R v BRN [No 3][2023] QDCPR 57

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant, who for consistency I will identify by the pseudonym BRN,^[1] is charged on indictment with a total of 20 alleged offences against two complainants. The charges allege the sexual abuse of two brothers at times between early 1976 and late 1994. The defendant is the older cousin of the two complainants. He was not charged with the alleged offences until March 2019. One of the complainants, NSG, suffered from an unspecified motor neurone disease and is now deceased. Before he died, in October 2018, NSG made statements in an interview with a police officer in the United Kingdom alleging the sexual offences charged in the indictment. The prosecution intends to rely upon evidence of what NSG said in that interview as representations said to be admissible pursuant to section 93B of the Evidence Act 1977 (Qld). In May 2020, Porter KC DCJ refused the defendant’s application for the discretionary exclusion of this evidence.^[2] On that occasion the defendant expressly conceded that the evidence satisfied the statutory criteria set by section 93B and was prima facie admissible. The defendant, at that time, placed reliance upon sections 98 and 130 of the Evidence Act to submit that statements of NSG should be rejected or excluded. This argument was not accepted by Judge Porter who dismissed the defendant’s application.
2. [2]
   NSG also complained of offences by another man. Those allegations were made in an interview with police in the United Kingdom a few weeks before the interview with which this application is concerned. That alleged offender, JAI, was charged and indicted. On 29 April 2021 Judge Long SC ruled that NSG’s statements concerning JAI were not admissible pursuant to section 93B(2)(b) of the Evidence Act.^[3] In that case, JAI did not concede that NSG’s statements were prima facie admissible. The circumstances of NSG’s interviews with police in relation to JAI and the present defendant, separated as they were by only a few weeks, are not materially different.^[4]
3. [3]
   The defendant now applies again for an order which would have the effect of excluding from his trial evidence of NSG’s representations contained in the police interview. On this occasion, however, the challenge is to the admissibility of the evidence under section 93B, rather than an appeal to the exercise of a discretion. It was common ground that the defendant required the leave of the court to reopen the ruling of Judge Porter. As discussed below, leave cannot be given unless the defendant shows there is ‘special reason’ to revisit the ruling.
4. [4]
   The questions presented by the application are whether the defendant has shown there is ‘special reason’ to reopen the ruling and, if so, whether the disputed evidence should be excluded because it does not satisfy the statutory criteria prescribed by section 93B of the Evidence Act. Those questions are connected and to a large extent the answer to the second question will determine the answer to the first. But before considering these questions, something should be said about the relevant statutory provisions and legal principles.

The statutory framework and applicable legal principles

5. [5]
   The Criminal Code 1899 (Qld) has provided for pre-trial directions and orders since 1997.^[5] What is now section 590AA of the Code relevantly provides:

590AAPre-trial directions and rulings

1. If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing.

…

3. A direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling.

4. A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.

6. [6]
   It was pursuant to this provision that Judge Porter heard and determined the defendant’s application for an order excluding from evidence the statement of NSG. The ruling of Judge Porter made pursuant to section 590AA and recorded in his Honour’s judgment, was that the application be dismissed. The present application is expressed as being an application to ‘[r]e-open the judgment of Porter KC DCJ delivered on 22 May 2020; R v BRN [2020] QDCPR 52’. It is a challenge to the ruling made by his Honour, rather than a new application. Notwithstanding a different approach by the defendant in the present application, it is caught by section 590AA(3), and special reason must be demonstrated before the ruling could be revisited.
7. [7]
   The words of section 590AA(3) may present an interesting question. A pre-trial ‘direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing … gives leave to reopen’ (my underlining). This phrase might be interpreted one of two ways. One interpretation is that it is only the judge who comes to hear the trial of the defendant or the judge who heard the original pre-trial hearing who may give leave to re-open the ruling. Another interpretation is that it is the judge who hears the trial or any judge to whom a subsequent pre-trial application is made to reopen the ruling. Support for the former proposition may be found in the obiter remarks of Fryberg J in R v Dunning; ex parte Attorney-General where his Honour stated, ‘Leave [to reopen] may be obtained only from the judge who made the original direction or ruling or from the judge presiding at the trial.’^[6] A similar view was expressed, again in obiter dicta, by Dalton J sitting at first instance in R v Handlen & Ors.^[7]
8. [8]
   Conversely, in R v Kay; Ex parte Attorney-General,^[8] P D McMurdo JA (with whom Fraser and Morrison JJA agreed) stated of section 590AA(3) that a ‘ruling was binding unless the judge presiding at the trial or at another pre-trial hearing, “for special reason”, gave leave to reopen the ruling’. Kay was an Attorney’s reference pursuant to 668A of the Code and concerned the decision of a trial judge to refuse an application by the prosecution that he recuse himself. Seen in this context, the observation of McMurdo JA about section 590AA(3) is also obiter dicta, and was made, understandably, without any reference to the earlier statements of Fryberg J and Dalton J.
9. [9]
   This issue was not raised by the parties before me, both of whom proceeded on the assumption that I was empowered by section 590AA(3) to reopen the ruling of Judge Porter. I think that assumption is correct. As a matter or pure construction the language of section 590AA(3) leaves open the two interpretations I have proposed. But I can identify no compelling reason to read the provision in a manner that would restrict its application to the judge appointed to conduct the trial or the judge who made the ruling. One reason may be to avoid ‘judge shopping’, but to the extent that might be a concern it is addressed by the need for an applicant to show there is a ‘special reason’ to reopen the ruling. As well, the legislative history of the provision does not suggest that section 590AA(3) should be read narrowly. As inserted into the Code in 1997, the original provision provided only for reopening of a ruling by ‘the trial judge’. In 2003 this was expanded to its present form of ‘the judge presiding at the trial or pre-trial hearing’.^[9] The 2003 amendment enlarged the possibilities for reopening a ruling or direction without apparent qualification. It may be expected that if parliament intended to limit the power to reopen to the trial judge or the judge who made the ruling, clear language to that effect would have been used.
10. [10]
    For these reasons I would prefer the view expressed by P D McMurdo JA in Kay. The reference to ‘pre-trial hearing’ in section 590AA(3) should be understood as a reference to a pre-trial hearing, whether before the same or a different judge, rather than to the pre-trial hearing at which the original ruling was made.
11. [11]
    Of course, it is a necessary condition for the exercise of the power to reopen a pre-trial ruling that there be ‘special reason’. Such a formulation is common. In Baker v The Queen, Gleeson CJ said:^[10]

There is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition to the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.

12. [12]
    It has been said in relation to section 590AA that:^[11]

A reopening of a pre-trial hearing should not be lightly undertaken. It is obviously undesirable that there be two conflicting decisions on a matter of law from different judges of the same court. Substantial disagreement with the earlier ruling may not always justify its reopening. For example, if a party applies for a reopening of a pre-trial hearing solely or primarily for the purpose of judge shopping, such an application should ordinarily be refused and, if appropriate in all the circumstances, the proceedings stayed as an abuse of process.

13. [13]
    In the same case another judge observed that where there are contradictory decisions on a matter of law from different judges of the same court, ‘such a situation approaches “the scandal of conflicting decisions”’ such as might amount to an abuse of process.^[12]
14. [14]
    Finally, in R v Dunning; ex parte Attorney-General, Williams JA observed:^[13]

It would be contrary to all notions of justice and fairness to say that a pre-trial ruling remained binding even though in light of the circumstances which emerged … doubts were raised as to the correctness of the ruling.

15. [15]
    It is for these reasons that it is first necessary to consider the substance of the defendant’s arguments concerning the admissibility of NSG’s statements to police while bearing in mind this court has no general authority to revisit the ruling of Judge Porter. The fact that there is some conflict between the decision of Judge Porter in this case and that of Judge Long in JAI does not on its own provide a special reason for reopening Judge Porter’s ruling. In the circumstances of this application, special reason to reopen Judge Porter’s ruling could only be found if the defendant shows that his concession that the statements were prima facie admissible was wrong and that had the concession not been made the evidence would have been ruled inadmissible. To decide this issue it is necessary to begin with the relevant text of section 93B.

Section 93B

16. [16]
    Section 93B provides a statutory exception to the rule against hearsay. In the form relevant to this application, it provides as follows:

93BAdmissibility of representation in prescribed criminal proceedings if person who made it is unavailable

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

1. made a representation about the asserted fact; and

2. is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

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. made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or

2. made in circumstances making it highly probable the representation is reliable; or

3. at the time it was made, against the interests of the person who made it.

…

"representation" includes—

1. an express or implied representation, whether oral or written; and

2. a representation to be inferred from conduct; and

3. a representation not intended by the person making it to be communicated to or seen by another person; and

4. a representation that for any reason is not communicated.

17. [17]
    The section is limited in its application to ‘a prescribed criminal proceeding’. That is defined as a proceeding for an offence defined in chapters 28 to 32 of the Criminal Code 1899 (Qld) (‘the Code’). The conduct alleged by NSG in his statements to police is reflected in the indictment in charges of sexual assault, contrary to the now repealed section 337 of the Code. Section 337 was formerly found in chapter 30. On this basis section 93B has potential application to the evidence of NSG. Given the length of time between the alleged offences and the statements made by NSG, section 93B(2)(a) could have no application, and section 93B(2)(c) is not relevant. Instead, the prosecution relies upon section 93B(2)(b) to argue that the hearsay rule does not apply to the statements of NSG.
18. [18]
    Section 93B(2)(b) calls attention to the need for the statements to be ‘made in circumstances making it highly probable the representation is reliable’. Before considering the application of this requirement in the present case, it is helpful to say something of the rulings of Judge Porter in the defendant’s case and of Judge Long in JAI.

R v BRN [2020] QDCPR 52

19. [19]
    Early in his Honour’s reasons, Judge Porter noted the concession by counsel then appearing for defendant that ‘the Interview [with NSG] satisfied the test for admissibility under s. 93B(2)(b).’ It is apparent there was little or no discussion of this issue in argument. Nonetheless, Judge Porter gave some consideration to the matter and observed that in his view, the concession was properly made.^[14] Five matters were identified as being relevant to this conclusion. It is useful to set them out as they appear in Judge Porter’s decision.

1. First, there is no evidence of inconsistent statements or conduct by NSG, 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. Second, the Interview appears to have been made by NSG 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 from 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 by me on the last occasion);

3. Third, the statement was taken by apparently experienced [redacted] police officers in circumstances of evident formality;

4. Fourth, NSG’s care attendant did frequently clarify what she thought NSG 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 NSG 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. Fifth, there is no basis on the face of the Interview to think that NSG was affected by any kind of incapacity or medication which affected his cognitive processes, despite his illness. None was suggested.

20. [20]
    His Honour recorded that he had regard the principles identified in the decisions of New South Wales Court of Criminal Appeal in R v Ambrosoli,^[15] and the decision of the Queensland Court of Appeal in R v Robertson.^[16] It will be necessary to return these decisions when considering the defendant’s present application. The matters listed above led Judge Porter to conclude that the statements of NSG met the requirement of section 93B(2)(b), despite lacking ‘the circumstances of spontaneity and contemporaneity which frequently marks such statements as inherently reliable.’^[17] His Honour went on to deal with, and reject, the defendant’s arguments concerning discretionary exclusionary of the statements of NSG.

R v JAI [2021] QDCPR 25

21. [21]
    JAI was decided by Judge Long about a year after the decision in BRN. Different legal representatives appeared for JAI. In contrast to the defendant’s application to Judge Porter, counsel in JAI argued that the statements made by NSG did not meet the requirements of section 93B(2)(b). Judge Long noted that the prosecution sought to defend the admissibility of NSG’s statement by reference to the matters identified by Judge Porter in BRN. It was said by the prosecution in JAI that these matters supported a conclusion that the evidence of NSG satisfied the requirement of 93B(2)(b).^[18] His Honour then analysed several decisions concerning section 93B or cognate provisions in other states, including Ambrosoli and Robertson. His Honour concluded from this analysis that there was the need to pay close attention to the circumstances attending the making of NSG’s statement to determine if it was made ‘in circumstances making it highly probable the representation is reliable’, while disregarding matters going only to the potential truthfulness of the representations.^[19] That is, ‘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.’^[20]
22. [22]
    Judge Long referred to the decision of the High Court of Australia in Sio v The Queen,^[21] before concluding that the representations of NSG concerning JAI were made in circumstances that ‘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.’^[22] It followed that the circumstances were not such that the court could disregard the possibility of concoction or, at least, distortion to the advantage of the maker [of the representation] or disadvantage of [JAI], in the representations made in contemplation of impending death and so many years after the events which are the subject of them, and as the central premise of allegations requiring proof of absence of consent as well as occurrence of the alleged acts.^[23]

23. [23]
    The result was that Judge Long could not be positively satisfied that the circumstances were such as to make it highly probable the representations were reliable. The evidence was excluded.
24. [24]
    I note that the decision reached by Judge Long in JAI is of limited relevance in the present application. The mere fact that a different judge reached a different conclusion about circumstances that were relevantly identical is not itself a reason to reopen Judge Porter’s ruling. Reasonable minds can differ when it comes to reaching conclusions about facts. I have set out a summary of Judge Long’s approach and conclusions in JAI simply as relevant background to the present application.

What is required by section 93B(2)(b)?

25. [25]
    Section 93B was inserted into the Evidence Act 1977 (Qld) in 2000. It closely reflects similar provisions in the Uniform Evidence Law.^[24] There was, for a time, a divergence of opinion in New South Wales as to what ‘circumstances’ may be considered. In New South Wales the debate was resolved in Ambrosoli. In Queensland, to the extent there was any debate, it was resolved in Robertson. In Robertson, Holmes JA (with whom Morrison JA and Atkinson J agreed) concluded the Ambrosoli approach was to be preferred. A substantial passage from her Honour’s judgment bears setting out in full (with citations omitted).

3. [58]
   In Ambrosoli, the New South Wales Court of Criminal Appeal reviewed apparently conflicting authorities as to the scope of the word “circumstances” in the equivalent provisions of the Evidence Act 1995 (NSW). The narrower view was represented by a ruling which Sperling J had given in R v Mankotia, in which he had construed the term as limited to the circumstances of the factual setting in which a representation was made, to the exclusion of events subsequent to the representation or other representations made by the same person at other times. At the other extreme were decisions which suggested that anything which confirmed the accuracy of what was said could be taken into account as a circumstance. Somewhere along the spectrum between the two approaches was Conway v The Queen, in which the Full Federal Court considered it legitimate for a trial judge to have regard to evidence of what the maker of the representation had said at other times in determining whether it was highly probable that a particular representation was reliable.
4. [59]
   The court endorsed Sperling J’s approach of treating the provision as directed at the circumstances in which the representation was made, but considered that events subsequent to the representation might nonetheless throw light on the circumstances of its making. Examples were an express retraction by its maker or evidence indicating that he or she could not have heard or seen the relevant matter. Prior or later statements or conduct of the person making the previous representation could be considered if they bore on the reliability of the circumstances of its making, but not if they merely went to the asserted fact.
5. [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.

3. [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.”

3. [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.

3. [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.
4. [64]
   My conclusion, then, is that this court should adhere to the Ambrosoli approach.

26. [26]
    From this it is clear that the proper focus of section 93B(2)(b) is not on matters that might tend to prove the assertions of fact contained in the representations are true, but on matters that indicate a high probability the representations are reliable.
27. [27]
    It is also necessary to identify each material fact to be proved by a hearsay statement and the circumstances of the representation asserting that fact to determine whether the conditions of admissibility are met. A compendious, impressionistic approach is not consistent with the legislation.^[25] So much was made clear by the decision of the High Court in Sio, referred to above. Sio was concerned with a provision in the New South Wales Evidence Act 1995 that is the equivalent of section 93B. Noting the similar origins and effect of the New South Wales statute as an exception to the rule against hearsay, a unanimous High Court observed, ‘[i]t is no light thing to admit a hearsay statement inculpating an accused,’ where, if the evidence is admitted, ‘the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion.’^[26]
28. [28]
    The Court went on to state that the legislation^[27] 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. 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 a 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.

29. [29]
    Of course, section 93B requires more than that the circumstances make it ‘likely’ the representation is reliable; positive satisfaction that it is ‘highly probable the representation is reliable’ is required.

The circumstances of the representations

30. [30]
    I have set out above a summary of the circumstances in which the representations of NSG came to be made. They were made in the United Kingdom in 2018, some 25 to 40 years after the events being described. NSG’s statements were made in a police interview in circumstances where it was plain that the investigation and possible prosecution of serious criminal offences was likely. They were made at a time when NSG knew he was dying. He was affected by a motor-neurone disease and was assisted by a carer during the interview with police. NSG’s ability to speak clearly was diminished to an extent by the disease. When I watched the interview, it seemed to me there were times when what NSG said could not be discerned. When this occurred his carer said what she understood NSG to have said, and NSG apparently confirmed the carer was correct. There is no evidence before me that NSG was cognitively impaired to any significant degree, whether because of the disease, medication or for some other reason.
31. [31]
    These same matters seem to me to apply to all NSG’s representations that are relied upon by the prosecution. I am conscious that a ‘compendious’ approach to the assessment of the circumstances was deprecated by the High Court in Sio. But here the parties have been content to adopt such an approach and it does not seem obviously inappropriate, as all the representations are contained in a single interview with police and neither party has identified any matter that might apply to one representation and not to another.^[28]

The matters relied upon by the prosecution as satisfying section 93B(2)(b)

32. [32]
    In this application the prosecution submits:

The representations were made by [NSG] to police in the United Kingdom in circumstances where … he knew he was dying and wanted the applicant to ‘be accountable’ and he didn’t want to take his ‘vile secret to his grave.’ There is no evidence [NSG] was cognitively impaired when he provided the statement. Nor is there any objective evidence of collusion or pressure in making the statement. At the time. [NSG] had already provided a statement to police for another matter [the prosecution of JAI], and his brother, who is joined as a complainant on the indictment, gave a statement days afterwards … in Australia.

[NSG] was a man who, knowing he was going to die, did not want what the applicant had done to him to die with him. The making of the representations in that context, where if he did not provide the statement, no one would know what the applicant had done to him, render the circumstances such as to make it highly probable [the] representations in that recording are reliable.

33. [33]
    The effect of this submission seems to be that the representations are imbued with reliability because they are in the nature of a ‘dying declaration’. That is, a person confronting imminent death is more likely to tell the truth. There are at least three difficulties with that submission. First, there is little similarity between the circumstances of NSG’s statements to the police and the examples of dying declarations that might be admissible at common law. The rule at common law is usually stated to be that a statement of a deceased is admissible as evidence of the cause of his death at a trial for his murder or manslaughter if the deceased was under a settled hopeless expectation of death when he made the statement.^[29]

34. [34]
    While NSG was dying, his representations were not contemporaneous with his death and did not concern the cause of it. Whatever logic underpins the rule at common law, it has little application in this case.
35. [35]
    Secondly, the notion that such an exception to the hearsay rule finds its provenance in religion, and the idea that no person ‘who is immediately going into the presence of his Maker, will do so with a lie on his lips’, may be considered outdated.^[30] It seems to me equally possible that in our increasingly secular society^[31] a person might lie with impudence, secure in their belief it will make no difference once they are dead.
36. [36]
    Thirdly, even if it is accepted that NSG’s knowledge of his pending death is relevant to an assessment of whether he honestly believed his representations were true, it says nothing of whether they are reliable recollections of events that occurred several decades before.
37. [37]
    It is true, as the prosecution submits, that there is no evidence of cognitive impairment or collusion. These are matters that, if present, would tell against the probability that the representations are reliable. Their absence cannot count against admissibility, but it contributes little to a finding of ‘positive satisfaction’^[32] that the circumstances are such that it is highly probable the representations are reliable.
38. [38]
    The five matters identified by Judge Porter on the first application to exclude evidence of the representations were also relied upon by the prosecution. Two, NSG’s awareness of his pending death and the absence of cognitive impairment have already been discussed. Of the remaining matters, the first is the absence of inconsistent or contradictory statements by NSG before or after the representations in the police interview. As with cognitive impairment or collusion, evidence of the existence of such statements would be significant, but the absence of contradictory statements is not a matter that provides much support for the prosecution’s contentions.
39. [39]
    The second matter is that the representations were made during a police interview, in a situation of apparent formality, and in a statement taken by an apparently experienced police officer. This is a matter which I agree increases the probability that the representations are reliable, but it is to be considered in the context of all relevant circumstances. On its own, it would be unusual for this circumstance to be enough to allow a conclusion that it is highly probable the representations are reliable. If that were so, practically every formal conversation by a complaint with police would satisfy the test set by section 93B(2)(b).
40. [40]
    The third matter is the absence of concern that NSG’s communication difficulties detracted from the reliability of his statements. While this is relevant, it is hardly a powerful indicator of the probability the representations are reliable. It is another example of a circumstance which, if present, would suggest unreliability, but its absence does not amount to a positive consideration supporting a finding of reliability. As was said in Sio, ‘[t]he 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.’^[33]
41. [41]
    Understandably, given the concession of the defendant at the first application, Judge Porter’s consideration of the circumstances of the representations was brief. His Honour could not be criticised for not discussing matters that were not put in issue or mentioned at all by counsel for the defendant. These include, in my view, two matters of significance. The first is the approach of the High Court to a cognate provision as found in Sio and the second is the obvious concern that statements made about events which occurred 25 to 40 years ago might not be an accurate recollection of the true facts.
42. [42]
    The reference in Sio to a ‘category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule’ is telling.^[34] The footnote to this statement cites passages in Wigmore on Evidence,^[35] the advice of the Privy Council in Ratten v The Queen,^[36] and the decision of the High Court of Australia in Walton v The Queen.^[37] Each of the cited passages underscores the significance of spontaneity, if not contemporaneity, as a reason for a relaxation of the rule. The passage cited in Ratten includes the following statement of Lord Wilberforce concerning res gestae:

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.

43. [43]
    While Ratten and Walton were concerned with rules of evidence established by the common law, the principles therein identified must inform the approach to be taken when applying section 93B(2)(b). So much is made clear by the reference to those cases in the Explanatory Notes to the bill introducing the provision.^[38] Once this is appreciated, it will be apparent that representations made long after the relevant events will not often be made in such circumstances ‘as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused’.^[39] That is not because spontaneity or contemporaneity are always necessary for admission of evidence pursuant to section 93B(2)(b). It is because, as a matter of common experience, the ability to reliably recall past events diminishes over time. Where a long delay creates doubt about the reliability of a representation, absent some other circumstance that points to the reliability of the representation, it will not be possible to be positively satisfied the circumstances of the representation make it highly probable it is reliable.^[40]
44. [44]
    It was acknowledged by Judge Porter that the representations of NSG ‘lacked the circumstances of spontaneity and contemporaneity which frequently marks such statements as inherently reliable’.^[41] The circumstances relied upon by the prosecution as supporting the reliability of the representations fall short of displacing the concern created by the decades long gap between the making of the representations and the events with which they were concerned. Most of the circumstances are neutral as to the reliability of the representations. The one matter that might positively support a finding of reliability, the formality of the interview, is insufficient to overcome concerns about the reliability of representations made about events so long in the past, which occurred over many years, and which began when NSG was very young.
45. [45]
    If counsel in the first application had considered, and brought to Judge Porter’s attention, the decision in Sio closer attention might have been paid to the circumstance of delay in the context of the exceptional nature of the admission of hearsay statements inculpating an accused.^[42] The caution to be exercised, as discussed in Sio, must be even more important in a case of this kind where NSG’s representations would be the only evidence that could prove the defendant committed the acts alleged in the indictment.^[43] Had the circumstances of NSG’s representations been fully considered and analysed, it would have been apparent that the defendant’s concession was wrongly made and the representations were not made in circumstances making it highly probably they were reliable.

Conclusion

46. [46]
    For these reasons, the concession of the defendant at the first application ‘that the Interview satisfied the test for admissibility under s. 93B(2)(b)’^[44] was wrong. The concession prevented a full consideration of the circumstances of NSG’s representations contained in the interview with police. On a full consideration of the circumstances, there is such doubt as to the reliability of the representation it is not possible to be positively satisfied it is highly probable the representations are reliable.
47. [47]
    The orders will be as set out on the first page of these reasons.