the state of mind of the deceased on the night of Thursday 24 January 1985 could be inferred and is admissible as an exception to the hearsay rule provided that it meets the requirement of s 65(2).
15 It is well recognised that the provisions of the Evidence Act are not to be interpreted by applying common rules and distinctions.
16 In my view the gloss that the Federal Court in Williams put on the words "shortly after", namely that they mean "under the proximate pressure of the occurrence of the asserted fact" is not to be found in the section itself, or in the decisions of the Federal Court in Conway or in the judgments of Sperling J and Levine J in this Court. It may derive from the Privy Council's terminology in Ratten. However, be that as it may, and bearing in mind that the judgment of Sperling J had the approval of all three of the other judgments, I think that the correct approach is to look at "the subject matter of the event" and "how long the memory of such an event is likely to have remained clear in the mind of the representor" or as the Federal Court put in Conway, whether the matters conveyed were "still fresh in the mind of the person recounting that narrative."
17 The conversations between the deceased and Ms Valjar on 24 January 1985 were in my view likely to have been fresh in the mind of Ms Valjar at the time of the making of her statement on 7 February 1985 because they occurred at the beginning of what was in the ordinary course of human affairs an unusual and memorable sequence of events. On 21 December 1984 she was divorced. On 23 January she was expelled by her former husband from the former matrimonial home. The next day, 24 January, she moved into premises owned by the deceased. At her request her new landlord the deceased went about fixing an unlockable door, saying that he had to hurry because he was going to Canberra the following day. Ten minutes after he left he rang to say that he was going to Canberra immediately and would be back on Monday to fix the kitchen floor. However when he did not turn she tried to contact him, unsuccessfully. On Wednesday 30 January the deceased's son effected the repairs for which she paid him and was told that he did not know where the deceased was. Later in the day she was told that he had disappeared. Those events whilst perhaps not extraordinary were at least unusual and likely to have been fresh in her mind when she was told on Saturday 2 February that her landlord was dead, apparently murdered. They were likely to have remained vividly in her memory when she made the statement to police on 7 February 1985.
18 I concluded that the representations contained in the statement of Ms Valjar were made shortly after the occurrence of the facts asserted in that representation within s 65(2)(b).
19 The second condition to be met under s 65(2)(b) is that the representation was made in circumstances that makes it unlikely that it is a fabrication. It is permissible to look at all circumstances relating to the making of the representation. Some of them have already been referred to. No evidence was called on this issue and the circumstances had to be spelled out from the statement itself and what evidence there was in the trial at the time of the ruling. There was no reason for Ms Valjar to fabricate in the sense of concocting a deliberately false account. There was a relatively short period of two weeks between the event and the representation during which nothing occurred to provide her with any incentive or cause to reconstruct inaccurately what the deceased told her. I concluded that it is unlikely that the representation was a fabrication.
20 I was therefore of the view that the statement made to the police on 7 February by Ms Valjar of what the deceased told her on 24 January 1985 was admissible under s 65(2)(b).
21 I need be brief only in my reasons for rejecting for the tender in so far as it relies on s 65(2)(c). That requires a much higher standard in which the circumstances need to make it highly probable that the representation is reliable. As I have said, there was no evidence about the circumstances of the making of the representation apart from what can be spelled out from the statement itself and the evidence as it was in the trial at the time of the ruling. No evidence was called from the police officer who witnessed the statement or any other police officer who participated in the taking of the statement. The statement itself was a curious mixture of police jargon and the language of a person whose first language may not be English. The words alleged to have been used by the deceased were given in English. The possibility that they were a translation from the Serbian is a real one and was not addressed. I did not conclude that the reliability of the representation was a matter of high probability.
22 It remained to decide whether the representation should be excluded from the jury's consideration on discretionary grounds. The potential probative value of the evidence was high. If the deceased said that he was leaving for Canberra on the night of Thursday 24 January 1985, the jury might regard that as powerful supportive evidence for other evidence from all which it might be inferred that he was in the company of the accused and heading in the direction of Canberra when he was shot dead later that night close to the highway that leads to Canberra. It is obviously true that the accused was deprived of the opportunity of testing to the representation of Ms Valjar by cross examination, but there was no suggestion that she could have been cross examined on an inconsistent statement, or that she had any motive to implicate the accused. In fact she did not even purport to implicate the accused directly in the death of the deceased. That is a matter that could only be reached by inference. In my view there was no unfair prejudice in allowing the representation into evidence, or to the extent that there was prejudice, it was substantially outweighed by the probative weight the jury might place upon it.
23 Those are the reasons for my ruling.