CRIMINAL LAW - Appeal - Interlocutory Appeal - Admissibility of hearsay evidence -Certification by trial judge pursuant to s 295(3) of the Criminal Procedure Act 2009 - Whether principles in House v The King apply - Evidence Act 2008 ss 136, 137.

3 The applicant, Rajveer Singh, seeks leave to appeal against an interlocutory decision of Judge Rizkalla made in the County Court on 15 June 2011. The judge ruled that representations made by the complainant to police officers and to her son on the morning after an alleged rape were admissible as evidence of previous representations made by the complainant shortly after the alleged incident. After the ruling, counsel for the defence made a request for certification under s 295(3) of the Criminal Procedure Act 2009 (Vic) that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The judge found that the evidence, if ruled inadmissible, would substantially weaken the prosecution case and certified accordingly.

4 The applicant contends that her Honour's ruling of 15 June 2011 did not accord with a proper interpretation of s 66 of the Evidence Act 2008 (Vic) ('the Act') and was contrary to High Court authority in Papakosmas v R.

5 Further, the applicant contends that her Honour ought to have exercised her discretion under s 135 of the Act to refuse to admit the evidence on the basis that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused. Alternatively, the applicant relied on s 137 of the Act, which requires the Court to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.

Circumstances in which the allegations are made

6 The accused is a taxi driver charged with sexually penetrating the

complainant without her consent in a taxi on the morning of 21 November 2009. At the time of the alleged offence the complainant was extremely intoxicated.

7 The trial is to proceed on the basis that there was an act of sexual penetration between the accused and the complainant, the issue being whether or not the complainant gave her consent to that act. The prosecution case is that the complainant was so intoxicated as to be incapable of consenting. The defence asserts that the complainant consented to the act of sexual penetration in the accused's taxi, accepting that the complainant was affected by alcohol, but not to the extent that she was incapable of consenting. She states that she has no memory of the alleged incident nor any memory of what she said to witnesses who would give evidence of the previous representations that they say were made to them later that morning.

The Evidence Act 2008 (Vic)

8 Part 3.2 of the Act deals with the subject of hearsay. The hearsay rule is set out in s 59, which provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

9 There are a number of exceptions to this exclusionary rule. Relevant for present purposes is the exception in s 66 of the Act, which provides:

Exception - criminal proceedings if maker available

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by -

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made -

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including -

(a) the nature of the event concerned; and

(b) the age and health of the person; and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

...

10 Counsel for the applicant submitted that the condition in s 66(1), that the person be 'available to give evidence about an asserted fact' is not satisfied in this case as the complainant cannot remember making the relevant representations. Accordingly, the exception to the hearsay rule created by s 66 of the Act does not apply.

11 Further, counsel for the applicant cited Papakosmas as authority for the proposition that the complainant must be available to give evidence about the asserted fact, that the 'asserted fact' in this case is what happened in the taxi and that by reason of her loss of memory the complainant cannot give evidence about that fact.

12 Counsel for the Crown referred to the definition in clause 4 of Part 2 of the Dictionary in the Act which provides:

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if-

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability-judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(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; or

(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

(2) In all other cases the person is taken to be available to give evidence about the fact.

13 Counsel for the Crown submitted that as none of the sub-categories set out in clause 4(1)(a)-(g) apply to the circumstances of this case, clause 4(2) is therefore engaged and the complainant is taken to be available to give evidence about the relevant fact. This, it was submitted, provides a complete answer to the applicant's submissions.

14 In Papakosmas, the condition that the complainant be available to give evidence about an asserted fact was fulfilled as the complainant herself gave evidence that she did not consent to an act of sexual penetration. In the circumstances of that case, it was not necessary for the Court to focus on the meaning of the statutory expression 'is available to give evidence about an asserted fact', nor was it necessary for the Court to consider the operation of clause 4 of the Dictionary in the Act. In my opinion, the decision in Papakosmas cannot determine the answer to the question which arises for decision in this case.

15 I accept the submission of counsel for the Crown that clause 4(2) is a complete answer to the applicant's submission. Unless one of the categories of unavailability in clause 4(1) is established, a person is taken to be available to give evidence about the fact by operation of clause 4(2). The applicant did not fall within any of the categories of unavailability. I note that this point does not appear to have been argued below.

16 Counsel for the applicant further submitted that the occurrence of the 'asserted fact' cannot be fresh in the memory for the purposes of s 66(2) of the Act, if the person has no memory of the relevant fact.

17 Counsel for the Crown countered that the occurrence of the asserted fact was fresh in the memory of the complainant because the representations were made within hours of the alleged incident. The issue in this case is that the complainant later did not remember having made the representations.

18 I accept the submission put on behalf of the Crown. The section does not require the person who made the representations to remember having done so. It merely requires that the asserted fact was fresh in the memory of the person when the representation was made. In this case, the representations were made on the same day as the alleged rape. In my opinion, there was no error in the primary judge's ruling that the asserted fact of sexual activity without consent would have been fresh in the mind of the complainant as required by the terms of s 66(2).

19 In my opinion, it was not erroneous for the judge to rule that the conditions of s 66(1) and s 66(2) were met, and that the representations are accordingly admissible as an exception to the hearsay rule.

20 Counsel for the applicant submitted that if the applicant's submissions in relation to s 66(1) and (2) of the Act were rejected, then the hearsay evidence should be excluded under Part 3.11 of the Act on the basis that its probative value is outweighed by the danger of unfair prejudice to the complainant. Part 3.11 relevantly includes ss 135-137 of the Act, which provide:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

137 Exclusion of prejudicial evidence in criminal proceedings

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.

21 It was not argued before this Court that the representations did not have significant probative value.[1] Instead, the argument focused principally on the danger of unfair prejudice.

22 In substance, counsel for the applicant submitted that the danger of unfair prejudice in this case arises because the complainant does not remember the incident in relation to which she made the statements, and that counsel would therefore be unable to adequately cross-examine either in relation to the alleged incident or in relation to the representations.

23 Counsel for the applicant relied on the observations of McHugh J in Papakosmas to the effect that the purpose of the conditions in s 66 of the Act is to ensure that the defendant [applicant] has an opportunity to cross-examine on the representations.[2]

24 In response to this submission, counsel for the Crown referred to a passage in the judgment of McHugh J in Papakosmas which specifically addressed the meaning to be given to 'unfair prejudice' in the context of sections 135, 136 and 137 of the Act. His Honour said:

Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out:

"The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way." (Footnote omitted)

In its Interim Report, the Australian Law Reform Commission explained:

"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."[3]

25 Counsel for the Crown submitted that in this case, there was no unfair prejudice and that the evidence would be able to be fully exposed to the jury for what it is, namely the representations of a woman who on any version of events was extremely intoxicated, who forgot making the representations the next day and who is unable to recall them now. According to the counsel for the Crown, it is not unfair that she is not able to be cross-examined about them because she has no memory. The Act does not contemplate that this circumstance makes her unavailable. Further, s 165 of the Act (which deals with warnings and information which can be given to the jury) provides safeguards regarding the use of such evidence. Taking these considerations into account, it was submitted by counsel for the Crown that it was not unfair to allow the evidence to go before a jury for consideration in its proper context.

26 For present purposes it is not necessary to engage in the debate about whether the court makes an evaluative judgment when making a decision under s 137 or exercises a discretion, as is the case when making a decision under s 136.[4] Despite the difference in the statutory language, I approach this matter on the footing that the principles in House v R apply to a review of her Honour's interlocutory ruling under s 136 and s 137.[5] In House v R, Dixon, Evatt and McTiernan JJ said:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

27 In this case, the primary judge stated that she did not find that any of the representations represented a danger of unfair prejudice or were misleading or confusing, given that at the end of the trial appropriate directions would be discussed and then given to the jury.[6] Further, her Honour considered that the representations made to police officers who were taking notes at the time would have greater reliability than might normally be the case because they allowed for detailed examination of what the complainant was asked and what the complainant said rather than having the witnesses relying solely on their memory.

28 In my opinion, the judge did not act on a wrong principle, nor did she allow extraneous or irrelevant matters to guide or affect her, or mistake any facts or fail to take into account some material consideration.

29 For completeness, I note that Ground 4 of the grounds of appeal states that the judge failed to give weight to the circumstances surrounding the making of the assertions, namely, that at the time of making the assertions, the complainant was extremely intoxicated, that the complainant had spent significant time prior to making the assertions discussing the purported events with her son and a friend and had no memory of doing so and that the complainant had no memory of making the assertions either to the police or any other witness.

30 There is no substance to this ground. It is evident that her Honour's consideration of the matter was premised on the fact that the complainant was extremely intoxicated at the time the representations were made; the judge noted that she had 'gone through the depositional materials and considered the matters raised by counsel on the evidence'.[7] After consideration of those materials and the matters raised by counsel, the judge concluded that the complainant had no memory of the events in the taxi, nor any memory of the representations sought to be led.

31 In her reasons, her Honour did not expressly refer to the fact that the complainant had spent time prior to making the alleged representations discussing the matter with her son and a friend, but I am not prepared to infer that her Honour therefore failed to give weight to that circumstance. Her Honour stated that at the end of the trial when all the evidence was in, appropriate directions would be given to the jury about the proper use of the evidence. The fact that her Honour referred generically to the need for appropriate directions to be given to the jury about the evidence does not indicate that her Honour failed to give weight to the fact that the complainant had spent significant time discussing the events with her son and a friend prior to making the representations.

32 I am not persuaded that the judge made any error in deciding not to exclude the evidence under s 136 or s 137. In my opinion, her Honour's reasons sufficiently disclose a path of reasoning to enable the applicant to know why her Honour decided not to exclude the evidence. As the Court in the A Team Diamond Case held, '[t]he requirement to give reasons does not demand that each and every matter considered by a court be explicitly referred to in that court's reasons.'[8]

33 In my opinion, there is no basis upon which this Court should interfere with the judge's ruling.

34 In a separate ruling on 16 June 2011, the judge certified under s 295(3)(a) of the Criminal Procedure Act 2009 that the evidence constituted by the representations, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. This certification enabled the applicant to seek leave to appeal to this Court. The Crown did not concede before this Court or in a court below the condition precedent to an applicant's right to seek leave to appeal under s 295(3)(a). Counsel for the Crown submitted that whilst the representations were an important part of the Crown case, they were not critical and if ruled inadmissible, would not substantially weaken the prosecution case. However, counsel for the Crown accepted that because the judge had certified under s 295(3)(a), the proper approach before this Court was to further consider the matter under s 297 of the Criminal Procedure Act 2009.

35 The fact that a judge has certified an interlocutory decision under s 295 of the Criminal Procedure Act 2009 does not require this Court to grant leave to appeal. The Court must be satisfied that it is in the interests of justice to do so and for that purpose must have regard to the matters set out in s 297.[9]

36 Section 297 of the Criminal Procedure Act 2009 provides:

When leave to appeal may be given

(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to -

(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and

(b) whether the determination of the appeal against the interlocutory decision may -

(i) render the trial unnecessary; or

(ii) substantially reduce the time required for the trial; or

(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or

(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c) any other matter that the court considers relevant.

(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

(3) If the Court of Appeal refuses leave to appeal under this section, the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal.

37 Counsel for the Crown submitted that in this case, the trial was short and should not be broken up by an interlocutory appeal. Reliance was placed on the decision of this Court in MA v R where the Court stated that where there is an error in a short trial which requires a conviction to be overturned, delays are unlikely to be of great magnitude and the waste of resources will be minimal.[10]

38 Further, counsel for the Crown submitted that there would be disruption of the trial process; that the determination of the appeal would not render the trial unnecessary, and would not and has not substantially reduced the time required to prepare for the trial; and that whilst the appeal may 'resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial' under

s 297 of the Criminal Procedure Act 2009, the determination of the judge was of an ordinary kind required to be made daily by trial judges. Counsel for the Crown also submitted that there were many issues yet to be determined in this trial which will be affected by how the evidence comes out at trial, whether further applications are made under s 136 of the Act and, at the end of the trial, directions will be given to the jury as to the use of the relevant evidence, with appropriate cautions.

39 On the interests of justice issue, counsel for the applicant in substance relied on the matters that he had previously relied upon, namely that the complainant's failure to remember meant that she cannot be adequately cross-examined about the asserted fact, that when the representations were made the complainant was in an extremely intoxicated state and that the representations may have been as a result of discussions that the complainant had with her son and her friend when she was in that intoxicated state.

40 I am not satisfied that it is in the interests of justice to grant leave to appeal.

41 In MA v R, Redlich JA made the following observations about interlocutory appeals from short trials:

The interlocutory appeal from a short trial involves the fragmentation of that trial. The commencement of the trial is postponed or the trial is interrupted. The trial judge may then have to commence other proceedings. There is no certainty that the trial can recommence immediately upon its return to the trial court, or that the trial judge would be the same ... The appeal to this Court must then be given priority over other pressing matters. It places a substantial burden on this Court. It requires the time and attention of a number of judges from this Court when it is already struggling to deal with the backlog of criminal appeals. Accordingly, while the fact that a trial will be short is not determinative, it will ordinarily be a very weighty consideration against the grant of leave to appeal from the interlocutory decision.[11]

42 In this case, the disruptive effect on the trial process is not as significant as it would have been had a jury been empanelled. Nevertheless, there will be some fragmentation as the commencement of the trial has been postponed. In the reasons for judgment given for certification of the interlocutory appeal, her Honour noted that the trial will be 'reasonably short ... somewhere in the vicinity of 8 to 10 days'.[12] I consider this is a weighty consideration against the grant of leave to appeal in this case.

43 Allowing this interlocutory appeal to proceed will not save significant resources or time. It will not render the trial unnecessary. Counsel for the Crown has informed the Court that the prosecution will proceed even if the appeal is successful. Further, her Honour's ruling was an evidentiary ruling which has not been demonstrated to be attended by error. Finally, in my opinion, any risk of unfair prejudice to the applicant in relation to the use of the evidence can be dealt with by appropriate judicial direction.

44 In the circumstances, leave to appeal should be refused.

[1] 'Probative value' of evidence is defined in the Dictionary in the Act as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.'

[2] [1999] HCA 37; (1999) 196 CLR 297, 323, [84].

[3] Ibid 325, [91]-[92] (footnotes omitted).

[4] See, for example, THD v R [2010] VSCA 115, 7-9, [27]-[31]; Sophear Em v The Queen [2007] HCA 46, 37-38, [198]-[200]; DAO v R [2011] NSWCCA 63, 41, [93]

[5] [1936] HCA 40; (1936) 55 CLR 499, 504-505. See also MA v R [2011] VSCA 13, 5, [13]; DPP v MD [2010] VSCA 233, [27]-[30]. In MA v R, it was held that whilst there remains some uncertainty as to whether a ruling under s 137 is to be regarded as a discretionary decision of the type discussed in House v R, the decision of DPP v MD (which deals with s 138 of the Act) gives strong support for the view that the principles in House v R apply to a review of a decision under s 137.

[6] Reasons for Ruling of Judge Rizkalla dated 15 June 2011, 48.

[7] Reasons for Ruling of Judge Rizkalla dated 15 June 2011, 46-47.

[8] A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208; (2009) 25 VR 189, 205, [56].

[9] MA v R [2011] VSCA 13, 3, [7].

[10] MA v R [2011] VSCA 13, 4, [9].

[11] Ibid, [10] (Redlich JA, with whom Weinberg and Bongiorno JJA agreed).

[12] Reasons for Ruling of Judge Rizkalla dated 16 June 2011, 6.