Thomas (a pseudonym) v DPP [2021] VSCA 269

1 The applicant is charged with one count of murder and one count of possession of a drug of dependence. In relation to the charge of murder, the applicant is alleged to have struck the deceased, Mr W, with an intention to cause him 'really serious harm', at or about 12.40 pm on 2 June 2019. There were no eye witnesses to the alleged striking. However, Mr W gave an account of what occurred to his wife, Mrs W, almost immediately after the events in question. Mrs W called 000 to obtain assistance. Two police officers arrived at or about 1.05 pm, and Mr W gave an account of events to them. One of the police officers called an ambulance. At around 1.24 pm an ambulance arrived and Mr W gave an account of events to one of the two ambulance officers who attended. Mr W was then taken to hospital and gave an account of events to the doctor who examined him.

2 The respondent gave notice pursuant to s 67 of the Evidence Act 2008 that she intends to adduce hearsay evidence at the trial, namely evidence from Mrs W, the two police officers, the ambulance officer and the doctor, concerning statements made by Mr W to each of them ('the Notice'). The basis for adducing the hearsay evidence was that Mr W is unavailable to give evidence, and the respondent relied on s 65(2)(b) or alternatively s 65(2)(c) of the Evidence Act. The applicant opposed the calling of the hearsay evidence. He submitted that the evidence was not admissible under either s 65(2)(b) or s 65(2)(c), or alternatively that it should be excluded pursuant to s 137 of the Evidence Act. The trial judge held that the evidence is admissible under s 65(2)(b), alternatively that it is admissible under s 65(2)(c), and that it should not be excluded under s 137. He ruled that the representations in question will be admitted in evidence.

3 The applicant sought to have the trial judge certify that ruling pursuant to s 295(3) of the Criminal Procedure Act 2009 (the 'CPA'). On 5 July 2021 an order was made refusing certification. The applicant now seeks, pursuant to s 296, a review of that refusal.

4 For the reasons that follow, we have concluded that the trial judge erred in refusing to certify, but that, having considered the matters in s 297 of the CPA, leave to appeal should be refused. The trial judge was correct to admit the evidence pursuant to s 65(2)(b) of the Evidence Act, and correct not to exclude the evidence pursuant to s 137 of that Act. We have not found it necessary to express any conclusion on whether the evidence might also have been admissible under s 65(2)(c).

5 As noted above, the trial judge refused to certify the matter pursuant to s 295(3) of the CPA. That section relevantly provides as follows:

(3) A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies -

(a) if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and

(b) if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and

(c) if the interlocutory decision is made after the trial commences, either -

(i) that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial; or

(ii) that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal.

6 The trial judge accepted that s 295(3)(a) was satisfied - that is, that exclusion of the hearsay evidence would 'eliminate or substantially weaken the prosecution case'. However, the trial judge refused to certify on the basis that his decision to admit the evidence was not attended by sufficient doubt. While that approach to the exercise of the power to certify in s 295 was consistent with the authorities as they stood at the time the trial judge made his decision,[2] this Court has since held that, in a case to which s 295(3)(a) applies:

[T]here is no further step to be taken once a judge is satisfied - as her Honour was - that the evidence the subject of the interlocutory decision meets the 'eliminate or substantially weaken' requirement in s 295(3)(a). The statute neither permits nor requires any separate consideration of whether the decision is 'attended with sufficient doubt'.[3]

7 Given that, the trial judge was wrong to refuse to certify the decision pursuant to s 295(3).

8 Pursuant to s 296(4) of the CPA, on a review of a refusal to certify this Court is required to consider the matters in s 295(3) and, if satisfied as required by s 297, may grant the applicant leave to appeal. Given that there was no dispute that s 295(3)(a) was satisfied in this case, it is thus necessary to consider whether we are satisfied as required by s 297. That section relevantly provides as follows:

(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.

9 We note at the outset that, on an interlocutory appeal, House v The King[4] principles apply to admissibility decisions of this kind.[5] Thus the question is whether the trial judge has approached admissibility by reference to correct principles and whether it was open to him or her to draw the evaluative conclusion that was drawn.[6]

10 In our opinion, it is not in the interests of justice to grant leave to appeal because the trial judge applied correct principles and his decision to admit the evidence was open to him. We explain our reasons in greater detail below.

11 The alleged offending was summarised by the trial judge in his ruling as follows:

On 2 June 2019, Mr W and his wife Mrs W, were at [their] home ... . At about 12.40 pm Mrs W, who was in the backroom of her house heard her husband say 'No this is not your house'. She heard her husband yell something out and went to the front door. When she went to the front door she saw her husband and a person alleged to be the accused ('the man') at the bottom of the steps going down from the front door.

Her husband was bleeding from the top of his head. He was near the bottom of the steps and the man was near the caravan parked in the front yard. She asked her husband if the man had hit him and he replied that he had. Although Mrs W did not see any blows being struck she observed the man 'dancing around with his fists up'. She provided a detailed description of the man and his clothing. Mrs W then called 000. I was asked by [counsel] for the accused, to listen to the recording of the call and I have done so. When she was on the phone, Mrs W saw the man come towards her husband and told him to come inside. Her husband came about half way up the steps and the man sat on the steps and asked Mr W for a cigarette. During the call, Mr W can be heard to say 'his name is [Ken]'. At about that time Mr W also said 'we are getting you help' and the man responded 'Police, I am not sticking around'. He then went into the caravan and recovered a jacket which he put on. Mrs W heard some discussion between her husband and the man about directions. It is part of the prosecution case that the man is observed in CCTV footage in the vicinity and the accused later identified himself on that footage.

Mr W told his wife what happened.

Police arrived at the house at 1.05 pm after the man had left. Mr W told the police what happened and pointed out to them some items said to have been left by the man, in particular a pair of Nike runners. The man had left wearing only socks on his feet.

Ambulance officers attended at 1.24 pm. They took a history from Mr W and observed a laceration on his forehead, a bruised lip with dry blood on his hands and face. Mr W was taken to the Angliss Hospital. He did not show any acute neurological symptoms or traumatic injury or head fracture at the scene. He complained of headache to the ambulance officers.

At Angliss Hospital, Mr W was examined by Dr Shalina Navaratnam, who took a history. She made the following observations of injuries:

A 1.5cm linear laceration was evident to the left of his forehead and a 0.7cm laceration at the junction between the ear lobe and face. No active bleeding on review. No step or irregularity felt on facial bones and on orbital bone in particular. lnfraorbital nerve function was intact. There was swelling to the right upper and lower lip with bruising. No lip laceration. All teeth were intact.

Mr W remained at the Angliss Hospital for ten hours and was then transferred to Knox Private Hospital. He was not showing any signs of serious head injury.

In the evening of 3 June 2019 Mr W's condition deteriorated and he was found to have a subdural haematoma or haematomas. He was operated on in the early hours of 4 June 2019. His condition continued to deteriorate and he was transferred to St Vincent's Hospital. There was a further operation but Mr W did not recover consciousness and died on the 19 June 2019 after being taken off life support.

The police investigation continued, including an examination of items recovered at the scene, collection of CCTV footage and interview of the accused. The accused made no admissions relevant to being the man present at the house or having any recollection of being involved in any incident at the house. It is not suggested that any of this material gives rise to a post offence conduct direction giving rise to an inference or inferences as to any criminal conduct of the accused.

The thrust of the Hearsay Notice is to have admitted into evidence what Mr W said to his wife, Constables Chell and Berkley, Ambulance Officer Dorman-Allen, [and] Dr Navarthamon on 2 June 2019 describing what had occurred earlier on that day.[7]

12 As earlier noted, the application to adduce hearsay evidence was made pursuant to s 65 of the Evidence Act. That section relevantly provides as follows:

Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(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 -

...

(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;

13 Section 65(2)(c) imposes a higher threshold - or a more stringent test - for the admission of hearsay evidence than s 65(2)(b).

14 The 11 representations sought to be admitted, and the details of the persons to whom it is said the representations were made, were set out in Table A attached to the Notice. Table A is as follows:[8]

Mr W stated to Mrs W that the male person had hit him.

Mr W stated to Mrs W that the male person had hit him in the head 4 times.

Mr W stated to Mrs W that the male person had hit him in the face.

Mr W stated to Mrs W that the male person had hit him in the face.

Mr W stated to C Emily Chell that the offender had punched him to the head 4 times.

Mr W provided a description of the offender to C Emily Chell

7. Victim pointed out items that did not belong to him (left behind by offender)

Mr W pointed out items that did not belong to him left behind by the offender to C Emily Chell

Mr W stated to C Jessica Berkley that the offender had punched him in the head 4 times with a closed fist.

Mr W provided a description of the offender to C Jessica Berkley

Mr W stated to Jessica Dorman-Allen that the offender had punched him in the face 4 times with his fists.

Mr W stated to Dr Shalina Navaratnam that he had been punched in the face 4 times by the offender.

15 It is plain that Mr W is not available to give evidence about the matters in question, such that s 65(1) is satisfied. Similarly, there is no issue that evidence sought to be adduced is to be given by persons who 'saw, heard or otherwise perceived the representation[s] being made', so as to satisfy the chapeau to s 65(2). The question is whether one or both of ss 65(2)(b) or (c) is satisfied.

16 The trial judge held that both s 65(2)(b) and s 65(2)(c) were satisfied, and that the evidence should not be excluded under s 137.

17 Before the trial judge, and in his written case in this Court, the applicant challenged the admissibility of each of the 11 representations. However, at the oral hearing the applicant abandoned his challenge to Representations 1, 3, 4, 6, 7 and 9.

(a) Representations 1, 3 and 4 were to the effect that Mr W had been hit in the head, but did not specify a number of times. The challenge to these representations was abandoned because the applicant concedes that Mr W was hit in the head. He accepts that there is no other case theory as to how Mr W obtained his injuries.

(b) Representations 6 and 9 contained a description of the offender.

(c) In Representation 7 Mr W identified items at his property that did not belong to him, that had been left behind by the offender.

18 The applicant now contends that the trial judge erred in relation to the admissibility of Representations 2, 5, 8, 10 and 11 (the 'impugned representations'). Each of these representations was to the effect that Mr W had been hit in the head four times by the offender. He contends that these representations, although made by Mr W 'shortly after' the events in question, were not made 'in circumstances where the representation was unlikely to be a fabrication', and so did not fall within s 65(2)(b).

19 Further, the applicant contends that, if the impugned representations are admissible pursuant to s 65, each of them should be excluded pursuant to s 137 of the Evidence Act. In summary, the applicant contends that the evidence as to the number of blows, coupled with the repetition of Mr W's statements, leads to a high risk that the jury might use the evidence to negative self-defence, when it patently does not. In that sense the prejudicial effect of the evidence is said to outweigh its probative value.

Admissibility under s 65(2)(b) of the Evidence Act

20 As the High Court observed in Sio v The Queen, '[i]t is no light thing to admit a hearsay statement inculpating an accused' under s 65.[9] That is because in those circumstances, 'the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion'.[10] Nonetheless, s 65 provides a clear legislative authority to do so, subject to the conditions there set out.

[T]he application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.[11]

22 Thus, in relation to whether the conditions in s 65(2)(b) are satisfied in the present case, it is necessary to consider each representation individually, and by reference to the circumstances in which each was made, although some of them can be addressed together where more than one representation was made at the same time to the same person. The trial judge took that approach[12] and considered each of the impugned representations in some detail.

23 There can be no doubt that the hearsay evidence of Mr W contained in the impugned representations is relevant to a fact, or facts, in issue in the proceeding. In particular, this evidence is directly relevant to how he obtained the injuries to his head. For the reasons that follow, we consider that each of the impugned representations was admissible under s 65(2)(b) and should not be excluded under s 137.

24 The applicant concedes that the impugned representations were made 'shortly after' the events in question. The key question is thus whether they were made 'in circumstances that make it unlikely that the representation is a fabrication'. This question is directed to 'the unlikelihood of deliberate concoction not the unlikelihood of honest mistake',[13] as the applicant accepted.

25 It follows that the question to be addressed in the present case is whether the impugned representations made by Mr W to the various other persons were made in circumstances where it was unlikely that he had intentionally fabricated them, rather than in circumstances where it was unlikely that he had made an unintentional mistake.

26 Both ss 65(2)(b) and (c) require the court to have regard to the 'circumstances' in which the relevant representation was made. There has been some divergence in the authorities as to what circumstances are included in the consideration required by s 65(2).[14] Of particular relevance to the present case is whether, in considering the circumstances in which a representation was made, the court may consider representations made by the person on a different occasion, and potentially to a different person.

27 In Mankotia and Polkinghorne it was held that the relevant 'circumstances' are restricted to the factual setting at the time the representation was made, so as to exclude other representations made by the unavailable witness on other occasions or to other persons.[15] Thus, in Mankotia, Sperling J held as follows:

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).

...

The Crown says that if the deceased told several people that the accused had threatened to kill her, each representation fortifies the likelihood that the others are not fabrications by her and are highly probable to be reliable. So too, it is said, admissions by the accused himself of having such an intention (contemporaneous admissions to others and retrospective admissions to the police) have a similar probative value. If that approach is legitimate, the court must decide in such a case whether it accepts such other evidence, and the accused must be entitled to challenge it by cross-examination and to contradict it by giving evidence if he wishes to do so. Again, this cannot have been intended.[16]

28 In contrast, in Conway and Williams the Full Federal Court permitted consideration of a much broader range of circumstances, including other representations made by the unavailable witness on a different occasion.[17]

29 In Azizi, this Court observed that these conflicting approaches were resolved by Mason P's analysis in R v Ambrosoli. In that case Mason P said as follows:

Sperling J's approach [in Mankotia] treats the paragraphs as directed at the circumstances of the making of the representation. I agree with this reading of the paragraphs. It follows that it is those circumstances that are to be examined to determine unlikelihood that the representation is a fabrication (par (b)) or high probability that the representation is reliable. Since the matter to be determined is the admissibility of the evidence of the person who saw, heard or otherwise perceived the previous representation the focus remains the reliability of the representation, not (directly) the reliability of the asserted fact.

But it does not necessarily follow that evidence of events other than those of the making of the previous representation cannot throw light upon the circumstances of the making of that representation and its reliability as affected thereby. Events subsequent to the representation being made might do this, for example a (genuine) express retraction by the maker of the previous representation, or evidence indicating that the person who made the previous representation was incapable of having heard or seen the matter which was the subject of the previous representation.[18]

30 Mason P went on to deal directly with the conflict between Mankotia on the one hand and Conway and Williams on the other. He held that he preferred the view of the Full Federal Court.[19] However, his Honour added a qualifying statement, as follows:

I would, however, emphasise that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2).[20]

31 Mason P's judgment was approved by the High Court in Sio.[21] The Court there went on to articulate what some of the 'circumstances' in a given case might include:

When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2)(d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character.[22]

32 Thus the 'circumstances' to be considered in the application of s 65(2)(b) can include previous, or subsequent, statements or conduct of the person who made the representation, to the extent to which they reflect on the reliability of the circumstances of the making of the particular hearsay representation,[23] but not if they do no more than tend to address the asserted fact.

33 In the present case, the various representations are each directed to the asserted facts. In our opinion none of them reflect on the reliability of the circumstances of the making of any of the other representations. We note that the trial judge referred in his reasons to the fact that Mr W gave a consistent account of events at different times.[24] The respondent accepted the correctness of the proposition derived from Ambrosoli, but submitted that the trial judge did not err in the manner there described. Rather, counsel contended, the trial judge had by this time reached his conclusion as to the satisfaction of s 65(2)(b) for each of the representations and, after doing so, made this additional observation that gave 'added comfort' to his Honour. We accept that submission. The trial judge had recorded his conclusions as to the impugned representations at [35], [39], [43], [45] and [47]. It was only after he had articulated those conclusions that he mentioned, in [48], the consistency of the representations.

34 In any event, even if the trial judge erred by relying on the repetition of Mr W's statement, that does not lead to the conclusion that his ruling ought to be set aside. His conclusion that the evidence fell within s 65(2)(b) was plainly correct, for the reasons set out below.

35 In the analysis that follows, we have not had regard to the fact that Mr W made representations to other persons, at other times, when considering whether each particular impugned representation was made in circumstances that meant that it was unlikely to be fabricated. To put it simply, we have not taken into account the fact that some of the impugned representations were repeated in similar terms at different times, and to different persons. That repetition is not, in our opinion, probative of whether the circumstances in which a particular representation was made were such that the representation was unlikely to be a fabrication.

36 The applicant contends that s 65(2)(b) is not satisfied in relation to any of the impugned representations because:

(a) Mr W was under no obligation to tell the truth at the time he made these representations;

(b) Mr W was suffering from physical and emotional trauma at the time he made these representations, likely affecting his ability to think objectively;

(c) Mr W made the representations when injured and under pressure as to who was the instigator of the altercation; and

(d) shortly prior to the incident, when Mr W was leaving the house, he was angry.

37 We shall refer to these as the applicant's 'general grounds' for contending that the impugned representations were made in circumstances where they were not 'unlikely to be fabricated'. In addition, for several of the representations the applicant advanced an argument based on the particular person to whom the representation was made, to which we refer further below.

38 We note that, by way of a further general proposition, the applicant contended that the medical evidence concerning the number of injuries to the head was that there were two, or maybe three, injuries to Mr W's head and that this did not 'marry up with' Mr W's statement that he was hit four times. This contention can be immediately disposed of. It is not the case that any and each hit to the head that Mr W experienced would necessarily have caused a discernible or discrete injury. It is plainly possible to hit a person without causing a discernible injury. This submission does not support an argument that Mr W's statements were not 'unlikely to be a fabrication'.

39 We also note that, in oral argument, the applicant accepted that Mr W's injuries had been caused by him being hit in the head. Thus the applicant's argument was not that the statement by Mr W that he had been hit was not 'unlikely to be a fabrication'. Rather, the real focus of the applicant's argument was Mr W's statement that he had been hit in the head four times.[25] Articulated in that way, the argument concerning whether Mr W's statements were unlikely to be a fabrication requires us to focus on whether the circumstances were such that Mr W's statement as to the number of times he was hit was unlikely to be a deliberate fabrication.

Representation 2, made to Mrs W immediately after the events

40 Representation 2 was made by Mr W to Mrs W immediately after the events in question. Mrs W had heard parts of the altercation between her husband and the offender and had seen that Mr W was injured. She gave a statement where she set out what Mr W said to her immediately after the altercation. Representation 1 was a statement made by Mr W in response to a question from Mrs W: she asked 'did he hit you?' and he replied 'yes'. No objection is now taken to the admission of that representation. Representation 2 was a more detailed account of events. The trial judge described it as 'a simple, uncomplicated narrative to his wife who is familiar with the surrounding circumstances and can observe his injury or injuries'.[26] We agree.

41 In addition to the general grounds set out above, the applicant submits that s 65(2)(b) is not satisfied in relation to the representations made to Mrs W because Mrs W had told Mr W to come inside and was 'very inquisitive as to what had happened'. Counsel submitted that Mr W was being 'confronted by his wife', and that he had to come up with an explanation.

42 We do not accept that submission. The fact that Mrs W wanted to know what had happened provides no basis for being unable to conclude that Mr W was unlikely to have fabricated a version of events. In particular, there is no basis to think that, while he was being truthful as to having being hit by the offender, he deliberately fabricated the number of times he was hit.

43 At the time Representation 2 was made there was no reason for Mr W to fabricate a story for his wife; nor had he had time to reflect upon events and concoct a version of events favourable to him even assuming that Mr W thought that it would somehow be better for him that the person had hit him four times rather than twice. Such an assumption is neither obvious nor likely. The representation was consistent with those aspects of the events that Mrs W had seen and heard herself.[27] The trial judge described Mr W's statement to his wife in these terms:

When Mr W was speaking to his wife he appears to have been simply telling her what happened. He would not actually have known how much of the events she had seen. It is reasonable to assume that because she had asked 'Did he hit you?' that she had not seen the alleged assault. At that time Mr W did not appear to have been seriously injured. Even though Mr W did not come back inside the house when requested by his wife to do so there was no further contact. Mr W stood on the steps and man sat on the steps. The man was told that [Mr and Mrs W] were seeking assistance but he chose to leave and no attempt was made to restrain him. The man asked for directions and they were given. What Mrs W said reinforces my conclusion the these representations are reliable. Mr W was simply telling his wife what had happened.[28]

45 Nor do we consider that the general grounds relied upon lead to any different conclusion. The fact that Mr W was under no obligation to tell the truth goes nowhere; that will commonly be the case in relation to statements to which s 65(2) applies. There was no indication in the evidence that Mr W's physical or emotional state at the time he made this representation was such as to cause him to fabricate a statement.

46 This statement to Mrs W was made immediately after the events in question. In our opinion it is clear that it was made 'in circumstances that make it unlikely that the representation is a fabrication'. Representation 2 is thus admissible under s 65(2)(b) and no error is demonstrated.

Representations 5 and 8, made to the police officers

47 Representation 5 was made to Constable Emily Chell.[29] Representation 8 was made to Constable Jessica Berkley.[30] They had arrived at Mr and Mrs W's home in response to the 000 call. These representations were made very close to the time of the altercation (approximately 20 minutes after the altercation had occurred).

48 The applicant submits that s 65(2)(b) is not satisfied in relation to the representations to the police officers because, in addition to the general grounds, Mr W could be assumed to have known that Victoria Police would be investigating how the altercation commenced.

49 We do not accept that submission. Representations 5 and 8 were statements by Mr W that he had been hit four times to the head. Mr W was, at the time of the statements, plainly injured on or around the head; thus his statement was consistent with that circumstance. Mr W was providing a statement to police following a 000 call. He was at his own home. There was no suggestion that Mr W had committed any crime. There was no reason for Mr W to fabricate his statement; nor had he had any significant time to reflect on or concoct a version of events. In so far as the focus is on the representation that he was hit four times, there was no reason for him to fabricate the number of times he was hit. We consider that this statement was made 'in circumstances that make it unlikely that the representation is a fabrication'.

50 The applicant sought to suggest that, had Mr W instigated the physical altercation with the applicant, that would give him a reason to lie to the police about what had occurred. We do not accept that submission. But even if it were so, the representations do not in terms identify who instigated the physical altercation. They identify that a male person hit Mr W and how many times that occurred. Even if Mr W omitted to state that he had 'thrown the first punch', for example (of which there is simply no evidence), that would not mean that the circumstances in which the statements were made were such that it is 'likely that the representation is a fabrication' (to adapt the statutory language so as to avoid a double negative).

51 Again, we do not consider that the general grounds relied upon lead to any different conclusion. The fact that Mr W was under no obligation to tell the truth goes nowhere; that will commonly be the case in relation to statements to which s 65(2)(b) applies. Statements to police made shortly after the events to which they relate have commonly been held to fall within s 65(2)(b), as the authorities discussed above make clear. And there was no indication in the evidence that Mr W's physical or emotional state at the time he made these representations was such as to cause him to fabricate a version of events for the police.

52 We are satisfied that Representations 5 and 8 were made shortly after the events to which they related and 'in circumstances that make it unlikely that the representation is a fabrication'. The trial judge was correct. They are thus admissible under s 65(2)(b).

53 Representation 10 was a statement made to ambulance paramedic Jessica Dorman-Allen.[31] It was made very close to the time of the physical altercation (approximately 50 minutes after the altercation had occurred). The applicant submits that s 65(2)(b) is not satisfied in relation to the representations to the ambulance officer because, in addition to the general grounds, the ambulance officers would have been 'viewed as persons in positions of authority with a duty to report whatever they were told'.

54 We do not accept that submission. Ms Dorman-Allen observed Mr W's injuries at the time of the representation, namely 'an obvious laceration to his forehead [and] a bruised lip'. He had dried blood on his face and hands. Mr W recounted the events leading to the physical altercation and said that he had been hit in the face four times 'by the male's fists'. This statement was consistent with the injuries observed by the paramedic. Further, it was given to a medical professional as part of the treating history in order to obtain medical assistance, which would motivate a person to tell the truth, so as to receive suitable medical treatment. There was no reason for Mr W to fabricate his statement; nor had he had any significant time to reflect on or concoct a version of events. Again, in so far as the focus is on the representation that he was hit four times, there was no reason for him to fabricate the number of times he was hit when speaking to the ambulance officer.

55 For the reasons already given in relation to Representations 2, 5 and 8, we do not consider that the general grounds relied upon could lead to any different conclusion. We consider that Representation 10 was made 'in circumstances that make it unlikely that the representation is a fabrication'. It is thus admissible under s 65(2)(b).

56 Representation 11 was a statement made to Dr Shalina Navaratnam at Angliss Hospital.[32] It was made reasonably close to the time of the physical altercation.

57 The applicant submits that s 65(2)(b) is not satisfied in relation to the representations to Dr Navaratnam only on the general grounds set out above. We reject that submission.

58 Like Ms Dorman-Allen, Dr Navaratnam observed Mr W's injuries. She observed 'a laceration to the left of his forehead and his ear lobe'. Mr W recounted the events leading to the physical altercation and said that he had been hit in the face four times. This statement was consistent with the injuries observed by the doctor. Again, it was given to a medical professional as part of the history in order to obtain medical assistance, which would motivate a person to tell the truth, so as to receive suitable medical treatment. There was no reason for Mr W to fabricate his statement; nor had he had any significant time to reflect on or concoct a version of events. Once again, in so far as the focus is on the representation that he was hit four times, there was no reason for him to fabricate the number of times he was hit when speaking to his treating doctor.

59 Again, the fact that Mr W was under no obligation to tell the truth does not alter that analysis. And there was no indication in the evidence that Mr W's physical or emotional state at the time he made the statements to the doctor was such as to cause him to fabricate a statement. We consider that Representation 11 was made 'in circumstances that make it unlikely that the representation is a fabrication'. It is thus admissible under s 65(2)(b).

Section 137 of the Evidence Act

60 As noted above, the applicant contends that the trial judge ought to have excluded each of the impugned representations under s 137 of the Evidence Act. We do not accept that submission. In our opinion it was open to the judge to conclude that s 137 did not require exclusion of the impugned representations.

61 Section 137 of the Evidence Act provides as follows:

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.

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

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.[33]

63 The applicant's submissions on s 137 identified two ways in which it is said that the evidence might be misused by the jury unfairly:

(a) First, he contended that admission of the impugned representations would cause unfair prejudice because there is a high risk they would be misused by the jury to rebut a defence of self-defence, in circumstances where they did not in fact do so and where Mr W could not be cross-examined.

(b) Second, he contended that in so far as Representations 5, 8, 10 and 11 were concerned, they were merely repetitions of what was said to Mrs W in Representation 2, and that repetition would be relied upon to impermissibly buttress Mr W's credibility in relation to Representation 2. That is, they would be used unfairly and improperly by the jury to conclude that Mr W's account in Representation 2 was truthful. This prejudice, it was said, could not be cured by appropriate directions to the jury. On this argument, Representation 2 would be admissible, but Representations 5, 8, 10 and 11 would be excluded under s 137. In short, the applicant contended that if, contrary to his primary submission, Mr W's statement that he was subjected to four blows to the head was to be admitted, it should be admitted only once.

64 We commence by noting that the impugned representations are highly probative of a fact in issue, namely the fact that Mr W's injuries were inflicted by a male person punching him in the head four times. The question then is whether the highly probative nature of the evidence is outweighed by unfair prejudice to the applicant.

65 It may immediately be observed that there is some prejudice to the applicant in admitting hearsay evidence of the impugned representations because the applicant will not be able to cross-examine the maker of the representations. Even though the admissibility of evidence where cross-examination is not possible is expressly authorised by s 65, the applicant's inability to cross-examine Mr W is not irrelevant to the analysis, as we discuss further below.

66 As to the applicant's first argument, we note that the issue is whether the admission of the evidence would result in unfair prejudice. As already noted, the evidence is strongly probative of the fact that the deceased was hit multiple times. To an obvious extent that evidence would undermine a defence of self-defence, even assuming that it is raised on the evidence; however that is a consequence of its admission. It does not render admission of the evidence unfair. There is no risk that the jury would misuse the evidence and, no doubt, they will be given directions highlighting that the evidence cannot be challenged by cross examination.

67 In relation to the second argument, we accept that, if evidence of five consistent accounts is admitted, the jury might use the consistent repetition to conclude that the account is true. However, again it does not follow that this would cause 'unfair prejudice' to the applicant. First, once the impugned representations are admitted under s 65(2)(b), they are admitted for the purpose of proving the facts contained in the representations, not simply for proving that those representations were made. In that sense the evidence is relevant and has substantial probative value as evidence of the truth of what was asserted. It tends to support the prosecution case, but it is not thereby unfair to the applicant.

68 Having said that, we accept that there may be a question as to whether, in circumstances such as the present where the accused cannot test through cross-examination the truth of the consistent statements, there is some unfair prejudice to the accused person by reason of the repetitious nature of the statements. We do not think there would be 'unfair prejudice' by the admission of all of the impugned representations, for the reasons given above. However, even if we are wrong, and there is a danger of 'unfair prejudice', it does not follow that the evidence would fall to be excluded under s 137. That section requires exclusion only if the danger of the unfair prejudice would outweigh the probative value of the evidence. In the present case, and bearing in mind the role of an appellate court on an interlocutory appeal, we consider it was open to the trial judge to conclude that the danger of any unfair prejudice would not outweigh the probative value of the evidence.

69 We also note that, to the extent that there is prejudice to the applicant in not being able to cross-examine Mr W, and in the possibility that the jury might use the evidence of the impugned representations improperly, these matters can be dealt with by appropriate directions from the trial judge.

70 For these reasons, we would refuse leave to appeal.

[1] To ensure that there is no prejudice to the administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] See, eg, Stannard v DPP [2010] VSCA 165; (2010) 28 VR 84, 90 [27]; [2010] VSCA 165; Dertilis v The Queen [2010] VSCA 360, [14]; MA v The Queen [2011] VSCA 13; (2011) 31 VR 203, 205 [5]-[6]; [2011] VSCA 13.

[3] Lindsey (a pseudonym) v The Queen [2021] VSCA 230, [54]. The Court considered the authorities referred to in footnote 2, and held that they had incorrectly extended the decision of this Court in McDonald v DPP (2010) 26 VR 242; [2010] VSCA 45, which concerned s 295(3)(b).

[4] (1936) 55 CLR 499.

[5] Lewis (a pseudonym) v The Queen [2018] VSCA 40, [45].

[6] Bray (a pseudonym) v The Queen [2014] VSCA 276; (2014) 46 VR 623, 638 [63]; [2014] VSCA 276, quoting CV v DPP [2014] VSCA 58, [17].

[7] DPP v [Griffith] [2021] VSC 316, [5]-[14] (citations omitted) ('Reasons').

[8] Reasons, Annexure One. Some names have been altered to preserve anonymity, in light of the use of a pseudonym for the proceeding.

[9] [2016] HCA 32; (2016) 259 CLR 47, 65 [60]; [2016] HCA 32 ('Sio').

[13] DPP v Tran (Ruling No 2) [2019] VSC 824, [19]; R v Mankotia [1998] NSWSC 295, 5-6 ('Mankotia'); R v Polkinghorne (1999) 108 A Crim R 189, 195-6 [39]-[45]; [1999] NSWSC 704 ('Polkinghorne'); Conway v The Queen (2000) 98 FCR 204, 241-2 [138]; [2000] FCA 461 ('Conway'); Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490, 502 [47]; [2000] FCA 1868 ('Williams').

[14] See discussion in DPP v Paulino (Ruling No 1) [2017] VSC 343, [25]-[31]. See also Azizi v The Queen [2012] VSCA 205; (2012) 224 A Crim R 325, 337 [50]; [2012] VSCA 205 ('Azizi').

[15] Mankotia [1998] NSWSC 295, 5-6; Polkinghorne [1999] NSWSC 704; (1999) 108 A Crim R 189, 196 [40]; [1999] NSWSC 704.

[16] [1998] NSWSC 295, 10-12.

[17] Conway [2000] FCA 461; (2000) 98 FCR 204, 243-4 [143], [145]; [2000] FCA 461; [2000] 98 FCR 204; Williams [2000] FCA 1868; (2000) 119 A Crim R 490, 503 [54]-[57]; [2000] FCA 1868.

[18] [2002] NSWCCA 386; (2002) 55 NSWLR 603, 614-15 [28]-[29] (emphasis in original); [2002] NSWCCA 386 ('Ambrosoli').

[21] [2016] HCA 32; (2016) 259 CLR 47, 67-8 [69]-[70]; [2016] HCA 32.

[23] DPP v Asling (Ruling No 2) [2017] VSC 38, [22]. See also DPP v Lo (Ruling No 2) [2018] VSC 148, [68].

[25] This is consistent with the applicant's abandonment of his challenge to Representations 3 and 4, which were that Mr W had been hit in the head, without specifying a number of times.

[27] As described in Reasons [33], [34].

[33] (1997) 94 A Crim R 131, 139 (emphasis in original), quoted with approval in Papakosmas v The Queen (1999) 196 CLR 297, 325 [91]; [1999] HCA 37 ('Papakosmas').