R v JAI[2021] QDCPR 25

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is indicted before this Court on 15 charges. Counts 1 to 3 are allegations of indecent treatment of a boy, the complainant M, each allegedly committed between 15 October 1979 and 14 October 1980 at Monkland. Counts 4 to 13 are 10 allegations of indecent assault on a male. Counts 4 to 10 are alleged to have been committed in respect of the complainant I, variously at South Brisbane and Monkland, within varying time periods, spanning 1 January 1982 to 15 October 1986. Count 11 alleges an offence of indecent assault of the male complainant M, at Veteran between 2 July 1985 and 5 September 1985. Counts 12 and 13 also allege offences of indecent assault of another male complainant A, each at Veteran and between 2 July 1985 and 5 September 1985. Counts 14 and 15 allege offences of unlawful and indecent assault of the complainant I, respectively at the Dawn, between 20 November 1985 and 2 January 1982, and Bell’s Bridge, between 31 May 1996 and 14 February 1999.
2. [2]
   Initially, the application sought orders for the separate trial of the allegations of each respective complainant, pursuant to s 597A of the Criminal Code. However, that application was effectively overtaken by a further application which challenged the admissibility of the evidence upon which the allegations of offending in respect of the now deceased complainant I, are premised. That relates to the admissibility pursuant to s 93B of the Evidence Act 1977 of the representations made by I in an interview recorded by British police, in Wombell in Yorkshire, England on 17 September 2018. The notice provided by the prosecution pursuant to s 590AH(2)(f) and s 590C of the Criminal Code, indicates that the representations were made and recorded as an audio visual recording on 17 September 2018 and seen, heard or perceived by Detective Constable Michelle Jameson (South Yorkshire Police Protecting Vulnerable People Unit, United Kingdom) and Detective Senior Constable Shane Stibbard (Gympie CPIU, Queensland).
3. [3]
   It is the representations so made and recorded by the complainant I which are relied upon to found the respective allegation which is the subject of each of the offences alleged to have been committed against him. And by the joinder of the allegations of each complainant, the prosecution contends for the cross admissibility of the evidence as to all of the allegations, upon the basis of proof of the relationship of the applicant with each complainant and his tendency or propensity to commit such offences and in those ways, in support of each individual allegation. However, it is necessary to bear in mind that such reliance can only be as support for and not to found or substitute for any such allegation.
4. [4]
   In support of that joinder of “a series of offences of a similar character” pursuant to s  567(2) of the Criminal Code and the nexus which also allows for the application of the test discerned from Pfennig v R^[1] and as discussed in R v McNeish^[2] and so as to preclude any order for separation of the trials of the allegations pursuant to s 597A, the prosecution point to the following broadly expressed considerations:

“Broadly speaking, the offending consisted of the Applicant using force to masturbate each complainant with his hand. The Applicant also offended against [M] by placing his mouth over [M’s] penis and offended against [I] by placing his mouth over [I’s] penis, penetrating [I’s] mouth with his penis, and attempting to penetrate [I’s] anus with his penis. The Applicant used force on [A] prior to masturbating him for a period of time.

The Applicant offended against each complainant separately and none of the complainants knew that the others were offended against until the offending came to light around August 2018.”^[3]

5. [5]
   The factual issue sought to be proven by reliance upon the evidence of the allegations made by another complainant, is described as the tendency of the applicant to:

1. “– Commit sexual acts against younger boys, the family of whom he has some form of social relationship with;

1. –Increase the depravity of his conduct, where possible, after initiating the sexual conduct by touching the boys’ penis’;

1. –Use force, if required, to commit these acts and satisfy his own sexual proclivities;

1. –Commit these sexual acts when the boys are on their own, or are otherwise isolated from other people in the house, for the time being;

1. –Target boys who were physically smaller than him.”^[4]

6. [6]
   That tendency is contended to be evidenced by the following features of similarity of circumstances:

1. “–   All the offending occurred when the complainants were by themselves with the Applicant, or the offending occurred at the same locations when other people were present, but the Applicant had the opportunity to isolate the complainants;

1. –The complainants described initially being masturbated by the Applicant;

1. –The Applicant used a degree of force to restrain the complainants prior to masturbating them.  Both [M] and [A] give evidence of being placed in a bear hug prior to the offending. [I] gives evidence that the Applicant always pinned him down; 

1. –The offending commenced with touching the complainants outside their clothing before masturbating them;

1. –With respect to [M] and [I], the offending escalated to mutual masturbation and the Applicant performing fellatio on both of them. The Applicant would masturbate the complainants until they ejaculated and would masturbate himself until he ejaculated;

1. –The offending started when the complainants were in or approaching their teenage years.  Both [M] and [A] give evidence of being of slight build at the time, whereas the offending commenced on [I] when he was 12 years old and [M] stated that [I] was also of slight build at the time;

1. –[I] was forced to fellate the Applicant. [M] gives evidence of uncharged acts when he was forced to fellate the Applicant;

1. –[M] and [I] give evidence that the Applicant applied talcum powder to his genitals and ‘bragged’ about other males he had slept with;

1. –[M] and [I] give evidence that the Applicant tried to offend against them when they had reached adulthood;

1. –[I] and [A] give evidence that the Applicant told them that no one would believe them if they complained;

1. –[M] and [I] give evidence of other, similar uncharged acts that occurred on numerous occasions;

1. –The Applicant made attempts to normalise the conduct for all complainants.”^[5]

It is further noted that to the extent to which the offending against [A] is more limited in comparison to the other complainants, there is evidence that [A] was more forceful in his attempts to repel the applicant.

7. [7]
   In these circumstances the prosecution contention is that the significant probative value of the evidence is to be found in such similarity of description of offending, which, leaving aside any collusion,^[6] is unlikely to be false and sufficient to overcome any prejudicial effect as to any misuse of the evidence in the context of the usual directions by a trial judge.^[7]
8. [8]
   The application for severance of the trials in respect of each complainant was, as has been noted, largely overtaken by the application as to the admissibility of evidence pursuant to s 93B of the Evidence Act and was not pressed at all in respect of the prosecution reliance upon the principles to be drawn from Pfennig, McNeish and Phillips v The Queen.^[8]  Rather, there was reference to the exercise of broad discretion in the application of s 597A, such as was recognised in R v Cranston,^[9] in terms that:

“The courts may find that an appropriately liberal exercise of discretion to sever is called for in doubtful cases. Certainly it will be necessary to be cautious in concluding that multiple counts do truly involve a series of the same or similar character. This approach will at least ensure that time is not wasted in trying cases involving multiple counts which appeal courts, taking a different view from the trial judge, consider do not satisfy the test and were improperly joined. Of course, if the counts do satisfy the test and there is no circumstance calling for the exercise of the discretion against joinder, then there can be clear advantages in proceeding with a number of counts together. It will be necessary to be vigilant to ensure that even properly joined cases are severed when the level of prejudice to the accused, involved in trying them together, intrudes sufficiently strongly.”

Such prejudice was contended to flow from understanding that the allegations span a period of 20 years, occurring some 21 to 24 years ago and the contention is that such a prejudice, arises for three key reasons:

3. “●
   the allegations cannot be adequately tested or met after the passage of so many years.  The difficulties and disadvantages are of thrice the severity with the joinder of complainants; and

3. ●
   both the complainant [I] and the complainant [M] assert many uncharged acts over time; and

3. ●
   the s 93B account of the complainant [I] is untested and untestable by reason of his death.”^[10]

9. [9]
   However, it remained unclear as to how any prejudice, in terms of impermissible use of any such evidence,^[11]arose from these considerations or what may be determined as the cross-admissibility of any such evidence, as a foundation for maintaining the appropriate joinder of the allegations and the accompanying directions as to the use of such evidence. Ultimately, the focus became the application of s 93B, because, as it was commonly understood, there is no basis for the prosecution of the allegations in respect of the complainant I, unless the representations made by him and recorded on 17 September 2018, are admissible pursuant to s 93B(2)(b).  Accordingly and if the determination is against such admissibility, it was expressly conceded for the applicant that there remained no objection to the joinder of the remaining allegations relating to M and A.^[12]

The contentions

10. [10]
    As to the reliance upon s 93B(2)(b) and in the first instance, for the applicant, it was pointed out and ultimately accepted by the respondent, that because counts 1 to 3 do not satisfy the definition of “prescribed criminal proceeding” in s 93B(5),^[13] there can, in respect of those counts, be no question of cross-admissibility of any of the representations of the complainant I which might be otherwise admissible pursuant to s 93B.  Further, the significance of this consideration is in understanding that in cases involving allegations of sexual misconduct, it is recognised that, in the absence of such cross-admissibility, the potential for impermissible prejudice from inappropriate reliance on inadmissible evidence is usually such as to warrant an order for severance pursuant to s 597A of the Criminal Code.^[14]  This might be a substantial step towards severance of all the allegations relating to the complainant M, including count 11.
11. [11]
    The second contention for the applicant is that the recording made on 17 September 2018 does not contain any representation within the meaning of s 93B(2)(b).  But:

“Rather it was a presentation of accusations made for his own reasons and purposes in a way and at a time of his choosing.  That it was a recording made in an interview room in Wombell Police Station does not constitute circumstances making it highly probable it is reliable.  In that Police station does not constitute circumstances making it highly probable it is reliable.  In that regard it can be contrasted with representations of the kind considered in R v Walton (1989) 166 CLR 283.”^[15]

In further support of that contention, reference was also made to R v Robertson & Ors^[16] and R v McGrane.^[17]

12. [12]
    In the first instance and ultimately notwithstanding reference to other authority relating to a similar provision to s 93B(2)(b), as found in the uniform evidence legislation, and as particularly noted in s 65(2)(c) of the Evidence Act 1995 (Cth), for the respondent, particular reliance is placed upon the admission of another interview with the complainant I and recorded in similar circumstances but relied upon in respect of an indictment charging another man with offences of indecent treatment and indecent assault, respectively of the complainants I and M and alleged to have occurred between March 1976 and November 1994.
13. [13]
    In that matter, the application for the exclusion of that interview proceeded upon the express concession for the applicant that it was admissible pursuant to s 93B(2)(b) and unsuccessfully in respect of the application of discretion to exclude it pursuant to s 98 of the Evidence Act. However, the respondent seeks to expressly engage and align with the following observations as to that concession in R v [Redacted] [2020] QDCPR 52, at [6] – [7]:

3. “[6]
   … In my respectful view, that concession was properly made. However, given the importance of the issue that the matter was canvassed in some detail on the first hearing date, it is worth noting the following in that respect^[18]:

1. (a)
   First, there is no evidence of inconsistent statements or conduct by [I], before or after the Interview, which might impugn the reliability of the statements in the Interview (and this is so notwithstanding on 2 April I specifically raised the relevance of such evidence, if it existed);
2. (b)
   Second, the Interview appears to have been made by [I] because of his impending death from motor neuron disease. No other explanation for his decision to make the statement is evident neither from the depositions of other witnesses put before me nor the Interview itself. There is no suggestion that any further investigations are likely to lead to a different conclusion (again despite the issue being raised with me on the last occasion);
3. (c)
   Third, the statement was taken by apparently experienced English police officers in circumstances of evident formality;
4. (d)
   Fourth, [I’s] care attendant did frequently clarify what she thought [I] had said during the Interview. Based on the text of the transcript, one can understand the reservations noted by the defendant’s counsel as to the carer’s involvement. However the evidence is the audio visual recording comprised in the Interview, not the transcript. Having watched the whole of the Interview it was plain in my opinion that [I] affirmed the clarifications by his carer clearly when they were made. Further, in my opinion, more of his speech was intelligible than is shown in the transcript tendered on the application. I am satisfied that the evidence is his own, whether intelligibly stated by him or the result of his adoption of the restatement of his statements by his carer; and
5. (e)
   Fifth, there is no basis on the fact of the Interview to think that [I] was affected by any kind of incapacity or medication which affected his cognitive processes, despite his illness. None was suggested.

3. [7]
   For at least those reasons, though the Interview lacked the circumstances of spontaneity and contemporaneity which frequently mark such statements as inherently reliable, it is my view that the defendant’s counsel correctly conceded that the Interview met the requirements of s. 93B(2)(b).”

14. [14]
    It may also be noted that the circumstances in which the interview there under consideration, occurred, and unavailability of the witness, were noted as follows:

3. “[4]
   [I] has lived in England for some years. He has motor neuron disease. On 23 October 2018, [I] participated in a videotaped interview with two English police officers (the Interview). It is not in dispute that he is too unwell to attend the trial or otherwise to participate in cross examination and that that situation will not change….” ^[19]

15. [15]
    This application proceeds in respect of a different and separately conducted interview with the complainant I, but in similar circumstances, on 17 September 2018 and in the further circumstances that, on 20 May 2020, I passed away.

Discussion

16. [16]
    In consideration of the issue which was put directly and squarely in contest in this matter, it is desirable to first set out the terms of s 93B:

“93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

1. (1)
   This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

1. (a)
   made a representation about the asserted fact; and
2. (b)
   is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

2. (2)
   The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

1. (a)
   made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or
2. (b)
   made in circumstances making it highly probable the representation is reliable; or
3. (c)
   at the time it was made, against the interests of the person who made it.

3. (3)
   If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding—

1. (a)
   evidence of the representation given by another person who saw, heard or otherwise perceived the representation;
2. (b)
   evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.

4. (4)
   To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.
5. (5)
   In this section—

prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.

representation includes—

1. (a)
   an express or implied representation, whether oral or written; and
2. (b)
   a representation to be inferred from conduct; and
3. (c)
   a representation not intended by the person making it to be communicated to or seen by another person; and
4. (d)
   a representation that for any reason is not communicated.”

17. [17]
    It is necessary to note that s 93B is a provision which only provides exception to the rule against hearsay. The basis of admission or relevance of the evidence is assumed and must be otherwise established.^[20] Here, that is contended on the basis of seeking admission of evidence tending to establish the commission of each of the offences allegedly committed in respect of the complainant I.
18. [18]
    Further and in Sio v R, and in the context of consideration of the application of s 65(2)(d) of the Evidence Act 1995 (NSW), it was observed that:

“It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross‑examine the maker of the statement with a view to undermining the inculpatory assertion.

….

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.” ^[21]

19. [19]
    In this instance, such an approach requires close attention to the application of s 93B(2)(b) to the express, oral and recorded representations made on 17 September 2018, directly in respect of asserted offending by the applicant between dates in 1982 and 1986, 1985 and 1992 and 1996 and 1999. And therefore when the complainant was aged between 12 and 29 years and the applicant aged between 21 and 38 years. It is also necessary to note that each allegation is of sexual assault and accordingly that in addition to proof of the constituent acts, proof of absence of consent is required. That is, in such context, close attention is necessary to the requirements that “the representation was – made in circumstances making it highly probable the representation is reliable”.^[22]
20. [20]
    The prosecution submission as to satisfaction of those requirements is, ultimately, as follows:

    1. (a)
       The statement was made by I due to his impending death from motor neurone disease. He stated that what the applicant had done to him was ‘not appropriate’ and that he was ‘not interested in revenge, just want justice’. In the respondent’s submission, it is quite powerful in terms of the circumstances of the making of this statement that, when asked how he felt after coming forward to the police, I  stated ‘I feel like a weight has been lifted off my shoulders’;
    2. (b)
       The statement by I included some comments adverse to himself. For example, when he disclosed that he was over the age of consent for the last incident, he stated, ‘did I contribute to it because I enjoyed parts of it, some of it?’ This concession reflects the high level of reliability of the circumstances in which the representation was made;
    3. (c)
       The statement was taken by apparently experienced English police officers in formal circumstances. The interview began with the police officers and other people present in the interview room introducing themselves and the police explained the procedure of the interview to I. I assured police that he would tell the truth and police noted that I’s speech was impaired due to the his mental condition;
    4. (d)
       I’s assistant, H, was employed as I’s personal assistant for 18 months prior to the interview with police. Her role was to be a communication aid for I. Due to the period of time she had worked with him, she could understand what he was saying;
    5. (e)
       H frequently clarified what she thought he said at varying stages throughout the interview;
    6. (f)
       GM was also present for the interview as a registered intermediary. She undertook an initial communication assessment with I before the commencement of the interview;
    7. (g)
       There is nothing to suggest that I was impacted or affected by any kind of mental incapacity or medication at the time of the interview;
    8. (h)
       There is no evidence of inconsistent statements or conduct by I, before or after the interview, which may impinge the reliability of his statement.
21. [21]
    Although a compendious approach to the representations in issue may be immediately discerned, that may also be seen as somewhat responsive to the defence approach, which was also aimed at the circumstances of the recorded interview in an overall sense.  This may be put aside, in a situation where it is precisely the circumstances which relate to each relevant representation which is made in the course of a single interview.^[23] However, what may be noted is some distinct focus upon both the intelligibility of the recording and contentions as to the reliability of the representations due to the acceptability of the asserted truthfulness of them. 
22. [22]
    In neither sense may the application of s 93B(2)(b) be appropriately premised.  So much was made clear in R v Robertson & Ors, in the expressed preference for the approach derived from R v Ambrosoli,^[24] that:

“… the test for any given representation was not whether it was reliable as to the matters asserted in it, but whether the circumstances in which it was made indicated a probability that it was.”

23. [23]
    Whilst in consideration of the decision in Robertson, the complicated prior history of the issue as to the application of s 93B, in that case through application, trial, appeal and re-trial with further applications, should not be overlooked, it should also be noted that whilst the ruling of the primary judge had also embraced s 93B(2)(b), each of the appeals were determined having regard only to the applicability of s 93B(2)(a).^[25]  The later decision, in Robertson, involved the rejection of an argument that too narrow a construction had been taken in reliance upon the decision in Ambrosoli,^[26] and that in the application of the test in s 93(2)(a), being that the representation was made “in circumstances making it unlikely the representation is fabrication”:

“The better view (it was contended) was that ‘circumstances’ should be read as including all circumstances relevant to the likelihood the representation was not a fabrication or relevant to a high probability that the representation was reliable.”^[27]

24. [24]
    As to the scope of the “circumstances” to which s 93B(2)(a) is addressed,^[28] the following may be noted from the decision in Robertson:^[29]

“[60]  There is no doubt that the use of a term as general as “circumstances” makes the provision capable of being given a broader or narrower compass. But I would not depart from the Ambrosoli approach, as implicitly accepted in Lester, for two reasons. Firstly, and obviously, one would not lightly    disagree with a decision of another intermediate appellate court, let alone overturn a decision of this Court. There is, with respect, nothing in the reasoning in Ambrosoli which would make me think that the construction given to the cognate provision must be wrong. Secondly, and unusually, some assistance can be gained as to the meaning of the provision from the Explanatory Notes for the Criminal Law Amendment Bill 2000, part of which concerned the amendment of the Evidence Act to introduce the s 93B exceptions to the hearsay rule. (I do not think that the Attorney-General’s second reading speech points unequivocally in either direction; the reference to “factors” can be read as an allusion to the circumstances of the representation’s making.)

The Explanatory Notes contain this passage:

The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was –

• made when or shortly after the asserted fact happened and in circumstances making it unlikely that it is a fabrication (for example, Ratten v The Queen [1972] AC 378); or
• made in circumstances making it highly probable that it is reliable (for example, Walton v The Queen (1989) 166 CLR 283); or
• against the interests of the person who made it.

[61] The significance of that passage, for present purposes, lies in the references to Ratten and Walton. In Ratten, Lord Wilberforce, delivering the Privy Council’s reasons, reviewed a number of cases concerning spontaneous statements by victims and onlookers before saying,

“These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”

[62] The reference in the Explanatory Notes to Walton is likely to concern Mason CJ’s consideration of whether evidence that a child referred to the man on the other end of the telephone as “Daddy”, although hearsay, was nonetheless admissible as an implied assertion of the identity of the caller. His Honour observed,

“…especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay.”

The extreme unlikelihood that the child would have concocted what he said was a factor favouring admission of his statement. Mason CJ noted that in R v Andrews, the House of Lords, adopting the Privy Council’s view in Ratten, had emphasised the importance of the spontaneity of an assertion rather than its contemporaneity. Both of those decisions accorded with his own view.

[63] The emphasis in both Ratten and Walton is very plainly on the immediate circumstances in which a representation is made, not some broader examination of unreliability. The use of those cases as illustrative of the proposed effect of the subsections strongly suggests a legislative intent that the narrower view - that is, that the focus regarding reliability is on the circumstances of the representation’s making, not on the representation itself - is to be preferred.” (citations omitted)

25. [25]
    To similar effect, are the following observations as to the similar test set out in s 65(2)(d)(ii) of the Evidence Act 1995 (NSW), in the single joint judgment of the High Court, in Sio v R:^[30]

“[69] In R v Ambrosoli, Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that:

“evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby.”

[70] That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.

[71] 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.

[72] Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v R, ss 65(2)(c), (d) and 85 provide “[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence”. It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.” (citations omitted)

26. [26]
    These observations are also clearly applicable to requirement in s 93B(2)(b) for focus upon the circumstances in which a representation was made. But it should also be recognised that the further aspect of the hurdle confronting the application of s 93B(2)(b), is the need for positive satisfaction as to the more stringent criterion that such circumstances make it “highly probable” that the representation is reliable.  In the present circumstances, the submission of the applicant aptly seeks to characterise the representations of the complainant I as:

“… a presentation of accusations made for his own reasons and purposes in a way and at a time of his choosing.  That it was a recording made in a police station does not constitute circumstances such as to engage 93B.”^[31]

And it is correctly contended that such circumstances stand “a long way from” or in distinct contrast, to those contemplated in Sio v R, at [64]:

“… one category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence as those circumstances that ‘are such that are sincere and accurate statement would naturally be uttered, and no plan of falsification be formed’; in other words, circumstances that of themselves tend to negative motive and opportunity of the declarant to lie.” (citations omitted)

Immediately before that passage in Sio, is the following:

“Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable – and the asserted fact likely to be true – notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that ‘the dangers which the rule seeks to prevent are not present or are negligible in the circumstances’. In such a case, ‘there is no basis for a strict application of the rule.’”^[32] (citations omitted)

The omitted citation for each sentence in the passage, is also to the judgment of Mason CJ in Walton v R,^[33] and similarly to the observations of Holmes J in Robertson, understandable in acknowledgement of the statutory provisions being in recognition and implementation of that minority expression of view in Walton,^[34] as follows:

“The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay. It must be borne in mind that the dangers against which the rule is directed are often very considerable, as evidenced by the need for the rule itself. But especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay.

In the present case the extreme unlikelihood of concoction on the part of the child would have been a factor favouring admission of the statements. The lack of opportunity for cross-examination of the child as to his perception or understanding would have been a factor pointing in the opposite direction. Often in the case of an implied assertion the first factor will be of sufficient weight to justify the trial judge in admitting the evidence as reliable for the purposes of evaluation by the jury.

To this extent it can be said that the hearsay rule is less rigorous in its application to implied assertions than it is in the case of express assertions. It is for the trial judge to decide whether or not a particular implied assertion is of a kind to which the rationale underlying the hearsay rule would be relevant. If the judge determines that an assertion is express or is otherwise one which it would be dangerous to admit as hearsay, then the ordinary rules of hearsay and the various exceptions to the general exclusionary rule will then be applied. But where the assertion is one made by implication only, it is necessary for the judge to balance the competing considerations in order to determine admissibility, since the dangers associated with hearsay evidence will not all necessarily be present. In very rare cases it may be that such an approach will be appropriate also for an express assertion, for the same reasons, but it will be uncommon for a situation to arise in which an express assertion is made which does not come within a recognized exception to the hearsay rule and yet which despite being tendered as proof of what it asserts would not offend the basis of that rule. In particular, an express assertion will often lend itself more readily to a suspicion of concoction.

The House of Lords has approved an approach which places emphasis upon the spontaneity of an assertion (as evidence that it was not concocted) rather than upon the contemporaneity of that assertion to the occurrence to which it relates: Reg. v. Andrews, adopting the view of the Privy Council in Ratten v. The Queen. These cases relate to the doctrine of res gestae, but in truth the extension of the scope of that rule necessarily affects the scope and operation of the hearsay rule. The decisions therefore accord with the views which I have expressed.”^[35] (citations omitted)

27. [27]
    The difficulty confronting the application of such views is exemplified by the divergent views expressed in the joint judgment, which proceeded essentially upon the following basis:

“An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten; Reg. v. Andrews: see also Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v. Vocisano. But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person's state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.”^[36] (citations omitted)

And dealt with the evidence as to the representation of the boy, as follows:

“On the other hand, the words uttered by the boy on the telephone were no more than hearsay and were therefore, strictly speaking, inadmissible. Whilst it is possible that in some circumstances a greeting may constitute circumstantial evidence from which the identity of the person greeted can be inferred, that is not necessarily the case. In this case, particularly as the child's greeting and subsequent conversation followed immediately upon the assertion by his mother that the person to whom he was about to speak was "daddy", the value, if any, of what the child said lay in the truth of the implied assertion that the person to whom he was speaking was in fact "daddy": cf. Teper; Reg. v. Gibson. However, it added little if anything to what was said by the deceased and the jury were adequately warned against using it to identify the caller. No substantial miscarriage of justice can have arisen from its admission.”^[37]

28. [28]
    Otherwise and in respect of the references to prospective concoction, as drawn from the decision in Ratten, albeit in express reference to the development of an approach emphasising spontaneity, rather than contemporaneity of assertion to occurrence, is to found as follows:

“The trend of the English cases was perhaps recognized, although not specifically endorsed, by Dixon J. in Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle. After comparing the English and American approaches, his Honour went on to say:

"[Tlhough the general tendency in England is to restrict the principle to the reception of statements forming an integral part of the transaction considered as a whole and to reject the doctrine that spontaneous declarations are admissible as an exceptional medium of proof, yet English decisions do show some reliance on the greater trustworthiness of statements made at once and without reflection in support of their admissibility."

Since then the Judicial Committee in Ratten has emphatically rejected the proposition that, in order to be admissible, the statements must form an integral part of the transaction. Lord Wilberforce, delivering the advice of the Judicial Committee said:

"The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognized and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction... As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it."

Later, after reviewing the relevant authorities, including Thompson v. Trevanion, Brown v. The King, Adelaide Chemical and People v. De Simone, Lord Wilberforce observed:

"These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

This statement of principle, with which I entirely agree, accords with the American approach as Dixon J. described it in Adelaide Chemical.”^[38] (citations omitted)

29. [29]
    It may be noted that, in the present case, an explanation proffered for the order of the applications was that the earlier application:

“… did not concern the admissibility of a recording by [I] said to be admissible under s 93B of the Evidence Act 1977. Any such application must traverse issues of collusion. Code s. 597A (1 AA) and s. 132 A of the Evidence Act are relevant to the determination of the severance application in that the Court determining the matter is not to have regard to collusion. The Crown has now provided an outline of submissions in the severance application which introduces collusion as a consideration in one regard. Advancing the following submission prior to resolution of the severance application is no longer a sensitivity.”^[39]

Although, in the circumstances this remained a largely unelaborated contention, it is traceable to the following submissions of the respondent in response to the application for severance of the joined allegations:

“The Respondent submits that the forensic disadvantage to the Applicant of not being able to challenge this evidence is significantly ameliorated by the availability of [M] for cross-examination. The Applicant will be able to explore the prospect of collusion or fabrication, as well as the possibility that [M] told [I] the details of his allegations or vice versa, such that one of the brothers is adopting the other’s story without any deliberate collusion.”^[40]

That, in turn, may be, at least, traceable to the references by I, in the recorded interview, to his knowledge of the nature of the other allegations of M and A, which are joined on the indictment.^[41]

30. [30]
    However and for present purposes what should be noted is that the effect of each of s 597A(1AA) of the Criminal Code and s 132A of the Evidence Act 1977 (Qld), is to exclude the reasoning in Hoch  v The Queen^[42] as to considerations in respect of the possibility of allegations being a product of “collusion or suggestion”, in the consideration of objection to joinder of them. Whilst concoction might be an end result of collusion or influence in the nature of suggestion, the terms are not necessarily synonymous and as has been noted for the purpose of the application of ss 93B(2)(a) and (b), it is the circumstances in which the representation is made, which may not exclude reference to the presence or absence of any contextual prospect of collusion or suggestion, which must be the focus. And as explained in Sio, such as to inherently demonstrate that the dangers to which the rule against hearsay is directed “are not present or negligible”. As further demonstrated by the references to Walton and Ratten, some such danger is reflected in considerations as to the “possibility of concoction or distortion to the advantage of the maker or the disadvantage of the defendant”, and particularly where there may be effective inability to test the motivations and influences which accompanied the making of the representation.^[43] Further and in the application of s 93B(2)(b), in particular, there remains the need to apply the statutory test in terms of positive satisfaction that the representation was “made in circumstances making it highly probable the representation is reliable”, in contrast to the requirement in s 93B(2)(a), that it be made “in circumstances making it unlikely the representation is a fabrication”.
31. [31]
    Moreover and as is noted in Cross on Evidence, at [33310], there is regarded to be,  what is there described as an “anomalous exception” to the hearsay rule at common law, in respect of dying declarations. It is further noted that “there is much to be said in favour of strict conditions of admissibility, which primarily restrict application of that exception to:

“evidence of the cause of death at a trial for that person’s murder or manslaughter provided the declarant was under a settled hopeless expectation of death when the statement was made and provided the declarant would have been a competent witness if called to give evidence at that time.”^[44]

Whilst and as is also noted,^[45] the occasion for revision of this exception was in Mills v R,^[46] reserved for another day, that was in the context of recognition, as demonstrated by reference to R v Osman,^[47] of an underlying rationale “that impending death acted as a substitute for the oath”, whereas:

1. (a)
   the modern approach to the law is different, “with emphasis on the probative value of the evidence”, as illustrated by reference to the decisions in R v Ratten^[48] and R v Andrews,^[49] “and notably by the approach in the context of the so-called res gestae rule that the focus should be on the probative value of the statement rather than on the question whether it falls within an artificial and rigid category such as being part of a transaction”; and
2. (b)
   where, it was otherwise determined that the deceased’s words were admissible under “the so-called res gestae rule”, as being made in conditions of “approximate contemporaneity” and so that the “inference was irresistible that the possibility of concoction or distortion could be disregarded”.

32. [32]
    In understanding the resolution in Robertson as to the narrower view of the relevant circumstances in the application of a modern statutory exception to the hearsay rule, it is of importance to note the observations as to the significance of the references also to the decision of the Privy Council in Ratten and particularly to the High Court’s decision in Walton, the latter being expressly referable to the introduction of s 93B(2)(b) and, as noted, as likely reference to the consideration there of the implied assertion of the identity of a telephone caller, from a child’s reference or representation: “daddy”. And the observations focussing upon “the immediate circumstances in which a representation is made” as noted in the example taken from Walton, so as to understand a conclusion that “the extreme unlikelihood that the child would have concocted what he said was a factor favouring admission of the statement”. There is also the further contextual notation that in R v Andrews “the House of Lords, adopting the Privy Council’s view in Ratten, had emphasised the importance of the spontaneity of an assertion rather than its contemporaneity.”
33. [33]
    Not only is there any absence of any sense of contemporaneity, let alone spontaneity, in the representations sought to be admitted here, neither Robertson nor any earlier case to which reference was made, involved any question as to the application of s 93B to such representations of a testimonial kind. This includes the earlier decisions of the Court of Appeal in R v McGrane^[50] and R v Lester.^[51]
34. [34]
    Although the same cannot be said of the decision in R v Dendle,^[52] that matter is not only complicated by a particular focus upon considerations relating to an exercise of discretionary exclusion pursuant to s 98 or s 130 of the Evidence Act 1977 (Qld) and what is discussed as to an alternative basis of admissibility (particularly to the extent that admission was sought in respect of offences other than those within the meaning of “prescribed criminal proceedings” in s 93B) pursuant to s 111 of the Justices Act 1889 (Qld). Further and notwithstanding that the reasons do refer to a submission as to the interaction between s 93A and s 93B,^[53] such interaction of the two separate provisions, each having the effect of making exception to the hearsay rule, is not made expressly clear, nor is there any appearance of any particular issue having been raised, by the appellant, about any such interaction. The apparent difficulty lies in understanding that the respective exceptions proceed upon mutually exclusive bases; in s 93A(1)(b) it is necessary that the maker of the statement^[54] is available to give evidence in the proceeding and in s 93B, the maker of the representation must be unavailable to give evidence.^[55]Moreover, s 93A is, also in contrast to s 93B, applicable to particularly identified categories of witness, being “a child or a person with an impairment of the mind at the time of making the statement” and necessitates no consideration of the circumstance of the making of the statement, in terms of facilitation of reliability or otherwise.
35. [35]
    Moreover, the further non-decisive nature of the treatment of the issues raised in Dendle, at least as far as the application of s 93B(2)(b) is concerned, may be gleaned from the following conclusion:

“[28]  In my view, the learned judge was correct in determining that it was plainly a matter for the jury as to assess the reliability of the complainant’s evidence and that it was to be considered in the context in which it was made. As Counsel for the Crown noted, s 93B is not aimed at truthfulness but is instead concerned with the objective circumstances in which it was made. That principle was clearly endorsed in both R v McGrane and R v Sanchez. In the present case, the statement was made very soon after the alleged offending as it was made on the same morning of the incident, and probably within six or seven hours given the offences were alleged to have occurred over a period of hours ending around 3.00 am. The appellant has identified no error in the judge’s exercise of discretion not to exclude the evidence of the s 93A statement being admitted pursuant to s 93B of the Evidence Act.”

36. [36]
    Accordingly, the respondent’s contentions as to the application of s 93B draws no sustenance from any analogy to the processes adopted in many recordings which regularly attract the application of s 93A.^[56] And there is in the application of the principles derived from the decisions in Robertson and Sio, no warrant for consideration of what may appear for or against the actual reliability or acceptability of the representations of I, including any contentions as to the potential support for any such representations as might be derived from tendency or propensity reasoning.
37. [37]
    For the respondent, reference was also made to Clarke, Archie (a Pseudonym) v The Queen; Director of Public Prosecutions [DPP] v Stanley, Stephen (a Pseudonym) and Wells, Nicholas (a Pseudonym)^[57]. That was only in respect of the following observations as to the application of s 65(2)(c) of the Evidence Act 2008 (Vic), as are underlined in the following paragraph of the judgment:

“[80] As previously mentioned, none of the accused in these interlocutory appeals challenged the trial judge’s ruling as to the admissibility of the impugned hearsay evidence under s 65(2)(c). In reaching her conclusion that s 65(2)(c) of the Act was satisfied in respect of each previous representation by CW, the trial judge took into account the evidence of ZG, which largely supported the previous representations made by CW. Contrary to the submission made by all parties to the trial judge, ZG’s evidence did not bear upon the circumstances in which CW made his police statements. To take ZG’s evidence into account was to evaluate the reliability of each of CW’s previous representations in a general way. Section s 65(2)(c) requires the reliability of each previous representation to be evaluated having regard only to the circumstances in which each previous representation was made. Although the authorities permit a court to have regard to other previous representations, or other matters to the extent that they bear upon the circumstances in which the impugned previous representation was made,^[58] they do not permit a court to take into account other evidence which tends only to address the asserted fact.^[59] When the Court raised this matter with the parties, the Director conceded that it was not open to the trial judge to take account of ZG’s evidence in applying s 65(2)(c).^[60] That concession was an appropriate one. It was foreshadowed that the trial judge will be asked to revisit her ruling under s 65(2)(c) in the light of that concession.”

38. [38]
    Notably, those observations were made in the direct context of otherwise noting this to be another instance where none of the accused had challenged the application of s 65(2)(c) to the evidence, and with express reference to the High Court’s decision in Sio and also an earlier Victorian decision in Azizi v R^[61], the later referring to the Abrosoli decision.
39. [39]
    Otherwise it is to be noted that the decision of the Victorian Court of Appeal was concerned with determining an interlocutory appeal relating to the determinations of the primary judge of applications for discretionary exclusion of some 15 representations drawn from police statements given by a witness described as complainant in relation to charges of fake imprisonment, extortion, causing injury intentionally and causing injury recklessly, against four defendant, described as charged “on the basis of joint enterprise” and in respect of separate trial for some defendants. It is noted that it was agreed that the complainant was unavailable in circumstances where:

1. (a)
   he, as a Chinese national, had returned to Hong Kong, indicating that he did not wish to give evidence at committal proceedings; but
2. (b)
   after his arrest in Hong Kong on drug matters, he indicated preparedness to do so and then participated in a “Basha inquiry”^[62], by video link from Hong Kong and was cross-examining by counsel for some but not all defendants, over a number of days, before declining to give further evidence.^[63]

However, there was also notation of the error of the primary judge in taking into account the evidence of ZG so as “to evaluate the reliability of each of CW’s previous representations in a general way”, rather than by “having regard only to the circumstances in which each previous representation was made”, with further notation of the anticipated revisitation of the ruling at the primary level.

Conclusion

40. [40]
    Accordingly and in the appropriate focus upon the circumstances of the making of the representations of I in the interview conducted on 17 September 2018, and in adaption of the words of the High Court in Sio v The Queen,^[64] it is not open to be positively satisfied that those circumstances are such as to make it highly probable that any such representation is reliable. Those circumstances are effectively no different to those relating to the giving of a statement to investigative police for the purposes of potential prosecution of and testing of allegations. However, here the representations remain untested and untestable. Hence the importance of the notation by the High Court of need for compliance with the requirements for admissibility and here, there is nothing to detract from the dangers to which the rule against hearsay is directed and in particular, such as to allow for disregard of any possibility of concoction or, at least, distortion to the advantage of the maker or disadvantage of the applicant, in the representations made in contemplation of impending death and so many years after the events which are the subject of the them, and as the central premise of allegations requiring proof of absence of consent as well as occurrence of the alleged acts.
41. [41]
    Therefore it is appropriate to allow the later application, filed 7 September 2020 and to order that the representations of the complainant I, as made in the interview conducted on 17 September 2018, are not admissible pursuant to s 93B(2)(b) of the Evidence Act 1977.
42. [42]
    Otherwise and upon the understanding that there will remain no basis for the continuation of the counts alleging offences against the complainant I, in the indictment before the Court, there is no other order appropriate in respect of the joinder of the remaining counts relating to the complainants M and A. Therefore the application filed on 4 September 2020, is dismissed.