Citation: R v Stevenson [2019] NSWDC 232
Court: District Court of New South Wales
Date: 8 May 2019
Judge(s): Haesler SC DCJ
Background
The accused faced 13 counts of indecent assault or procuring an act of indecent assault, alleged to have occurred between June 1970 and September 1981 against eight young male complainants. The trial was listed to commence at Wollongong District Court on 13 May 2019 with a three-week estimate.
One complainant, the subject of count 3, had since died and was therefore an unavailable witness within the meaning of the Evidence Act 1995. Before trial, the Crown gave notice of its intention to tender two written statements made by that complainant, seeking to use them as evidence of count 3 and as part of proposed tendency and coincidence evidence.
The defence objected to the admissibility of the statements. The pre-trial voir dire proceeded on the question of whether those statements satisfied the conditions for admission under the hearsay exception in section 65(2)(c) of the Evidence Act 1995.
Legal Issues
- Whether the two written statements from the deceased complainant were admissible under the hearsay exception in section 65(2)(c) of the Evidence Act 1995, which requires that a representation be made in circumstances that make it "highly probable" that the representation is reliable.
- Whether that reliability threshold could be met given the 44-year gap between the alleged incident (1971) and the making of the first statement (2015).
- Whether statements inadmissible for the primary purpose of proving count 3 could nonetheless be admitted for the secondary purpose of tendency and coincidence evidence.
Decision
Haesler SC DCJ began by setting out the applicable framework. The hearsay rule generally excludes prior representations from evidence. Section 65(2)(c) of the Evidence Act 1995 provides an exception in criminal proceedings where the maker of the representation is unavailable, but only if the representation was made in circumstances that make it "highly probable" that it is reliable. Consistent with the High Court's direction in Sio v The Queen (2016) 259 CLR 47, the inquiry focuses on the particular circumstances in which the specific representation was made.
The Crown pointed to several factors favouring admission: the complainant had signed a jurat (a formal declaration made to police attesting to the truth of a statement, intended to impress on the maker the seriousness of making a false statement), there was supporting authority from other jurisdictions treating the jurat as a relevant circumstance, and expert evidence from Professor Dianna Kenny explained why delays in disclosure do not of themselves undermine reliability. The court accepted Professor Kenny's expertise on why children delay disclosure, but noted she offered no opinion on the reliability of memory over decades or how memories are formed over time.
The court identified several countervailing concerns that proved decisive. The representations were made 44 years after the alleged incident. There was no forensic way to test or measure the accuracy of the statements. Critically, the complainant had thought about the incident repeatedly between 1984 and 2014, and it could not be discerned whether he was remembering what occurred in 1971 or what he had recalled in 1984. That distinction, the court found, was of critical importance and could not be resolved.
On the secondary argument that the statements could be admitted as tendency and coincidence evidence even if inadmissible to prove count 3, the court rejected this approach. Where evidence is inadmissible for one purpose under section 65, it cannot be rendered admissible by reformulating it as evidence for a different purpose.
Orders Made
- The statements contained in voir dire exhibit A are not to be admitted in evidence at trial.
Key Takeaways
- Under section 65(2)(c) of the Evidence Act 1995, a prior representation by an unavailable witness is admissible in criminal proceedings only where the circumstances of its making make it "highly probable" that it is reliable. This is a demanding standard.
- A 44-year delay between the alleged events and the making of the relevant statements was a significant factor weighing against the "highly probable" reliability threshold being met.
- Where a complainant had been mentally revisiting an incident over several decades before committing it to writing, the court found it impossible to determine whether the resulting statement reflected memory of the original event or of a later recollection of that event. This uncertainty was fatal to admissibility.
- Expert evidence explaining the psychology of delayed disclosure in child sexual abuse matters does not, without more, establish that the content of a long-delayed representation is reliable. The District Court noted Professor Kenny's expertise did not extend to the reliability of memory over decades.
- A representation that fails the admissibility test under section 65 for its primary evidentiary purpose cannot be rescued by tendering it instead as tendency or coincidence evidence.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 59, 62, 65(1), 65(2)(c), 67
Cases:
- Bauer v The Queen [2018] HCA 40
- Sio v The Queen (2016) 259 CLR 47
- Harris v R [2005] NSWCCA 432
- R v Carberry [2018] ACTSC 83
- R v Smiler (No 1) [2012] NTSC 28