Proceedings if maker not available

‘Unavailability of persons’

8.21 Sections 63 and 65 of the uniform Evidence Acts provide exceptions to the hearsay rule, in civil and criminal proceedings respectively, where a person who made a previous representation is not available to give evidence about an asserted fact.

8.22 The Acts provide that a person:

is taken not to be available to give evidence about a fact if:

(a) the person is dead; or

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

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

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

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.[17]

Submissions and consultations

Submissions and consultations on IP 28

8.23 The Office of the Director of Public Prosecutions (NSW) (NSW DPP) noted that United Kingdom legislation relating to criminal proceedings contains a provision permitting the admission of hearsay evidence of a person who is ‘unfit to be a witness because of his bodily or mental condition’.[18]

8.24 Hearsay evidence may also be admitted in criminal proceedings where ‘through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence’.[19]

8.25 By contrast, the uniform Evidence Act provisions do not ‘squarely provide for this category of witness’.[20] The NSW DPP submitted that the definition of ‘unavailability of persons’ should be amended to apply clearly to the situation where a person is ‘“not available” by reason of his/her bodily or mental/psychological condition or for some other sound reason, he/she is unfit to attend as a witness’.[21]

8.26 The NSW DPP referred to then proposed NSW legislation to enable the transcript of evidence given by complainants in sexual offence trials to be admitted as evidence of the complainant in any retrial.[22] The Criminal Procedure Amendment (Evidence) Act 2005 (NSW), which commenced in May 2005, amended the Criminal Procedure Act 1986 (NSW) to permit the admission of a record of evidence given by a complainant in a sexual assault proceeding in any new trial that is ordered in an appeal.

8.27 The Commissions observe that, where a complainant in the sexual offence case is unavailable, the transcript of evidence may be able to be admitted under the existing provisions of the uniform Evidence Acts. Section 65(3) provides that:

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:

(a) cross-examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

Submissions and consultations on DP 69

8.28 In DP 69, the Commissions proposed that the uniform Evidence Acts be amended to provide that a person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give evidence about the fact.[23] Overall, Proposal 7–4 has been well received.[24]

8.29 Women’s Legal Service Victoria supports a provision which treats a witness as unavailable because of mental inability to give evidence due to fear, and cites the United Kingdom legislation approvingly.[25]

8.30 The Law Society of New South Wales objects to Proposal 7–4, which it finds ‘disturbing given the potential breadth of interpretation’ of the proposed definition ‘and the consequential loss of the ability of the defendant to cross-examine the witness’.[26] Similarly, one practitioner considers that the wording of the proposal would leave it open to manipulation by witnesses to allow untested statements to be admitted.[27]

8.31 Other submissions and consultations also point to perceived difficulties with the wording of Proposal 7–4, but say that the policy behind the proposal is sound. The Australian Government Attorney-General’s Department points out that the language of Proposal 7–4 might literally apply to a wheelchair-bound person, for example. It queried whether this was a result within the mischief sought to be overcome by the proposal.[28]

8.32 It is also queried whether the drafting of Proposal 7–4 would enable it to apply to persons to whom policy requires that it apply. One suggestion is that the words ‘mentally or emotionally incapable’ be used to ensure the provision covers complainants unwilling to face the trial because it would cause an emotional setback.[29] Similarly, the NSW DPP suggests inserting the words ‘or whose mental or physical wellbeing is likely to be adversely affected by giving’ after the words ‘unable to give’ in the proposal.[30]

The Commissions’ view

8.33 The Commissions recommend broadening the definition of ‘unavailability of persons’ for reasons given above and in DP 69. A provision reflecting this recommendation is set out in Appendix 1. It will be noted that the wording of the provision differs from the wording of Proposal 7–4. Words that ensure that the provision is not abused but at the same time is applied to all persons who should on policy grounds be considered ‘unavailable’ are not easy to find. It is also difficult to find words that do not carry negative connotations.

8.34 With these points in mind, the Commissions have retained the formula ‘mentally or physically unable’. To prevent abuse of the amendment and to prevent the amendment being applied to discriminate against persons wrongly, the proposed amendment now contains a qualification that the ‘inability’ of the witness ‘cannot reasonably be overcome’. This is designed to exclude the possibility that (for example) a person unable to speak or hear but who can communicate in writing may be considered ‘physically unable’ to testify: there will generally be reasonable measures for overcoming such difficulties.[31]

8.35 As to mental inability, it is intended that such an amendment may facilitate, in at least some cases, the admission of the transcript of a complainant’s evidence in a retrial. Requiring the complainant to testify again may, depending on the circumstances of the case, do such emotional or psychological harm to the complainant that the complainant should be considered unavailable to give the particular evidence.

8.36 In terms of the reliability of evidence, there appears to be no reason why the previous representations of persons who are mentally or physically unable to give evidence about particular facts should be any less reliable than evidence of the previous representations of persons satisfying the criteria of the existing definition of ‘unavailability of persons’. The provisions in Part 3.11 provide a further safeguard.

8.37 It is not intended that the amendment should lower the standard of unavailability generally. For instance, it is not intended that any person should be considered unavailable to give evidence simply by producing a medical certificate asserting that a person is mentally or physically unable to give evidence about a fact. A real mental or physical inability to testify must be shown. These are factual questions courts are well placed to consider on a case-by-case basis, looking to all the circumstances.

Recommendation 8–2 The uniform Evidence Acts should be amended to provide that a person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give evidence about the fact and that inability cannot reasonably be overcome.

Representations of complicit persons

8.38 Questions have been raised about the operation of s 65 in relation to previous representations from persons who are complicit in the offence with which an accused is charged, but who refuse to give evidence at trial. The relevant parts of s 65 read:

(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 was:

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

(c) made in circumstances that make it highly probable that the representation is reliable, or

(d) against the interests of the person who made it at the time it was made.

8.39 In R v Suteski, the prosecution relied on s 65(2)(d) to tender an electronic recording of a police interview with an accomplice who had subsequently pleaded guilty. The person had refused to give evidence at the committal, and adopted the same position at trial.[32]

8.40 The NSW Court of Criminal Appeal held that the trial judge had not erred in admitting into evidence representations made in the police interview as evidence of the truth of the facts asserted in those representations. The Court noted that counsel for the appellant, at trial and on appeal, had acknowledged that the Crown had taken all reasonable steps to compel the witness to give evidence and that the trial judge had regarded that acknowledgement as a recognition that the sanction of contempt was unlikely to make the witness change his mind.[33]

8.41 The decision in Suteski has provoked concern about allowing the admission of previous representations from a person complicit in an offence to be used against a defendant who does not have the opportunity to cross-examine that person.

Submissions and consultations

8.42 In DP 69, the Commissions proposed that s 65(2)(d) be amended to require that the representation be made against the interests of the person who made it at the time it was made and in circumstances that make it likely that the representation is reliable.[34] The proposal was made in light of concerns raised in response to IP 28 that s 65 permits previous representations made by persons who are taken to be unavailable to give evidence.[35]

8.43 The NSW DPP, the Commonwealth Director of Public Prosecutions (CDPP), and the Law Society of New South Wales support Proposal 7–5.[36] A practitioner supporting the policy behind the proposal expresses concern that the wording, ‘in circumstances that make it likely that the representation is reliable’, will not solve the problem. It is said that a police interview could easily be considered to be a circumstance making it likely that a representation is reliable, and that records of interview and admissions of co-accused persons should be completely excluded.[37] The mere fact that a representation is made in that context does not mean that the representation is reliable, although it often will be an indication of reliability.

The Commissions’ view

Application of the policy

8.44 While the primary policy underlying the hearsay provisions is that the best evidence available to a party should be received, in its previous Evidence inquiry the ALRC considered that, in criminal trials where the maker of a statement is unavailable, some guarantees of trustworthiness should be required before hearsay evidence is admissible against an accused.[38]

8.45 The assumption behind s 65(2)(d) is that where a statement is against the interests of the person who made it, this provides an assurance of reliability. However, where the person who made the statement is an accomplice or co-accused, this may not be the case. An accomplice or co-accused may be motivated to downplay the extent of his or her involvement in relevant events and to emphasise the culpability of the other.

8.46 There is reason to suspect that an accomplice or co-accused would be more inclined to take such a course where (for example) they have immunity from prosecution. Where the accomplice gains immunity from prosecution the reliability safeguard of the representation being against self-interest no longer applies: the accomplice can fabricate evidence to implicate the accused and will only suffer the legal consequences of perjury if discovered.

Statutory amendment

8.47 In the hearing of an application for special leave to appeal to the High Court, counsel for the appellant in Suteski argued that s 65(2)(d) should be read as requiring some assurance of reliability.[39] The application was unsuccessful, with Gleeson CJ stating, ‘[i]f the ultimate safety net is [Part 3.11], then you do not need to torture the language of section 65’ to read in some assurance of reliability.[40]

8.48 While the admission and use of evidence from an accomplice or co-accused can be controlled by ss 135–137, amendment of s 65(2)(d) has the advantage of excluding evidence that carries such a risk of being unreliable. A rule making it inadmissible unless it meets some criteria of trustworthiness is warranted. Evidence of that quality should not be prima facie admissible.

8.49 A submission is made that, by introducing a second limb to s 65(2)(d), the proposed amendment introduces unwanted complexity. The same submission says that the proposal obscures the relationship between s 65(2)(d) and (c).[41] Paragraph (c) applies where the representation was ‘made in circumstances that make it highly probable that the representation is reliable’. No harm appears to result from any overlap between the various paragraphs. Further, there might not be overlap. Paragraph (c) requires it to be ‘highly probable’ that the representation is reliable, while the new component of paragraph (d) would only require it to be made in circumstances that make it likely the representation is reliable. As to introducing further complexity to s 65(2), the Commissions take the view that the amendment is relatively simple and clear. A safeguard of the proposed kind is necessary to avoid the outcomes described above.

8.50 While the recommendation is directed specifically to address problems concerning the evidence of an accomplice or co-accused, it involves an amendment to a provision of broader application: obviously, statements against interest can arise in other situations. However, amendment of s 65(2)(d) seems a simpler solution than drafting a new provision dealing specifically with the evidence of accomplices, which might unnecessarily introduce complexity into the Acts.

8.51 The Commissions recommend that s 65(2)(d) be amended to require the representation to be made against the interests of the person who made it at the time it was made and in circumstances that make it likely that the representation is reliable. The intention is to ensure that the hearsay rule is not lifted where a statement against interest is made in circumstances that would not suggest reliability.

Recommendation 8–3 Section 65(2)(d) of the uniform Evidence Acts should be amended to require that the representation be made against the interests of the person who made it at the time it was made and in circumstances that make it likely that the representation is reliable.

‘Circumstances’ and the reliability of evidence

8.52 Sections 65(2)(b) and (c) refer respectively to ‘circumstances’ that make it unlikely that the representation is a fabrication and ‘circumstances’ that make it highly probable that the representation is reliable.[42]

The authorities

8.53 There has been conflicting authority regarding what circumstances may be taken into account when assessing these matters.[43] In Williams v The Queen,[44] a Full Court of the Federal Court said that the statutory test is not whether, in all the circumstances, there is a probability or a high probability of reliability, but whether the circumstances in which the representation was made determine that there is such a probability.[45] The Full Court cited[46] with approval Sperling J’s observation that the assessment of reliability under s 65(2)(b) is not ‘at large’, but is ‘a narrower test’ of ‘the unlikelihood of concoction to which the paragraph is directed’.[47]

8.54 When assessing the reliability of evidence under s 65(2)(b) and (c), the court is permitted to consider any other events that are relevant to the circumstances in which the statement was made. However, in Williams the trial judge was held to have erred in addressing only the question of whether the evidence contained within the transcript of interview was reliable, rather than assessing all the circumstances in which the statement was made.[48]

8.55 In R v Ambrosoli, the NSW Court of Criminal Appeal held that relevant case law, including Williams, established that the focus when approaching s 65(2) should be on the circumstances of the making of the previous representation rather than on the accuracy of the representation.[49] That is, evidence tending only to the reliability of the asserted fact should not be taken into account.

Submissions and consultations

8.56 It was suggested in IP 28 that injustice might result when only the circumstances of the making of the representation can be taken into account under s 65(2), such as in a situation where the Crown seeks to lead representations made by way of records of interview of persons who have since died.[50] It was asked whether concerns are raised because the ‘circumstances’ that may be taken into account under ss 65(2)(b) and (c) in assessing the reliability of a previous representation are limited.[51]

8.57 The Commissions noted submissions in DP 69 that state that the ‘circumstances’ able to be taken into account under s 65(2)(b) and (c) should be broadened, for example, to include the inherent truthfulness or otherwise of the representation.[52] Submissions were also noted that considered the provision should be left unchanged,[53] including for the reason that the question has been effectively settled by R v Ambrosoli.[54] The New South Wales Public Defenders Office (NSW PDO) submits that the view rejected in Ambrosoli—that the focus when approaching s 65(2) should be on the accuracy of the representation—could lead to a situation ‘where the judge had to in effect assess the strength of a party’s case, before being able to determine if this particular item was admissible’.[55]

The Commissions’ view

8.58 The Commissions’ view is that s 65(2) of the uniform Evidence Acts should be left unchanged regarding the ‘circumstances’ properly taken into account under s 65(2). Bearing in mind that the reliability of the representation will ultimately be a question for the tribunal of fact, it is reasonable for the legislation to delineate the s 65(2) hearsay exception by reference to the circumstances in which a representation was made and to the circumstances bearing on reliability, rather than also requiring the trial judge to form a view about the actual reliability of the representation. An inquiry as to whether the representation is reliable is likely to require the trial judge to consider the whole of a prosecution case and determine guilt before admitting the representation as reliable. This would sit uncomfortably with safeguards designed to afford the defendant a fair trial.

Evidence of a previous representation adduced by a defendant

8.59 Section 65(8)(a) of the uniform Evidence Acts provides:

(8) The hearsay rule does not apply to:

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; …

8.60 Section 65(9) allows another party to adduce hearsay evidence that qualifies or explains a representation admitted under s 65(8)(a). The subsection reads:

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:

(a) is adduced by another party; and

(b) is given by a person who saw, heard or otherwise perceived the other representation being made.

8.61 Section 65(9) turns attention to evidence ‘about a matter’ and ‘about the matter’ with which evidence adduced under s 65(8)(a) is concerned.

‘About a matter’

8.62 The suggestion was noted in IP 28 that the expressions ‘about a matter’ and ‘about the matter’ might be interpreted narrowly or broadly and so have uncertain meaning.[56]

8.63 In R v Mankotia, the accused proposed to adduce evidence of representations by a deceased person as to aspects of their ‘relationship’.[57] Sperling J observed that a ‘liberal construction’ of the term ‘the matter’ would allow evidence of any relevant representation by the deceased about the relationship. A narrower construction would confine ‘the matter’ to the factual aspect of the relationship that was the subject of a representation adduced by the accused, or perhaps to the issue in the proceedings to which such a representation related.[58]

8.64 It was asked in IP 28 whether there is significant uncertainty about the scope of the expression ‘about the matter’ in s 65(9).[59] Submissions were noted that suggest there is no need to clarify the meaning of this term in s 65(9).[60] For example, the NSW PDO said that it is difficult to see how it could be ‘amended or defined in a way which would take into account the wide range of situations to which it might apply’.[61]

The Commissions’ view

8.65 The Commissions re-affirm the view expressed in DP 69.[62] That is, the approach should be to identify the content of the representation to be adduced by the defendant and to consider whether the other representations can be said to be relevant to it. As a result, it should not be necessary to construe the term ‘about a matter’ and it may, in fact, be preferable to avoid defining it. If it is necessary to construe the term, a broad construction should be adopted and, where that may cause unfair prejudice, the mandatory and discretionary exclusions in Part 3.11 should be used. Narrowing the interpretation of any of the hearsay exceptions carries the danger of introducing technicalities, something the uniform Evidence Acts are intended to remove and avoid. The Commissions, therefore, do not propose any amendment to s 65(9) of the uniform Evidence Acts.

[17]Evidence Act 1995 (Cth) Dictionary, Pt 2 cl 4; Evidence Act 1995 (NSW), Dictionary, Pt 2 cl 4; Evidence Act 2001 (Tas) s 3B; Evidence Act 2004 (NI) Dictionary, Pt 2 cl 4.

[18]Criminal Justice Act 2003 (UK) s 116(2)(b). Similarly, in Queensland, s 93B of the Evidence Act 1977 (Qld) provides a hearsay exception in prescribed criminal proceedings if the person who made the hearsay statement is unavailable because the person is ‘mentally or physically incapable of giving the evidence’.

[19]Criminal Justice Act 2003 (UK) s 116(2)(e).

[20]Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[21]Ibid.

[22]Ibid.

[23]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 7–4.

[24]The Law Society of South Australia, Submission E 69, 15 September 2005; Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005; Victoria Police, Submission E 111, 30 September 2005.

[25]Women’s Legal Services Victoria, Submission E 110, 30 September 2005.

[26]The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[27]G Brady, Consultation, Sydney, 26 August 2005.

[28]Attorney-General’s Department, Consultation, Canberra, 24 August 2005.

[29]A Cossins, Consultation, Sydney, 3 August 2005.

[30]Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[31] See Uniform Evidence Acts s 31, which deals with deaf and mute witnesses.

[32]R v Suteski (2002) 56 NSWLR 182.

[33]Ibid, [83].

[34]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 7–5.

[35] See Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 5–5.

[36]Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005; Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[37]G Brady, Consultation, Sydney, 26 August 2005.

[38]Australian Law Reform Commission, Evidence, ALRC 38 (1987), [139].

[39]Suteski v The Queen [2003] HCA Trans 493.

[40]Ibid, 4.

[41]J Gans, Submission E 59, 18 August 2005.

[42] Section 65(2)(c) did not derive from recommendations of the ALRC but from the judgment of Mason CJ in Walton v The Queen (1989) 166 CLR 283, 293: S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.2080].

[43]S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.2060]; R v Gover (2000) 118 A Crim R 8; R v Mankotia [1998] NSWSC 295.

[44]Williams v The Queen (2000) 119 A Crim R 490.

[45]Ibid, [54].

[46]Ibid, [47].

[47]R v Mankotia [1998] NSWSC 295, [10].

[48]Williams v The Queen (2000) 119 A Crim R 490, [55]–[58].

[49]R v Ambrosoli (2002) 55 NSWLR 603, 616.

[50]Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [5.46].

[51]Ibid, Q 5–6.

[52]Confidential, Submission E 5, 6 September 2004; Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Law Council of Australia, Submission E 32, 4 March 2005.

[53]New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[54]R v Ambrosoli (2002) 55 NSWLR 603.

[55]New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[56]Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [5.49]. See also S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.2220].

[57]R v Mankotia [1998] NSWSC 295.

[58]Ibid.

[59]Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 5–7.

[60]Law Council of Australia, Submission E 32, 4 March 2005; New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[61]New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[62]Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [7.188].