R v Rossi

2 The prosecution case is based upon an incident that occurred on 16 April 2009 when, after a dispute, the accused man threw diesel fuel over Mr D'Amore and ignited the fuel with a blowtorch. There is no issue in the trial that the accused caused the injuries to Mr D'Amore but rather whether or not he was acting in self-defence.

3 Several people saw what occurred and one of those was a proposed witness Sally Marie Pearce, a friend of Mr D'Amore. According to her police statement, on 16 April 2009, she had been visiting Mr D'Amore's house with her daughter, Tamara Burrell, who is also a prosecution witness. Others were also present. Ms Pearce observed Mr D'Amore becoming angry about some incidents that had occurred out in the driveway of his house and said that he went outside and then returned inside.

4 Later Ms Pearce witnessed the incident which was a confrontation between Mr D'Amore, the accused and the accused's accomplice, Kim Emery, who recently pleaded guilty to intentionally causing serious injury. Ms Pearce saw the accused man carrying a white plaster bucket in one hand and a blowtorch in the other. Ms Emery was yelling "I'm gonna fuckin' kill ya". Something was yelled back. From her car as she was leaving, Ms Pearce later saw the bucket (which contained diesel fuel) being tipped toward Mr D'Amore and then the blowtorch applied to him following which he "...[lit] up in flames from his chest up".

5 On 16 April 2009 after the incident had occurred, Ms Pearce made a statement to Senior Constable Dean Delle-Vergini detailing what she had seen.

6 On 9 and 10 December 2009, committal proceedings were conducted both in relation to the accused man and also Ms Emery and at that committal Ms Pearce gave evidence as a prosecution witness. In the course of that evidence, she said the contents of the statement she made on 16 April 2009 were true and correct and she was then cross-examined on behalf of the accused and his accomplice Kim Emery.

7 The matter was listed for trial in this Court in August 2010. A subpoena requiring the attendance of Ms Pearce for the trial was issued on 2 June 2010 but for reasons which I will deal with shortly, has never been served on her. Police have been unable to locate Ms Pearce and, again, for reasons I will come to, it is tolerably clear that she is avoiding service of the subpoena and avoiding giving evidence.

8 On 8 October 2010, the Director of Public Prosecutions filed a Notice of Hearsay Evidence which is in the following terms:

"Notice is hereby given pursuant to section 67 of the Evidence Act 2008 ("the Act") that the prosecution intends to adduce hearsay evidence, that is, evidence of a previous representation by a person to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by their representation.

2. The name of the person who made the previous representation and who is unavailable to testify ("the representor") is Sally Marie Pearce.

3. The factual basis on which the prosecution contends that the representor is unavailable to testify is as follows:

'Sally Pearce has not been able to be located by police.'"

The notice then refers to section 65(1), section 65(3)(a) and section 65(6) of the Evidence Act 2008 ('the Act'). The particular representations which are the subject of the notice are set out in a table form attached to the notice identifying them as the witness's statement and the transcript of evidence at the committal proceeding.

9 This proposed course of admitting this evidence in this form is opposed by Mr Edney of counsel on behalf of the accused man.

10 It is submitted by Mr D'Arcy that pursuant to s 65(1), Ms Pearce, the person who made the previous representation "...is not available to give evidence about an asserted fact." Whether that is so or not is a matter of substantial debate requiring this ruling.

11 Section 65(3) provides that:

The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the [defendant/accused] in the proceeding to which this section is being applied -

(a) cross-examine the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it."

12 Section 65(6) provides that that evidence may be adduced by the production of a transcript or a recording that is appropriately authenticated. There is no question raised about the requirements of s 65(3) or s 65(6). I am informed that there is a sound recording of the examination and cross-examination of Ms Pearce at the committal and that can be played.

13 In deciding whether Ms Pearce can be properly described as "not available", it is necessary to consider the Dictionary in the Act, particularly under Clause 4(1)(e) and (f):

"For the purpose of this Act, a person is taken not to be available to give evidence about a fact if -

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.."

14 These clauses are relied upon as having been complied with but the issue which has arisen concerns whether the prosecution have established that all reasonable steps have been taken to locate Ms Pearce and serve her with the subpoena for this trial.

15 In order to establish that Ms Pearce is "not available" in that sense, evidence was led by Mr D'Arcy from Detective Senior Constable Young and Detective Senior Constable Florence. Both these police are attached to the Darebin CIU and were involved in the investigation of these matters. In his evidence Detective Senior Constable Young described that the house of the witness is 50 metres away from where the incident occurred and that one of her two daughters is also a witness in this case.

16 Mr Young described taking a further statement from Ms Pearce at about the time that Ms Pearce gave evidence on 10 December 2009. In that statement she described two incidents which occurred in the days leading up to the committal proceedings. On each occasion late at night there was a knock on her window and she was threatened by a female with death or "being burned with a cocktail" if she gave evidence. Detective Young read the statement to the Court.

17 Mr Young went on to describe the fact that Ms Pearce did not attend the committal proceedings on the first day it was held, but did give evidence and was cross-examined on the second day. I understand that her presence on the second day was secured with the assistance of her daughter Tamara Burrell.

18 Mr Young gave evidence that upon the issue of the subpoena for Ms Pearce's attendance in this Court, the Reservoir Police initially attempted to serve that subpoena, although he was not sure on how many occasions they visited her premises. Ultimately it appeared that Ms Pearce had left her address and Mr Young gave evidence that he had attended at the address on numerous occasions since then and had not been able to speak to her. He said her premises, which were rented, had been empty for some period of time and were now occupied by other people.

19 Senior Detective Young said that in discussions with Ms Pearce's daughter it had become clear that Ms Pearce did not wish to come to Court and that she was suffering from fear and anxiety as a result of the threats. He has not been able to successfully locate her, particularly given that her daughter, who seems to know of her whereabouts and who was instrumental in getting her to attend the committal, is not willing to cooperate in relation to the matter. In addition Mr Young said there are no other avenues such as VicRoads or Centrelink that throw any light on her whereabouts. He gave evidence that he has checked the LEAP database which is linked to VicRoads' records. Ms Pearce's telephone has a message bank service and messages were left but the calls were never returned. He said in cross-examination that he has not spoken to her since the committal proceedings. In mid-September Senior Detective Young spoke to Ms Pearce's daughter who said she did not speak with her mother and did not know where she was. It was after that conversation that an urgent request was made to Centrelink to provide Ms Pearce's contact details.

20 Other than the contact between Senior Detective Young and Ms Burrell about a month or more ago no more recent efforts to locate Ms Pearce had been made. As of 11 October 2010, Centrelink had not yet responded to the requests for information submitted by police. Following a request from me that the Court's interest in this matter be made known, Centrelink provided the police with Ms Pearce's contact details: they were the same as those held by the police. On 12 October 2010, Vodafone Australia, the provider of Ms Pearce's mobile telephone service, provided the police with information that Ms Pearce's mobile telephone is still connected and that it was registered in her name and at the same address as that held by police.

21 On the whole of the evidence, it appears that Ms Pearce's house is an Office of Housing property: she is still named as the tenant of that property but she is not residing there. Mr Young gave evidence that he spoke to Ms Pearce's caseworker from the Office of Housing who informed him that she had spoken to Ms Pearce after late payment of rent. Ms Pearce apparently told the caseworker that she was concerned about giving evidence in this case and that as a result of the threats, she was anxious about her welfare. The caseworker is unaware of Ms Pearce's current whereabouts.

22 In the evidence of Senior Detective Florence, he agreed with the evidence of Senior Detective Young. He had also attempted to locate Ms Pearce and had attended at her address on some ten occasions without success. It appeared from his evidence that when the subpoena for this trial had sought be served, a police calling card was left in the door of the premises. Mr Florence saw that and then noticed on later occasions that it had been removed. The subpoena has never been served. It is clear on the evidence that Ms Pearce is no longer residing at her original address and has not been for some time.

23 Senior Detective Florence said that based on conversations he had with Ms Pearce she was well aware that she would be required to attend for the trial of this matter and she was reluctant about that. It would appear from Senior Detective Florence's evidence that Ms Pearce's daughter is in occasional contact with her mother and is reluctant to assist police in serving the subpoena on her.

24 In addition to that evidence, I was informed from the Bar table that on 11 October 2010, the solicitor instructing Mr D'Arcy spoke by phone to Tamara Burrell who told him that her mother has changed her phone number and that she does not know where her mother lives. Ms Burrell reiterated that he mother did not want to attend Court although she, Ms Burrell, was willing to do so.

25 Mr D'Arcy submitted that the relevant provisions of the Evidence Act had been complied with and that I should admit the witness's previous representations. He argued Ms Pearce was avoiding service of the subpoena and is frightened to come to Court. Mr D'Arcy asked rhetorically what further "reasonable steps" could be taken and suggested the answer was that there was nothing else to be done that would enable her to be found and compelled to give evidence in this trial. Mr D'Arcy also submitted that there were significant limits on what police could do to locate such a person without the ability to issue a warrant of some kind, which was not an option.

26 Mr Edney submitted there were other reasonable steps that could be taken to locate her and secure her attendance. They involved examining other phone companies to obtain further records for a second telephone and also to speak to Ms Pearce's other daughter Bridget. Mr Edney also suggested that Ms Pearce may be still living at her premises in Reservoir although I suspect the evidence compels a different conclusion. Mr Edney also suggested a check of the electoral roll.

27 A similar issue was considered by the New South Wales Court of Criminal Appeal in Puchalski v R.[1] In that case the issue at the trial of the appellant who was charged with maliciously shooting another person and other related charges was whether or not the appellant was the person who fired the shots. There was no witness who said they saw the appellant fire the shots.

28 The Court of Criminal Appeal was dealing with a ruling by the trial judge to admit the evidence on the basis that the witness was 'not available' as defined by the dictionary to the Act and that s 65(3) was invoked. A witness in the case who had given evidence at the committal proceedings had failed to appear and indeed it appeared had left the country a day or two before the trial was due to start. He had been served with the subpoena. Although the circumstances were different from those in this case both witnesses were obviously anxious to avoid giving evidence. As Smart AJ said in delivering a judgment with which McLellan CJ at CL and Hislop J agreed:

A witness served with a subpoena well in advance of the hearing date and who leaves for overseas on the day prior to the hearing without contacting the issuing party (or, in this case, the police) is avoiding giving evidence and there is little likelihood of that witness ever giving evidence. There was no precise evidence of him returning and no sufficient reason for the Crown to seek an adjournment.

29 In this case I infer that although the witness was not served with the subpoena, she well knew it was coming and determined to avoid the subpoena and its consequences.

30 In R v Darmody[2], the Court of Appeal considered the application of these provisions in circumstances where the witness was served with a subpoena, attended the Court, but refused to give evidence despite being warned of the consequences. The trial judge had concluded that the witness was not available to give evidence pursuant to clause 4(1)(f) of the Dictionary and Court upheld that conclusion. In the course of the judgment of the Court[3] their Honours said:

Clause 4(1)(f) of the Dictionary within the Act provides that, for the purposes of the Act, a person is taken not to be available to give evidence about a fact if:

All reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

In R v Suteski, the New South Wales Court of Criminal Appeal noted that it emerged from the Australian Law Reform Commission Reports that 'unavailability' was intended to cover the position of a witness who refuses to give evidence. On that basis, their Honours held that a witness was not available to give evidence within the meaning of clause 4 (1)(f) if the witness, having been subpoenaed, refused to give evidence after being warned of the consequence of refusing to testify.

The judge followed Suteski and so held that, because the Crown in this case had subpoenaed the complainant and called him, and he had refused to give evidence after being warned that he risked being dealt with for contempt, the complainant was not available to give evidence within the meaning of clause 4(f).

His Honour was right to follow Suteski. With respect, there is no reason to doubt the reasoning there applied and, in those circumstances, his Honour was bound to follow it.

31 In somewhat different circumstances, in my opinion Ms Pearce is also refusing to give evidence by avoiding the subpoena and thus avoiding any coercive process that would bring her before the Court and expose her to the sanctions that follow refusal to give evidence by answering questions.

32 The question is whether "all reasonable steps have been taken" to find the witness, secure her attendance or compel her attendance. If there are reasonable steps open that would have that effect then they all have to have been taken.

33 In this case, Ms Pearce had been a reluctant and frightened witness from the committal onwards having been threatened by a person presently unknown. The police have attempted to locate her to some extent and, more recently, have been without the assistance of Ms Pearce's daughter who apparently knows her mother's whereabouts and is willing to give evidence herself. It is highly likely Ms Pearce is now, and has been for some time, avoiding service of the subpoena for this trial.

34 Although no check has been made to see whether she has travelled out of Australia I am not persuaded that such information would be productive of anything useful. It is true that the police were well aware from the committal that she was a reluctant witness and there had been difficulties in getting her to give evidence at that stage although she had done so through the efforts of her daughter.

35 On the evidence, Ms Pearce was frightened of the consequences of giving evidence and it does not appear that she was reassured about that or that the matter of the threats against her was investigated. The subpoena for this trial was originally sent to the Reservoir police for service and there is no evidence about how many attempts were made to serve the subpoena or in what circumstances. Bearing in mind the situation, it might have been appropriate for either of Senior Detective Young or Senior Detective Florence to have maintained contact with her after the committal, reassuring her and perhaps even served the subpoena themselves. However, the fact is that on the evidence Ms Pearce knew that she would be required for the trial and once she saw the police calling card at her premises that Detective Senior Constable Florence said he saw and which had been later removed, it can be inferred she determined to conceal her whereabouts.

36 Ms Pearce is likely to be still in the jurisdiction of this Court and in occasional contact with her daughter but it now seems that that relationship is strained and Ms Burrell is not able to make representations to persuade Ms Pearce to attend the trial. Senior Detective Florence conceded initially that not all reasonable steps had been taken, he said:

Question: So essentially at this point there still are a number of steps which you could undertake to locate Ms Pearce; do you accept that?

Answer: Yes, I agree that there are a number of steps that can obviously provide information. Again, whether it locates her or not is another question. Obviously I can put those steps in place.[4]

Question: Have you made further enquiries within the Police Force as to what other steps you might take to secure the whereabouts of the witness to serve a subpoena on her?

Answer: I have liaised with one of my detective sergeants from my office just regarding any possibilities with warrants, et cetera, outside of obviously the warrant issued by the court here, and he's pretty much indicated he's not aware of any warrant that is available to us that will actually allow us access to details of the witness. So whether it be in relation to our search warrants, there is no warrant that he's aware of that will allow us to obtain any information.

38 On 13 October 2010 I heard further evidence from Senior Detective Young at the suggestion of the prosecutor Mr D'Arcy. Mr Young indicated that he had made enquiries about the witness Sally Pearce in connection with the electoral roll and the enquiries reveal that the entry on the electoral roll for her showed the same address in Reservoir that is well known to everybody.

39 Mr Young also gave evidence that he had contacted Ms Pearce's other daughter Bridget and had been told by her that Ms Pearce had previously been stable but so far as she was aware Ms Pearce went missing about two and a half months ago. Bridget told Mr Young that her mother was moving around and indicated that she, Bridget, was unaware of her whereabouts and was not able to contact her and that Ms Pearce was, as she understood, suffering a degree of anxiety about this case. To the extent that her mother had any second telephone number which could be used to make contact with her, according to Bridget, it had been disconnected.

40 Although I had some initial hesitation about admitting the previous representations this way given the desirability of eyewitness evidence being given in person before the jury, on all the information available to me I would be prepared to conclude that all reasonable steps have now been taken resulting in the witness being unavailable pursuant to clause 4(1)(e) and (f) of Part 2 of the Dictionary. Put another way, in my opinion there are no other reasonable steps that could be presently taken to find the witness and secure her attendance for this trial.

41 Apart from whether or not the witness was properly able to be described as "not available" there were other matters raised by Mr Edney as the basis for objection to the statement and committal evidence of Ms Pearce being admitted pursuant to s 65 of the Evidence Act.

42 The first of the submissions concerned the Charter of Human Rights and Responsibilities Act 2006 and in particular s 25(2)(g) which provides:

A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees -

(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law

43 Ultimately, the submission of Mr Edney was that although there is a qualification expressed to the particular "minimum guarantee", I should take this provision into account when interpreting statutory provisions. However in this case the activity I am engaged in is to determine, not what the Evidence Act means, but rather whether in the particular circumstances of this case, particular provisions should be applied. These provisions in the Evidence Act fall within the qualification of "...unless otherwise provided for by law".

44 The other submission made by Mr Edney was concerned with s 137 of the Evidence Act which provides:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

45 The first submission that Mr Edney commenced to make was that if s 65 of the Act is applied in the way sought by the prosecution, then there is an unfairness because the accused will be denied the opportunity of his counsel cross-examining Ms Pearce before the jury.

46 This question was considered in several of the cases.

47 The trial judge in Puchalski[5] also considered whether, pursuant to s 137 of the Evidence Act concerning the danger of unfair prejudice, the evidence should be excluded. Her Honour declined to do so. In the course of his judgment, Smart AJ noted that admissibility based on s 65(3) is not based upon the nature and extent of cross-examination. He went on:

It applies if BJ cross-examined [the witness] or had reasonable opportunity to cross-examine [the witness]. It would be an odd result to refuse to admit evidence adduced by the prosecutor under s 137, when that evidence was rendered admissible by s 65(3). The requisite directions would have to be and were given to the jury. There was no danger of the jury misusing [the witness's] evidence at the committal proceedings and no danger of unfair prejudice to BJ. This is not a case where the probative value of that evidence was outweighed by the danger of unfair prejudice to BJ (emphasis added).

48 In this State in DPP v BB; DPP v QN,[6] the Victorian Court of Appeal dealt with the matter by way of interlocutory appeal by the prosecution against a ruling by a judge in the County Court refusing to admit particular evidence in this category at the criminal trial of two accused. The trial judge ruled that s 65(3) enabled the complainant's evidence at the committal to be used at the trial but then applied s 137 of the Act ruling it inadmissible because the probative value was outweighed by the danger of unfair prejudice. The danger of unfair prejudice included what her Honour identified as "significant difficulties" in the way the cross-examination at the committal took place.

49 In upholding the appeal, the Court[7] concluded that none of the reasons given by the trial judge was capable of justifying the exclusion of the contentious hearsay evidence. Their Honours said in part:

"In enacting section 65(3) in the form it is, the legislature placed alternative primary conditions on its application. Those conditions require that the accused has either cross-examined the relevant witness in an earlier proceeding about the 'previous representation' of which hearsay evidence is sought to be adduced or he had a reasonable opportunity of doing so. The legislature clearly anticipated a situation where hearsay would be rendered admissible by section 65(3) even where there was, in fact, no cross-examination at a previous proceeding of the relevant witness."

The Court went on to note that the witness had been cross-examined.

50 Later[8] their Honours noted the difference between the now repealed s 55(AB) of the Evidence Act 1958 which required that there needed to have been a "full" opportunity of cross-examining the witness compared with the current regime where the word 'reasonable' is used and their Honours concluded that the legislature "intended the qualifying condition for admissibility to be now less onerous than it was before".

51 In the result, the appeal was allowed and an order made that the trial of the respondents proceed in accordance with the judgment and according to law.

52 In the submissions on behalf of the accused in this case Mr Edney did not raise issues of the kind that were raised in BB & QN. He did submit that the committal was a joint committal with the accused woman Kim Emery and that therefore there would be questions and answers going before the jury which had not been raised by the prosecutor or by counsel for his client but rather by counsel for a co-accused whose forensic interest may not have coincided with the interests of Mr Edney's client. However, as he properly conceded, upon a ruling that Ms Pearce's statement and committal evidence was admissible under s 65 of the Evidence Act there could be editing for the purpose of eliminating any potential unfairness of that nature.

53 I am not of the view that there is a risk of unfair prejudice in the circumstances before me. As the Court of Appeal said in BB & QN[9]:

Whilst the inability to cross-examine a witness at trial is a factor to be taken into account in determining whether the admission of evidence taken in an earlier proceeding will lead to unfair prejudice to an accused, it can never be determinative. Its weight on that issue in any particular case must take into account the legislative intent expressed in s 65(3) that the hearsay rule is not to apply to such evidence and the fact that the trial judge can always accompany its admission with appropriate directions to the jury.

54 Subject to the matter to which I have just referred I propose to permit the prosecution to put the previous representations of the witness Sally Marie Pearce before the jury pursuant to s 65 of the Evidence Act 2008.

[1] [2007] NSWCCA 220.

[2] [2010] VSCA 41

[3] Nettle and Ashley JJA and Habersberger AJA

[5] [2007] NSWCCA 220 at [95]

[6] [2010] VSCA 211.

[7] Per Bongiorno, Harper and Hansen JJA.