The Queen v Sullivan [2022] NTSC 73

Supreme Court of the NT|2022-09-01|Before: Grant CJ

Crown: Office of the Director of Public Prosecutions

The Queen v Sullivan [2022] NTSC 73

[1] The accused is charged by indictment with having sexual intercourse with the complainant without her consent and supplying a quantity of cannabis to the complainant. Those offences are alleged to have been committed on 15 September 2021. The complainant died on 14 December 2021, and is therefore not available to give evidence within the meaning of the Evidence (National Uniform Legislation) Act 2011 (). On 22 April 2022, the Crown filed notice of its intention to adduce hearsay evidence of previous representations made by the complainant pursuant to of the ENULA. The preliminary question for determination is whether those representations are admissible under that provision; and, if they are, whether the evidence must nevertheless be excluded under of the ENULA.

[2] The Crown case is that on the day in question the complainant had been drinking in the bar of the caravan park in which she was then residing. At about 5:45 pm on that day, the accused and his neighbour arrived at the bar to drink with a group of friends. The complainant subsequently joined the group on the accused's invitation.
[3] At or about 8 pm that evening, the accused invited the complainant to go to his home to consume more alcohol and cannabis. The complainant, the accused and his neighbour travelled to the accused's home in the neighbour's motor vehicle. They arrived at about 8:30 pm. Once there, they drank more alcohol and smoked cannabis. Shortly after that, the complainant fell asleep on the floor in an intoxicated state. At about 9 pm, the neighbour effectively carried the complainant to a swag located on the floor in another part of the building. The complainant lay down on that swag and again fell asleep.
[4] The neighbour left the premises and went to his home next door shortly after 10 pm that evening. At some time after that, the complainant woke up to find that the accused was lying behind her, that the drawstring of her pants was undone, that the accused's hand was inside her underwear, and that he was pushing his fingers in and out of her vagina. The complainant pulled the accused's hand out of her pants, but he continued holding her roughly and fondling her breasts underneath her bra. She told the accused to stop and let go of her, but he tightened his grip. The accused eventually fell asleep, at which time the complainant got up and left the premises. The CCTV footage taken from outside the premises recorded that the complainant left the premises at 11:30 pm.
[5] The complainant made 000 calls at 11:44 pm, 11:47 pm, 11:49 pm and 11:57 pm. In the last of those calls she identified where she was staying and where she was then standing, and sought help. When asked what had happened, she said that she did not want to talk about it or explain it on the phone, but that she needed help. Later in the call she said that she had been 'assaulted'.
[6] Police attended at the complainant's location on the street at approximately 12:30 am that morning. The interaction between police and the complainant was captured on body worn video. The complainant appears intoxicated, distressed and disorientated in that footage, and did not provide any information about what had happened to her. She was drinking from an open can of beer during that interaction. Attending police took the complainant back to her accommodation at the caravan park.
[7] The complainant made another 000 call from her place of residence at 12:22 pm the following day. She explained that she had tried to report an assault to police the previous night but was not comfortable doing so. She said she did not know what time the assault occurred, but that it took place at a mechanic's warehouse located somewhere in the suburb of Pinelands. She thought that one of the men lived in the warehouse and the other man who had been present lived in similar premises next door. She described drinking with the man in a larger group at the bar of the caravan park on the previous afternoon, and then travelling to the warehouse in a utility motor vehicle. She said that she had been sexually assaulted, and described waking up with the hands of one of the men 'in me and on me'.
[8] In response to that call, a female police officer attended on the complainant at her residence at 2:17 pm that afternoon. Although the complainant appeared initially reluctant to talk, she gave an account of the events of the previous evening. That account of the events is essentially as described in the last 000 call described above. In particular, the complainant repeated her account of waking up 'to the fingers inside me and on me'. She also gave a physical description of the two men. The complainant also disclosed that she had consumed two glasses of wine before speaking with the police officer, but that she was not affected by alcohol.
[9] Following her conversation with the female police officer, the complainant again contacted 000 at 2:48 pm that afternoon. As a result of that call, the female police officer had a further conversation with the complainant at about 3:06 pm that afternoon. During the course of the conversation the complainant identified which of the two men was the assailant, and some other details of the incident. The complainant also told the female police officer that she needed to get drunk, but was dissuaded from doing so by the officer.
[10] A number of other officers spoke with the complainant at or about 4 pm that afternoon. The conversation was captured on body worn video. The complainant provided an account of the events of the previous evening which was broadly consistent with the accounts she had previously given, including the detail that the assailant 'had his hands inside me, on me'. The complainant said further that the memory of the incident had come back to her immediately upon waking that morning.
[11] The complainant was seen by a registered nurse at the Sexual Assault Referral Centre at or about 6 pm that day. The nurse recorded a brief history from the complainant which was again largely consistent with the accounts she had given police.
[12] On 17 September 2021, the complainant made a recorded statement on affirmation. In the course of that statement the complainant gave an account which was consistent with the accounts previously given, and contained details about the two men who had been present at the premises in which the incident occurred which were subsequently able to be confirmed by police. In that statement the complainant also confirmed that she was intoxicated at the time, subject to the qualification that she had a high tolerance to alcohol and could consume large quantities without becoming 'drunk'.
[13] On 30 September 2021, the complainant prepared a handwritten statutory declaration which simply confirmed that a drawing of the layout of the premises had been prepared by her during the recorded statement on 17 September 2021. At that time, the complainant also told police that bruising seen on her body in the aftermath of the incident had been present before that time.

[14] Against that background, the previous representations which the Crown seeks to adduce as hearsay evidence may be summarised broadly as follows:

(a) The representations made in the course of the 000 calls between 11:44 and 11:57 pm on 15 September 2021, and the discussion with the attending police in the street shortly after that.

(b) The 000 calls made on 16 September 2021, and the representations made to police on the two occasions on that afternoon.

(c) The representations made to the registered nurse at the Sexual Assault Referral Centre at about 6 pm on 16 September 2021.

(d) The representations contained in the recorded statement made on 17 September 2021.

(e) The representations contained in the statutory declaration made on 30 September 2021, and made during the course of the conversation with police at the time.

[15] Those representations are set out with greater particularity in Table A of the Crown's notice of its intention to adduce hearsay evidence.

[16] The Crown relies on ss 65(2)(b) and (c) of the ENULA, which provide:

(2) 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:

(a) ...

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable;

[17] The complainant is inarguably unavailable to give evidence about the matters contained in the representations. The 000 operators, the attending police officers and the registered nurse heard the representations being made, and the last two categories of witnesses also saw the representations being made. Assuming that at least one the conditions in s 65(2) of the ENULA is satisfied, evidence of the representations may be adduced by those witnesses reading onto the record what was said[1]; or, in circumstances where the witness observed a declaration being produced, by tendering the declaration through that witness [2].
[18] As extracted above, ss 65(2)(b) of the ENULA provides an exception for representations made 'shortly after' the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication. Although the phrase 'shortly after' imports a degree of flexibility[3], the Federal Court has observed that it would be an unusual case in which a representation made five days after an event might be regarded as having been made 'soon after' it[4]. That is so even in circumstances where the events might be considered still 'fresh' in the memory of the person making the representations. That approach is consistent with the res gestae exception to the hearsay rule from which the statutory exception is derived, however the ambit of the phrase 'shortly after' cannot be arbitrarily confined by reference to the scope of the common law exception.
[19] I respectfully agree with and adopt the following analysis undertaken by Kelly J in R v Ryan concerning the operation of s 65(2)(b) of the ENULA:

(1) The section is not just a restatement of the res gestae principles. It was intended to significantly expand upon the range of statements that were admissible at common law as part of the res gestae. ([Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204] at [123] and [133]; [Harris v The Queen [2005] NSWCCA 432; (2005) 158 A Crim R 454] at [33]).

(2) A narrative of past events may be admissible under s 65(2)(b). (Conway at [133]).

(3) The emphasis in s 65(2)(b) is not on reliability as such, but on admitting evidence that is unlikely to have been fabricated. For that reason the section requires that the statements be made "when" the asserted fact occurred (rephrased in Williams as "during the occurrence of the asserted fact") or "shortly after" the asserted fact occurred (rephrased in Williams as "under the proximate pressure of the asserted fact"). ([Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490] at [48]).

(4) For that reason, the court should not over-emphasise such matters as whether the events in question were fresh in the memory of the person making the statement in determining whether a statement was made shortly after the event. (Williams at [48]) However it is proper to take into account whether the events are likely to have been fresh in the mind of the person when the statement was made, as the policy behind the provision is to exclude evidence of a recollection which may have faded in accuracy over time. (Conway at [123]-[135]; Harris at [33]-[40]; R v Mankotia (unreported, Supreme Court, NSW, Sperling J, No 70049 of 1997, 27 July 1998) quoted in Harris at [34]).

(5) "The predominant factor in the phrase 'shortly after' must be the actual time elapsed and whether that fits the ordinary usage of the term 'shortly after' in the circumstances of the case." (R v Mankotia quoted in Harris at [34]).

(6) The assessment of whether a statement was made "shortly after" the event in question may be influenced by the subject matter of the statement and by how long the memory of such an event is likely to be clear in the mind. (R v Mankotia; Harris at [34]).[5]

[20] There is nothing in the surrounding circumstances or in the representations themselves which would suggest that the representations were a fabrication. The initial representations were made very shortly after the complainant left the premises at a time when the memory of the events was likely to be clear in the witness's mind. The representations the following day were made upon the memory of the incident returning immediately to the complainant upon waking, and the recorded statement to police was made in consequence of that report and approximately 36 hours after the relevant incident. The representations made on each of those separate occasions are broadly consistent, and details in those representations are corroborated by observations subsequently made by police in the course of their investigations. Accordingly, I conclude that the representations were made 'shortly after' the event in the sense that they were made 'under the proximate pressure of the asserted fact', and in circumstances that make it unlikely that they are a fabrication.
[21] Although the same cannot be said about the statutory declaration which was made on 30 September 2021, that declaration was simply confirmatory of a particular part of the account given to police in the more immediate aftermath of the incident.[6] As such, it also falls within the exception in s 65(2)(b) of the ENULA, because it was made confirming the detail of an initial representations made to police in the immediate aftermath of the incident.
[22] That conclusion makes it unnecessary to determine whether the representations are also admissible pursuant to s 65(2)(c) of the ENULA. I would only observe that the relevant question under that provision is whether the representations were made in circumstances making it 'highly probable' they are reliable. As the extract from Ryan above notes, the focus in that inquiry is on reliability rather than the unlikelihood of fabrication having regard to the surrounding circumstances. They are quite different considerations, and the test in s 65(2)(b) is less stringent than that in s 65(2)(c).[7] However, there are circumstances presenting in this case which are properly taken into account in both those assessments. As I have already found, the representations were made in temporal proximity to the incident in question and the complainant manifested distress consistent with her complaint. There is objective evidence which corroborates the complainant's account, including the CCTV footage identifying when she arrived at and left the premises, and the layout and content of those parts of the premises described by the complainant. Finally in this respect, the complainant's account is materially consistent throughout its iterations.

[23] I turn then to consider the defence submission that the probative value of this evidence is outweighed by the danger of unfair prejudice to the accused, and must therefore be excluded by operation of s 137 of the ENULA. A number of matters may be accepted at the outset.
[24] First, there is no doubt that the representations have very substantial probative value in the sense that they could significantly and rationally affect the assessment of the probability of the existence of facts essential to proof of both the charge of sexual intercourse without consent and the charge of supplying a dangerous drug. Moreover, for the reasons already given, it cannot be accepted that the probative value of the evidence is properly assessed as slight because the circumstances are such that its reliability is fatally undermined or it is plainly a fabrication.
[25] Second, as the Crown concedes, '[i]t is no light thing to admit a hearsay statement inculpating an accused'.[8] That is particularly so where the statement is one made by the complainant going directly to the elements of the offence(s) in question, because the accused is deprived of the forensic advantage of being able to cross-examine the complainant.
[26] Third, the representations the subject of the Crown's notice would not have been excluded by the operation of s 66(3) of the ENULA if the complainant was available to give evidence. These representations qualify as complaint evidence rather than representations made for the purpose of indicating the evidence that the person who made it would be able to give in legal proceedings. That is so even though the ordinary practice in the Northern Territory is not to call evidence of every representation made by the complainant to police in the course of the reporting and investigation of an alleged offence; and even allowing for the fact that, had the complainant been available to give evidence, the representations contained in the recorded statement with police would probably have formed her evidence in chief pursuant to the relevant provisions of the Evidence Act 1939 (NT).
[27] Those matters being so, the question is whether there is a danger that the jury may use the evidence in some manner that goes beyond the probative value it may properly be given.[9] That species of misuse extends to include the possibility that the evidence may be given more weight in the jury's assessment than is warranted.[10] However, the fact that the accused is unable to cross-examine the complainant is not decisive in balancing probative value against unfair prejudice.[11] That will depend upon the character of the evidence involved, and any assertion of unfair prejudice will be somewhat speculative in the absence of some reasonable basis on which to contend or suppose that the complainant would have withdrawn her complaint or otherwise contradicted herself.
[28] In Priday v R[12], the New South Wales Court of Criminal Appeal was considering circumstances in which the appellant was found guilty of sexual intercourse without consent following a trial by jury. The complainant was unable to give evidence because she had died prior to trial, but statements she made to a doctor and a police officer on the evening of the day on which the offence was alleged to have taken place were admitted as hearsay evidence pursuant to s 65(2)(b) of the ENULA. The trial judge had concluded that although there was prejudice to the appellant in not being able to cross-examine the complainant, he was satisfied 'that the probative value of the previous representations of the complainant [was] not outweighed by the danger of unfair prejudice to the accused'. The admission of those representations was pressed as a ground of appeal against conviction. The Court of Criminal Appeal ruled that the evidence was properly admitted and that the accused's inability to test the complainant's evidence in cross-examination did not give rise to such a danger of unfair prejudice as to outweigh the probative value of the evidence.
[29] In the subsequent case of Prasad v R[13], the New South Wales Court of Criminal Appeal was considering circumstances in which the appellant was found guilty of five counts of sexual intercourse without consent. Again, the complainant was unable to give evidence because she had died prior to trial, but statements she made to police were admitted as hearsay evidence pursuant to s 65 of the ENULA. Again, the grounds of appeal included that the trial judge had erred in finding that the representations fell within the statutory exceptions, and further erred in not refusing to admit the statements due to unfair prejudice. On appeal, the unfair prejudice was said by the appellant to derive from defence counsel's inability to cross-examine the complainant and the danger that her evidence would be given greater weight than appropriate. In that respect, Macfarlan JA, with whom the other members of the Court agreed, stated:

It is an inevitable consequence of the application of s 65(2) that the accused will not be able to cross examine the person who has made the previous representations, a condition of the application of the section being that the representor is not available to give evidence. Where the representations relate to disputed facts, which will always be the case where it is necessary to resort to s 65, it is also inevitable that there will be topics on which cross examination could have occurred if the representor had been available.

As Gleeson CJ pointed out in Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [22], unfair prejudice does not arise from the "inculpatory consequences of [the] proper use" of evidence that is admitted. Thus, probative value is not itself prejudice. Unfair prejudice, his Honour said, "lies in the risk of improper use of the evidence" and may arise "because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given". To the same effect, the High Court said in The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24 at [48] that:

"Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence."

A difficulty for the appellant in the present case is that his trial was a judge-alone trial in relation to which it could be assumed, even more readily than in the case of a jury, that the judge would comply with appropriate directions as to the use of the evidence. As in other judge-alone trials, the judge was to give those directions to himself. Moreover the trial judge here would have been, as he indicated in his judgment on the voir dire that he was, conscious that the appellant would not be able to cross examine the complainant and to factor that into his decision making.

In my view the appellant has not shown that the prejudice he would suffer by being unable to cross examine the complainant was other than what could ordinarily be expected from the admission of important evidence under s 65. In particular, he has not shown that there was a danger of evidence properly admitted under s 65 being misused. As a result he has not, subject to the point with which I next deal, shown that the trial judge erred in declining to refuse under s 137 to admit the appellant's first interview.

[30] As Priday demonstrates, those observations and conclusions are not limited in their application to cases involving trial by judge alone on the basis that judges are familiar with the frailties of this type of evidence in a manner that juries are not. They are also not limited to circumstances in which the hearsay representations do not form the only direct evidence going to the elements of the offence(s).
[31] As Blokland J observed in R v Ashley[14], the discretionary exclusions cannot be applied in a manner to render s 65(2) of the ENULA effectively inoperative. The representations in question in this case are not of low probative value due to vagueness or generality, and in making an assessment of unfair prejudice it is not open to this court to engage in any assessment of the credibility or reliability of those representations.
[32] Of course, the jury will have the benefit of instructions from the trial judge in relation to the assessment of the hearsay representations. Those directions will no doubt extend to the weight properly given to the representations having regard to the accused's inability to test them by way of cross-examination; the need in an 'oath on oath' case to take particular care before reaching a state of satisfaction beyond a reasonable doubt of the truth and reliability of the evidence of the complainant on each element of the offence in question; and the need to take into account a witness's state of intoxication in assessing the reliability of his or her account. While it might reasonably be argued that a jury properly instructed concerning those matters should return verdicts of not guilty in these circumstances, that is ultimately a question for the jury rather than one properly determined in the context of this application.
[33] Having regard to those matters, I have concluded that any unfair prejudice to the accused can be ameliorated by appropriate directions to the jury such that it does not outweigh the probative value of the evidence. The assumption underlying the criminal trial system is that juries will follow directions given by the trial judge. While there may well be limits to that assumption, the issues under consideration in this application are not such as to implicate those limitations.

[34] The ruling on the matter for preliminary determination is that the representations particularised in Table A of the Crown's notice of its intention to adduce hearsay evidence are admissible pursuant to s 65(2)(b) of the ENULA.