//
[2018] VSCA 212
General information, not legal advice.
Court of Appeal (Vic)
2018-08-23
Croucher J, Niall JA
Original judgment source is linked above.
DPP v Vitale (Unreported, Supreme Court of Victoria, Croucher J, 7 August 2017 (Conviction))
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
CRIMINAL LAW - Application for leave to appeal against conviction - Armed robbery and intentionally causing serious injury - Whether judge erred in admitting hearsay evidence of co-offender - Leave granted.
EVIDENCE - Admissibility - Hearsay evidence - Maker of representations not available - Where maker of representations was co-offender - Whether representations made in circumstances that made it likely that representations reliable - Evidence Act 2008 s 65(2)(d) - Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47 considered.
1 On 7 August 2017, following a trial in the Supreme Court of Victoria, the applicant was convicted by a jury of the offences of armed robbery and intentionally causing serious injury. The jury acquitted him of attempted murder and reckless conduct endangering persons. On 27 April 2018, the applicant was sentenced to a term of imprisonment of 11 years with a non-parole period of seven years. He has applied for leave to appeal against his conviction.
2 The single proposed ground of appeal is that the trial judge erred in admitting into evidence, pursuant to s 65(2)(d) of the Evidence Act 2008, parts of a statement made to police by the applicant's brother, Wayne Vitale.
3 For convenience, and without intending any disrespect, I shall refer to the applicant's brother as Wayne.
5 On 1 October 2011, the applicant and Wayne drove to a bottle shop in Kingsville, Victoria in a vehicle belonging to their mother. The car was a white Saab sedan with registration number YHS 479. At approximately 7:48pm, Wayne entered the shop, with his face obscured, and walked to the rear of the shop, where it was intended he would distract the shopkeeper. Shortly thereafter, the applicant entered, his face also obscured, holding a sawn-off shotgun.
6 Shortly after entering the shop, the applicant pointed the shotgun directly at the shopkeeper and forced her to walk behind the service counter. The applicant then aimed the shotgun in the direction of the cash register and discharged a single shot. This shot hit the cash register frame. The applicant then said 'money, money'. The shopkeeper told the applicant there was no money and the applicant unsuccessfully attempted to prise open the cash register, which had become jammed by the shot.
7 Meanwhile, Wayne had taken two slabs of Jim Beam cans from the rear of store, moved quickly towards the front door, and exited the shop. The shopkeeper managed to activate an emergency alarm. During the incident, the shopkeeper's son entered the shop from a residence located at the rear. On seeing the son, the applicant pointed the shotgun at him and told him not to do anything stupid before leaving.
8 The incident within the shop was captured on CCTV cameras.
9 The two brothers then left the scene in the white Saab. Wayne was driving. The applicant told Wayne that he thought someone was following them and lent over to the steering wheel to manoeuvre the car into a side street where it came to a halt. The applicant then got out of the car armed with the shotgun. Wayne remained seated in the car. The car that had been driving behind them was driven by a member of the public, Mr Kennedy, who had not seen or suspected anything untoward and was returning home from shopping. Mr Kennedy turned into the street where the Saab had stopped. He saw the white Saab parked on the side of the road and a person standing in the middle of the road holding what he thought was a water pistol or toy. When he drove past the Saab, he saw a person sitting in the driver's seat.
10 Mr Kennedy decided to take a different route home and commenced a three-point turn. He reversed his car back towards the Saab before coming to a halt as part of the three-point turn. At this point, the applicant walked over the driver side door of Mr Kennedy's car, raised the shotgun, and discharged a shot directly at Mr Kennedy. The shot pierced the driver's side window causing it to smash. The bulk of the shot hit Mr Kennedy in the left wrist with some of the shotgun pellets hitting his right arm. The applicant and Wayne drove away. Mr Kennedy later told the police that the car was a white Saab sedan.
11 On 19 October 2011, police executed search warrants at two properties. The first of those properties was the address of the applicant's aunt, with whom the applicant was staying at that time. The white Saab used in the armed robbery was located on the front lawn of the premises. In the boot of the car was a blue sports bag containing a sawn-off shotgun. The car was subject to a forensics examination which revealed the presence of particles that were highly characteristic of gunshot residue within various parts of the interior. At the second property, where both the applicant and Wayne resided at the time of the alleged offending, a search of the premises revealed, in a black plastic bin bag, a black backpack containing an assortment of Winchester brand ammunition, including 12 gauge shotgun ammunition, air rifle pellets and other ammunition. A wooden case containing a sawn-off shotgun barrel and butt stock was also located.
12 The applicant was interviewed on the same day. He denied the offending, stating that he was at a birthday party at Endeavour Hills during the afternoon and evening of the day of the offence. He said that his cousin, 'James Lua', had attended that party claiming he had committed an armed robbery and shot a man. He said that he only occasionally drove the white Saab and denied any knowledge of the shotgun, the wooden case or the ammunition.
13 Police investigation subsequently revealed that there were no records of a 'James Lua' travelling in or out of Australia prior to 2011. Although the applicant had said that his cousin 'James Lua' had been staying at the applicant's mother's house, the applicant's mother said that she had never heard of such a person nor the name 'Lua' in connection with the family. The applicant's housemate had never heard of 'James Lua' either.
14 In June 2016, the police obtained warrants to plant a listening device in the applicant's vehicle and conduct telephone intercepts. On 22 June 2016, news media played the CCTV footage of the armed robbery and an interview with Mr Kennedy.
15 On the morning of 23 June 2016, police attended an address and spoke with Wayne, advising him that they were looking for his mother in relation to the white Saab and its connection to the armed robbery.
16 After the police attended the property, Wayne telephoned the applicant to tell him of the renewed police interest in the matter. Craig later telephoned Wayne and told him not to worry about the media coverage. The two brothers agreed to meet.
17 The listening device recorded a conversation between the applicant and Wayne in a vehicle at approximately 1:27pm on 23 June 2016. The conversation commenced with a discussion about the fact that a number of police officers had attended at Wayne's property that morning. Wayne said he regretted opening the door to the police officers and letting them in. There was then discussion about the segment on the television news from the previous night.
18 There then came a discussion about what information the police had in relation to the robbery and, in particular, what they knew about the car that was used. The following exchange was recorded: [1]
MR C VITALE: So apparently what - what have they got? So what have they said?
MR W VITALE They've got nothing. They want to know the car. Khali, they got the numberplate.
MR C VITALE: That's - who got the numberplate?
MR W VITALE: That - the cunt who we did.
MR C VITALE: No, he didn't He's a liar.
MR W VITALE: He remembered it.
MR C VITALE: Brother, he's a liar. I already looked, brother don't lie cunt. He tried to figure it out. Brother, I already read the article. The article said about the thing. It didn't say the numberplate.
MR W VITALE: Nah, nah, but the thing is - - -
MR C VITALE: He doesn't - but the cunt hasn't got shit.
19 The two brothers then discussed telling the police that they knew who was involved in the robbery and giving them names of persons who, they would say, had left the country. This, it was suggested, would cause the police to 'travel the world' investigating potential suspects.
MR C VITALE: Brother, just be like, brother, I'm looking at 15 years, cunt. You see what it said, attempted murder. Brother, I fingered the cunt in the fuckin' shoulder and the thing should have fuckin' fucked his head off. I should have blew his head off when I had the chance. Fuck. I had a fuckin' - - -
MR W VITALE: That's why I'm angry man.
MR C VITALE: Fuck, man, just leave it. It is what it is but remember, brother, he hasn't got my numberplate. Brother, a white Saab with two - apparently - that's the story, brother, that your brother wasn't in the right mind frame. Are you listening to me brother, I can't talk. I need you to be on the same page.
21 It is clear from the tape that the brothers thought that someone had informed on them to the police.
22 A second conversation in the vehicle was recorded shortly thereafter. The prosecution alleged that, during that conversation, the brothers were watching a video (with audio) of the news report the previous day in which the CCTV footage had been played. It is clear from the recording that the two brothers were discussing the images seen in the CCTV footage. The following exchange was recorded:
MR W VITALE: Oh here you come after me.
MR W VITALE: Oh, fuck that's nothin', bro. Replay it again.
MR C VITALE: · That's nothing. So what have they got, Wayne? So is that all they're [sic] got?
MR W VITALE: Is that all they got. Fuck, why is she there?
MR C VITALE: Remember she followed you?
MR W VITALE: Hmm. I thought you popped it earlier.
MR C VITALE: Nah, I popped it now when I was going - she was pissing me off. Fuckin' shot in the cash register. I go, 'Fuckin' next one I'll put in your head.' This was when I - when she grabbed the cash and the son was over here and the son was, like, 'I'm gunna call the cops,' and you had already gone and I swore I said, 'Nah, it's too late.' See by then she fucked it up. She fucked it up. They've got nothing, man.
MR W VITALE: Is that all?
MR C VITALE: So what have I got to worry about?
MR W VITALE: No, you've got nothing to worry about. That's not - - -
MR C VITALE: Any of your boys ask from Carrum Down from all that - question that - say, 'Nah, I saw it.' Say, 'Probably the northern boys' - yeah? 'Brother was probably the northern boys. I heard of them doing it but' - when they go, 'Didn't - did Craig ever - my brother never owned a firearm.'
MR W VITALE: I didn't know how fast you came out. I walked in and - - -
MR C VITALE: I was already gone.
MR W VITALE: I walked in - - -
MR C VITALE: Yeah,' 'cause her son came out and he tried to fuckin' throw the bottle, the faggot. I said, 'The next one you fuckin' pull I'm gunna pull straight in your head.' So what do you reckon? So at this stage they're not looking for me.
23 On 24 June 2016, the day after the covert recordings were obtained, the applicant was arrested. Also on that day, Wayne was arrested and undertook a record of interview in which he denied any involvement in the armed robbery. Wayne was then told about some of the contents of the covertly recorded conversations that he had with the applicant. I interpolate to note that, on this application, I was not provided with that record of interview. Accordingly, I am not aware of the extent to which the contents of the covert recordings were disclosed to Wayne, nor whether the police put to him any allegations regarding his role in the armed robbery and the shooting of Mr Kennedy.[2]
24 Later that day, Wayne asked to be re-interviewed and provided a signed statement to police.
25 That statement included the following paragraphs:
I drove out of the side street and turned right and went past the bottle shop. This was the only way I knew to get home.
26 On 24 April 2017, Wayne pleaded guilty to one charge of armed robbery and one charge of handling stolen goods before a judge of the County Court. He was sentenced to a term of imprisonment of three years and six months for the armed robbery and two months on the handling charge. The latter sentence was made fully concurrent on the armed robbery sentence.
27 The applicant was arraigned in the Supreme Court on an indictment that included charges of armed robbery and attempted murder.
The s 65 application
28 Before the commencement of the applicant's trial, the prosecution indicated that it proposed to call Wayne to give evidence in accordance with the statement that he had signed. Wayne was identified on the presentment as a witness. The applicant indicated that it would seek a Basha inquiry should Wayne be called.
29 As thing transpired, Wayne was called on a Basha inquiry at the commencement of the trial. He refused to answer any questions. The prosecution foreshadowed that it might make an application under s 38 of the Evidence Act to cross-examine him as an unfavourable witness and, if he maintained his refusal to give evidence, an application under s 65 to tender evidence in his statement. The judge gave an anticipatory ruling in which he indicated that s 38 would not apply if Wayne refused to give evidence, but that representations in his statement would be admissible pursuant to s 65(2)(d). The judge noted that the parts of the statement to be tendered into evidence would be a matter for discussion.
30 Wayne subsequently appeared on a voir dire but again refused to answer any questions.
31 The prosecution applied under s 65 of the Evidence Act 2008 to adduce evidence of certain representations made in Wayne's statement. Those representations were contained in an agreed, edited version of the interview in which Wayne made and signed his statement. The judge gave a ruling in which he acceded to that application. The prosecution then played to the jury the edited video of the interview.
32 The judge accepted that Wayne was unavailable within the meaning of s 65 of the Evidence Act. The judge, correctly, recognised that s 65(2)(d) required him to be affirmatively satisfied that two prerequisites had been met. The first prerequisite was that the representations were against the interests of the person who made them at the time they were made. The second prerequisite was that the representations were made in circumstances that made it likely that those representations were reliable.
33 The judge was alive to the distinction between the circumstances in which the representations were made and the reliability of the representations themselves. He observed that s 65(2)(d) does not direct attention to the reliability of the individual who made the out-of-court representations, but rather to the circumstances in which the representations were made and whether those circumstances make it likely that the representations are reliable.
34 In examining the circumstances in which the representations were made, the judge regarded as significant the sequence of events leading to the making of the statement to police. The judge noted that the conversation between the two brothers was recorded shortly before they were arrested. After Wayne was arrested, he initially made denials but, during the course of the interview, the police disclosed to him some of the material garnered from the covert recordings. Next, Wayne completed the interview and consulted a lawyer before seeking to be reinterviewed. At the further interview, he made the statement and signed it. The judge observed that the content of the statement was entirely consistent with what he and the applicant had said in the unguarded conversation recorded by the listening device a relatively short time before the interview. It was the combination of these circumstances that, in his Honour's view, made it likely that the representations were reliable.
35 In arriving at that conclusion the judge had regard to the additional factors that each of the representations were against Wayne's own interests 'in one way or another'; that the representations were, in part, against the interests of his brother.; and that the representations were made in circumstances that subjected the maker to a charge of perjury for any false statement.
36 The applicant's case at trial was that although Wayne had committed the armed robbery the prosecution had not proved the identity of the co-offender. In relation to the covert recordings from the vehicle it was contended that the prosecution had wrongly attributed the speaking parts. In closing address, the applicant's counsel submitted that 'maybe [Wayne] realised, police have got the voices around the wrong way'. Counsel for the applicant contended to the jury that what may have happened is that the police attributed the wrong brother to each voice and that Wayne, realising this, saw an easy way to avoid being charged with attempted murder.
37 The judge indicated that he would give 'very strong directions' about the fact that the evidence was hearsay, there was no opportunity for cross examination and that the representor was an accomplice.
38 The applicant was convicted of the charges of armed robbery and intentionally causing serious injury.
39 The applicant submitted that the matters upon which the judge relied went to the credibility and reliability of the maker of the representations rather than the circumstances in which the representations were made. It was submitted that questions of the credibility or reliability of the maker of the representation have no place in the assessment required by s 65(2)(d).
40 The applicant contended that the fact that the representations were consistent with other evidence went to reliability of the representation and the maker of the representations which, it was submitted was not relevant to s 65(2)(d). In relation to the sequence of events leading to the making of the statement, it was contended that there was in fact a considerable period of time between the cessation of Wayne's first interview with police and the finalisation of his statement, and that these circumstances could not be said to make it likely the representations were reliable. The applicant also contended that the fraternal relationship would not necessarily prevail over Wayne's self-interest. Finally, and relatedly, it was submitted that Wayne's role as a co-offender 'must operate to overwhelm any other factors that suggest the reliability of the representation.'
41 In the alternative, it was contended that even if the representations satisfied the test in s 65(2)(d), the evidence should have been excluded pursuant to s 137 or in the exercise of the judge's residual discretion to ensure a fair trial.
42 The respondent accepted that s 65(2)(d) turns on the reliability of the representations, which is be determined by reference to the circumstances in which the representations were made. It was accepted that it would not be legitimate to consider corroborating evidence for the purpose of determining admissibility.
43 However, the respondent submitted that the judge did not commit the errors attributed to him. It was submitted that the consistency between the representations contained in Wayne's statement and the contents of the covertly recorded conversations of 23 June 2016 was not relied on by the judge as corroboration but that they formed part of the circumstances in which the representations were made. The knowledge of the police and the representations that were contained in the covert recordings were part of the circumstances in which the reliability of the representations fell to be assessed.
44 It was submitted there was no error in taking into account the time between the two records of interview, the fraternal relationship between the applicant and Wayne, and the fact that the statement took the form of sworn statement.
45 Section 65 provides:
65 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 -
(a) .......
; or
(d) was -
(i) against the interests of the person who made it at the time it was made; and
(ii) made in circumstances that make it likely that the representation is reliable.
...
46 The operation of s 65(2)(d) in the context of co-offenders was considered by the High Court in Sio v The Queen ('Sio').[4] Relevantly for present purposes, the following points may be derived from that judgment. First, it is necessary to identify the particular representation that is sought to be tendered in evidence as proof of a fact in issue.[5] The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. It would be an error to proceed as if the inquiry is whether the statement as a whole was made in circumstances that made it reliable, or to assess the question based on the general reliability of the statement.[6]
47 Second, and relatedly, the serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. The focus demanded by the language of s 65 is inconsistent with an impressionistic evaluation of the statement as a whole.[7]
48 Third, s 65(2)(d) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable, notwithstanding its hearsay character.[8] The judge must be alert to the factors that may tend against reliability, but should not be distracted by focusing on what circumstances may found a conclusion that a representation is unlikely to be reliable.[9]
49 Fourth, s 65(2)(d) is directed to the objective circumstances in which the representation was made, not the apparent truthfulness of the person making it.[10]
50 In Sio, the maker of the representation was a co-offender who had an interest in minimising his own involvement in an armed robbery that resulted in the stabbing and death of a person. The High Court held that the co-offender's assertion that the accused had given him the knife and put him up to the robbery was inadmissible 'by reason of the circumstance that [the maker of the representation] was [the accused's] accomplice.'[11] The High Court found that nothing else in the objective circumstances shifted the balance in favour of a finding of likely reliability.[12]
51 Having regard to those principles, there are three factors that have persuaded me to grant leave to appeal.
52 The first is that the judge's ruling does not explicitly identify the particular representations that were sought to be adduced.
53 The second is that a significant factor in the judge's assessment of the circumstances was that the representations were made after Wayne had been confronted with the contents of the covert recordings. The judge noted that 'his assertions as to what he did and what his brother did are entirely consistent with what he and his brother have both said in an unguarded conversation recorded by the listening device in the car only a relatively short time before that and which he was alerted to in the interview'.
54 The covert recordings were significant in two respects. First, they contained powerful evidence that implicated the two brothers in the offending. Second, at the time of his second record of interview, Wayne would have known that the police were armed with a powerful case based on the white Saab, the finding of the shotgun and the covert recordings and that there was no point in maintaining his denials of involvement.
55 The first aspect goes to the reliability of the representations themselves and the extent to which they are supported by other evidence. Relevantly, however, the covert recordings and the fact that the police had them were part of the circumstances in which the relevant representations were made. That matter was relevant to Wayne's opportunity and incentive to lie about the offending.
56 The third factor that has persuaded me to grant leave is that the application of s 65(2)(d) in the context of co-offenders raises a matter of some importance generally.
57 In my view, it is reasonably arguable that the judge was influenced by an overall assessment as to the truthfulness of the account given by Wayne to the police rather than whether the circumstances in which he implicated his brother made it likely that his representations in that regard were reliable.
[1] The transcript of the conversations (with speaking parts ascribed to each brother) was tendered by the prosecution. The words shown in italics were translated from Samoan.
[2] I note that a prosecution witness, Detective Senior Constable Warren Hill, gave evidence that a 'snippet' of the audio recorded by the listening device was played to Wayne during the first interview.
Vitale
The Queen [2018] VSCA 212
(2016) 259 CLR 47