(2) Such a fact is in this Part referred to as an asserted fact ".
35 By reason of that definition, it is submitted, there is requirement that consideration should be given to whether the "asserted fact" occurred at all. How else can it be determined, it is argued, whether the representation was made "shortly after" the asserted fact occurred or how could it be determined "when" the representation was made without a determination of when and therefore, whether the asserted fact, indeed as a matter of fact, took place?
36 It is submitted that if the legislature had intended to focus upon the question of timing in relation to the asserted fact the relevant subparagraph would read as follows, "made when or shortly after the asserted fact is asserted to have occurred" (emphasis added).
37 I think there are two available responses to the propositions advanced in this context by Mr Molomby. First are the terms of s 59(1) which speaks of a previous representation not being admissible to prove the existence of a fact that the person intended to assert by the representation. That section, in my view, is concerned with the assertion as to a fact and the word "assertion" used in that exclusionary rule provision (to preclude the proof of the existence of the fact) must, to make any sense at all for the very existence of the rule, be a reference to what a person was saying that a fact was, as distinct from direct evidence of that fact.
38 The second basis is the sheer impracticality of the proposition advanced in terms of the other sections of the Act whether relating to exceptions in civil proceedings (ss 63 and 64), or indeed, to the restriction in subsection (2) as to "first hand hearsay". If a question arises in relation to s 65(2) as to whether a person had personal knowledge of the asserted fact, is it to be taken that the asserted fact would have to be independently proved to determine whether or not the person has personal knowledge of it or that that knowledge might reasonably be supposed to have been based on something that the person saw, heard or otherwise perceived (other than a previous representation made by another person about the fact)? In my view, it is not to be so taken.
39 In Mankotia Sperling J said (at 5-6):
"S65(2)(b) prescribes two conditions for its operation. First, the representation must have been made contemporaneously with the asserted fact (that is, the fact intended to be asserted by the representation: see s 59(1)) or shortly thereafter.
The phrase 'shortly after' is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but - as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase 'shortly after' must be the actual time that has elapsed and whether that fits the ordinary usage of the expression 'shortly after' in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.
The second condition prescribed by s 65(2)(b) is that the representation was made in circumstances that make it unlikely that the representation was a fabrication. The test is not one of reliability at large. It is a narrower test. First it is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial. Secondly, it is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances.
I would construe 'circumstances' to mean the circumstances in which the representation was made, its factual setting at the time it was made . That construction has the effect of excluding from consideration, for the purposes of s 65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s 65(2)(c) " (emphasis added).
40 I respectfully agree with what his Honour there said in respect of the essential submissions underpinning the defence position in relation to the operation of the two sub-paragraphs of s 65(2).
41 A further submission made by Mr Molomby in relation to s 65(2)(b) is as to the word "fabrication". To my understanding the word "fabrication" in ordinary English means something that is "made up". Technically it means, of course, something constructed or put together or simply made. What Mr Molomby has submitted, and it is again a very interesting submission, is that the sub-section does not take into account a "fabrication" that is "innocent".
42 In this regard Mr Molomby contends that there is some guidance in the Act that "fabrication" can include an innocent fabrication namely, s 108(3). If a "fabrication" is to be understood in s 65(2)(b) as inclusive of an innocent fabrication, then that creates what Mr Molomby describes as a "false construct of evidence" which I understand to mean the quality of evidence to which the intended purposes of s 65 could not conceivably relate to make it admissible.
43 Section 108(3) is concerned with an exception to the Credibility Rule (s 102) and with "re-establishing credibility". Section 108(3)(b) provides that the credibility rule does not apply to evidence of a prior consistent statement of a witness if "(b) it is or will be suggested, (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion" (emphasis added).
44 This is an ingenious, and I say that with respect, and a very interesting argument. Section 108(3)(b) it must however be borne in mind is concerned with the credibility rule. Section 65(2) is concerned with the admissibility of evidence to prove a fact. Section 108(3)(b) is triggered by evidence having been given and thus, of course, having been admitted and the testing of its credibility by that mechanism which I construe s 108(3)(b) solely to be directed.
45 Upon my reading of s 65(2)(b) "fabrication" has that ordinary meaning that founds such statements of principle as are set out in Ratten and Walton.
46 It was also submitted for the accused in the context of the proof of the asserted fact that the problem would not be so acute, if it exists at all, if there was independent evidence of it. That may be so. It is the second alternative namely, the requirement of a conduct of a voir dire which would involve the hearing of the whole of the Crown case which was reluctantly offered as the only basis on which to resolve the issues raised by Mr Molomby's propositions. Although I have rejected those propositions, the notion of conducting a "voir dire" has itself not been without mention. In Ratten at 391 Wilberforce LJ said as follows:
"Before applying it to the facts of the present case, there is one other matter to be considered, namely the nature of the proof required to establish the involvement of the speaker in the pressure of the drama, or the concatenation of events leading up to the crisis. On principle it would not appear right that that necessary association should be shown only by the statement itself, otherwise the statement would be lifting itself into the area of admissibility. There is little authority on this point. In Reg v Taylor [1961(3)] S.A.L.R. 616 where witnesses said they had heard scuffles and thuds during which the deceased cried out "John, please don't hit me any more, you will kill me," Fannin J said that it would be unrealistic to require the examination of the question (sc. of close relationship) without reference to the terms of the statement sought to be proved. 'Often the only evidence as to how near in time the making of the statement was to the act it relates to, and the actual relationship between the two, will be contained in the statement itself,' (p 619). Facts differ so greatly that it is difficult to imagine a case where there is no evidence at all of connection between the statement and principal event other than the statement itself, but whether this is sufficiently shown must be a matter for the trial judge. Their Lordships would be disposed to agree that, amongst other things, he make take the statement itself into account".
47 And in Mankotia at 6 Sperling J said:
"The argument has given rise to no serious difficulties in the present case. But what if it were seriously in dispute as to whether the accused killed the deceased? There would have to be a trial within a trial. And, in the present case, the same approach would entitle the Crown to prove that the killing was done with an intention to kill, and without provocation for that matter, all of which would be logically relevant to whether a prior representation that the accused had threatened to kill the deceased was unlikely to be a fabrication or was highly probable to be reliable. The Crown would be entitled to call virtually the whole of its case on the voir dire and the accused would be entitled not only to test it but to answer it by evidence on the voir dire. This cannot have been intended".
48 With respect I agree with what is both explicit and implicit in what Sperling J said as to the non-availability of such a course on the determination of an issue such as this.
49 Thus, I am not persuaded that s 65(2)(b) or (c) operates to exclude the proposed testimony from the deceased's mother of what her daughter said to her. Nothing that has been placed before me persuades me that when the statement was made it was likely that the representation was a fabrication (it being made shortly after the asserted fact occurred as I have understood the expression "asserted fact"), or that it is highly probable that the representation was unreliable.
50 If I determined that the evidence is admissible, it is urged upon me that in the exercise of my discretion I should exclude it on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused (s 137).
51 It is to be noted that s 137 speaks of "the danger of unfair prejudice". Unfair prejudice to the party against whom the evidence is tendered is not established by the mere fact that the evidence has only slight probative value: nor is it established because it may (quite properly) reduce the effect of that party's case. There must be shown to be a danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issue in the case: R v Lockyer (1997) 91 A Crim R 356; Pfennig v The Queen (1975) 182 CLR 461. The onus remains on the accused under s 137 to persuade the trial judge that the danger of unfair prejudice from the evidence outweighs its probative value. The section provides that the evidence must be excluded once the judge is persuaded of that fact: Regina v Lock (1997) 91 A Crim R 356 at 364 per Hunt CJ at CL.
52 The probative value of the evidence ruled to be admissible as an exception to the hearsay, Mr Molomby argues, is dramatically affected by the responses to the ambulance officers hitherto referred to, they having the quality of seriously undermining the effect of the original utterance. The realistic approach, it is said, is that there is someone in the house in the circumstances namely the victim who was on her face in bed covered up and is stabbed. There is only one other adult in that house normally, the accused. She is in a state of evident distress for obvious reasons and, it is said, "jumps to a conclusion" that the accused must have stabbed her, coming to that conclusion after some time in the house of her mother when being cared for. Her responses to the ambulance officer to the effect "I don't know", could represent very plausibly and conceivably the true position in the circumstances: namely, she had made no observation but had reached a conclusion. That view of the admissible testimony impacts upon its probative effect. Trite thought it is to say, of course, the actual witness is not available to be cross-examined particularly on what is said to be the critical aspect as to whether her utterance represents a statement of an observation she made or a conclusion at which she arrived. Save for the statement made to the mother there is no other "narration", which factor is also said to be suggestive of a conclusion rather than an observation. Other matters include, of course, the fact that there will be shown to be no other wound apart from the fatal one, the inference being available that the victim did not act defensively and therefore did not see that the stabbing was coming. The inference is also available that she awoke in panic and distress proffering confused thoughts. The very emotional circumstances attending what befell the deceased and the fact that statement was made to her mother could contribute to a statement in these circumstances being given greater weight than it deserves: that, I understand, to be a reference to the danger that the tribunal of fact will use the evidence on a basis logically unconnected with issues. The evidence ruled to be admissible is, of course, logically connected with the fundamental issue in the case, namely whether the Crown proves beyond reasonable doubt that the accused stabbed the deceased.
53 Other matters to which Mr Molomby referred was the apparent existence of evidence that a motor vehicle was observed by the witness Mrs Dunlop leaving the location at the time "all this fuss was taking place". That is, I am to be taken to understand, the time the victim was going to her mother's house. The accused does not drive a car. He has an impairment to his eye sight that makes him see in focus, as-it-were, things only about two inches in front of his face.
54 These matters, of course, may ultimately have some effect upon evidence which presently can be characterised as of probative value in the principle issue in the trial as well as being, by its very nature, prejudicial.
55 Of course the utterer of the statement is unavailable to be cross-examined. The recipient of it is. The recipient of the statements made to the ambulance officers are available to be cross-examined. The representation directly involves the accused and he, of course, can give sworn evidence in relation to it and to the matter as a whole. He is able to place his own version before the jury (cf. Regina v Brett John Dean (Dunford, J, unreported, 23 March 1997) at 3; Regina v George Daniel Morish (Hidden J, unreported, 4 October 1996) at 6).
56 Thus I am not persuaded to exercise my discretion under s 137, not being persuaded that, notwithstanding the prejudicial effect of the evidence admissible as an exception to the hearsay rule, that there is a danger of unfair prejudice. It is to be borne in mind also that the jury can and no doubt probably will receive appropriate directions.
57 There remains what I must confess to finding as curious a factual matter that arose during the course of submissions. This is constituted by the material in Exhibit 1 which is a statement dated 6 September 1997 by Dr Neil Blair of the Albury Base Hospital. It refers to what appears to be the fact that at about the time or shortly after the incident the accused was involved in a motor vehicle accident, that is, he was apparently, in the early hours of 26 July 1996, hit by a truck sustaining a close head injury.
58 I do not see the relevance of the material relating to these facts, if they be facts, to the question of the admissibility of the subject testimony. These facts might have other relevance in the trial generally but for present purposes I do not understand them to be pertinent.
59 Accordingly, I rule that evidence of the statement made by the deceased to her mother will be admitted.
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