Regina v Vincent Allan POLKINGHORNE [1999] NSWSC 704

Reported Decision : 108 A Crim R 189

New South Wales Supreme Court CITATION : Regina v Vincent Allan POLKINGHORNE [1999] NSWSC 704 revised - 23/07/99 CURRENT JURISDICTION : Criminal Jurisdiction FILE NUMBER(S) : 70051 of 1997 HEARING DATE(S) : 12 July 1999 JUDGMENT DATE : 13 July 1999

REGINA

PARTIES : v

VINCENT ALLAN POLKINGHORNE JUDGMENT OF : Levine J

G Lerve (Crown) COUNSEL : T Molomby F Clarke (Accused) J Kontista (Director of Public Prosecutions) SOLICITORS : V Swain (Legal Aid Commission) CATCHWORDS : Admissibility of evidence - ss 65, 72 and 137 Evidence Act 1995 (NSW) ACTS CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 59

DLJT: 1

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION WAGGA WAGGA No. 70051 of 1997

JUSTICE DAVID LEVINE

TUESDAY 13 JULY 1999

REGINA v VINCENT ALLAN POLKINGHORNE JUDGMENT (Admissibility of evidence - ss 65, 72 and 137 Evidence Act 1995 (NSW) ) 1 Mr Vincent Allan Polkinghorne is to be indicted for that he, on 26 July 1996, at Lavington in the State of New South Wales, did murder Donna Maree Conibear. 2 On 12 July the indictment was presented by the learned Crown Prosecutor to the initiate the proceedings to enable the determination of a question of the admissibility of certain evidence. 3 Exhibit A as on the voir dire is a folder containing a notice under s 67 of the Evidence Act 1995 (NSW) and the statements of the relevant witnesses, together with the evidence given at committal, touching upon the material the subject of consideration. 4 An "agreed" summary of facts for the purposes of argument is as follows: 5 The deceased, Donna Maree Conibear was stabbed at about 2 am on Friday 26 July 1996 in the main bedroom of residential premises at 376 Woomera Crescent, Lavington. At the time the stab wound was inflicted the deceased was lying on her stomach in the bed under bed clothes which included a doona. The knife used to inflict the wound was left in the doona. 6 At about 2 am on 26 July 1996 the deceased attended the home of her mother, Mrs Yvonne Conibear at 380 Woomera Crescent, Lavington. Mrs Yvonne Conibear contacted Mrs Lorraine (Lainie) Dunlop who lived at 378 Woomera Crescent. Mrs Dunlop soon thereafter attended the resident of Mrs Yvonne Conibear. Mrs Lorraine Dunlop called an ambulance. At about 2.16 am on 26 July 1996 ambulance officers Petrie and Steer attended. 7 The deceased was then transported to the Albury Base Hospital were treatment, including a thoracotomy was administered. She died at approximately 3.30 am on 26 July 1996 at the hospital. 8 A post-mortem examination was conducted on 29 July 1996 by Dr Peter Bradhusrt. His finding included (a) the deceased died of a single stab wound to the back of the left chest penetrating the lower lobe of the left lung and entering into the cavity of the left ventricle of the heart; (b) the left lung collapsed; (c) there was a left haemothorax 1000ml; (d) there were no "defensive wounds or injuries": this is consistent with the deceased lying on her stomach at the time the wound was inflicted; (e) the stab wound was consistent with having been caused by the knife left in the doona. 9 The knife which was in the doona was similar to four other knives found in the kitchen of the premises. 10 The evidence which the Crown seeks to have admitted is a statement by the deceased, "Mum, Vin stabbed me" made in response to an inquiry "What's the matter mate?" by the deceased's mother upon the deceased coming to her house. 11 There are two other statements of which evidence can be given by Mr Petrie, ambulance officer, which were made by the deceased subsequent in time to the representation made by her to her mother. Those statements were to the effect of an answer "I don't know" when asked "What happened?" Further, Mr Petrie can give evidence as to an observation he made of the deceased in the ambulance in response to the question to the effect "Who did this?" that she gave no oral reply but instead looked blankly out of the window of the ambulance. 12 The Crown relies upon s 65(2)(b) and (c) of the Evidence Act 1995 (NSW) and s 72 of the same legislation. 13 Section 65(2)(b) and (c) is as follows: "(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard, or otherwise perceived the representation being made, if the representation was: … (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, …" 14 Section 72 of the Evidence Act 1995 (NSW) (headed "Exception: Contemporaneous Statements About a Person's Health, etc."), is as follows: "72. The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensation, intention, knowledge or state of mind". 15 I am informed and accept that there is no authority directly on point in respect of this precise kind of evidence and its admissibility under the Evidence Act 1995 (NSW). 16 Accordingly, the approach was adopted by considering the general law commencing with the decision of the High Court in Walton v The Queen (1987-1988) 166 CLR 283 holding to the effect that evidence of a relevant out of Court statement is admissible to prove the maker's knowledge or state of mind in a case where the knowledge or state is itself a fact in issue or is provable (as against the party against whom the evidence is tendered) as a fact relevant to a fact in issue: see Wilson, Gaudron & Toohey JJ especially at 300-301. 17 Section 65(2)(b), it is submitted, is probably the closest test in the Evidence Act 1995 (NSW) to that which is referred to by Lord Wilberforce in Ratten v The Queen [1972] AC 378 at 388F to 389E, where his Lordship 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 recognised 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. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regard 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 to that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression 'res gestae' may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges' rulings". 18 This component of Lord Wilberforce's speech which constituted the Advice of the Privy Council, was considered by Barwick CJ in Vocisano v Vocisano (1973-1974) 130 CLR 267 at 272-3: "The question of whether statements form part of a res gestae is fraught with difficulty at any time. In the present case, the learned trial judge relied upon the views expressed by the Privy council when giving its advice in Ratten v The Queen … A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable:" but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility. In Ratten's Case , Lord Wilberforce seems to have regarded the relevant occurrence as the 'drama' which began when it may be supposed a threat to kill his wife was made by the appellant in that case and which ended with her death. So regarded, the telephone call was necessarily involved in the occurrence and the deceased's statement to the telephonist clearly contemporaneously identified with it" 19 The learned Crown also referred me to the transcript of argument before the High Court in Papakosmas v The Queen S139/98 (5 March 1999) which has yet to be decided. At pages 16 and 17 there is an indication that the old decision of Reg v Bedingfield (1879) 14 Cox's Criminal Cases 341 had "bitten the dust". It seems that Gleeson CJ was apparently in agreement with that proposition as to the curious authority of that decision of Cockburn CJ excluding both as a dying declaration and as part of the res gestae the well known statement of the deceased "See what Harry has done!" If the exchange referred to in the transcript evolves into an authoritative statement of the High Court in judgment in Papakosmas then the law of evidence will be well served. 20 Thus, it is submitted for the Crown for the purposes of s 65(2)(b) that there is no material available here which could lead to any other conclusion than that it was unlikely that the representation made by the deceased to her mother was a fabrication. It was a spontaneous remark in the sense that it happened within a very short time of the stabbing itself - within minutes - that is, shortly after the "drama" referred to by Lord Wilberforce leading up to the climax, had commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or what actually happened. 21 For the Crown reliance is also placed on s 65(2)(c) and an apparent concession was made that that was more "problematic" for the Crown given the statements of testimony that could be given by the ambulance officers. This goes to the question of reliability. 22 It is to be borne in mind that I am concerned with the admissibility of the statement to the mother and whether it was made in circumstances that make it "highly probable that the representation is reliable". What the Crown seems to be concerned about is the two later statements being available to affect the question of the probability of reliability. However the statements made to the ambulance officers are separate representations and must themselves be subject to the admissibility requirements of s 65(2). 23 If the statement twice made to the ambulance officer subsequent to the critical statement made to the mother are admissible, they may arguably go to the circumstances of the making by the deceased of the statement to the mother. This proposition which I sought to articulate during the course of submissions does not appear to me to have been developed. For the purposes of determining the admissibility of the statement made by the deceased to the mother nothing in the "circumstances" of her making it to her mother arguably derogates from its reliability. Equally arguably the circumstances in which the subsequent representations were made to the ambulance officers could make it highly probable that those representations were unreliable by reason of, applying one's common sense in the absence of expert evidence, the deterioration in the physical condition of the deceased. 24 For the moment therefore I am inclined to the view that if this material is admissible under s 65 it is admissible under s 65(2)(b) and (c) without recourse to the determination of the admissibility of the quite separate representations made by the deceased to another witness, namely the ambulance officer. 25 It is also argued for the Crown, as I have said, that the statement would be admissible hearsay by reason of it being contemporaneous representation for the purposes of s 72. It is certainly clear that any separate representations made by the deceased to the ambulance officer verbally (as opposed to the physical observation of her response to a question), would not be admissible under s 72 because the response does not fall within any of the matters therein referred to. I must say I have great difficulty with s 72 notwithstanding the "contemporaneity" component in the sense that on one reading of it arguably in respect to contemporaneous statements it renders the whole of the hearsay exclusionary rules irrelevant in the Evidence Act. The section makes sense, in my view, up to the point where it deals with "health, feelings and sensations". It is the inclusion of the words "intention, knowledge, or state of mind" that give rise to problems. As Mr Odgers has remarked in his learned text does "knowledge" and "state of mind" include "belief" or "memory"? No authority was cited to me in the course of argument on this very curious and vexing question. This reinforces the view that I have that the determination will depend upon the operation of s 65(2)(b) and (c). It was further argued on behalf of the Crown that in the event that I find the evidence admissible pursuant to s 65 the tests for the exercise of the discretions in Part 3.11 of the Act (s 135-137) will have been satisfied. 26 Mr Molomby for the accused approached the question by examining s 65(2)(c) first. He argued that what the drafters of the legislation had in mind have not been achieved by the wording of the relevant sections. If what was sought to be achieved was the coming to a conclusion about the high probability of reliability, the wrong set of "circumstances" have been addressed. As I understand the submission it is the circumstances of the relating of the event perceived or observed rather than the event itself which are relied upon to determine reliability. In other words, the test of reliability is confined to the circumstances of the narration and thus, the reliability of the representation, cannot "logically" be established only by the circumstances of the narration. It is argued that it just cannot logically be done, that is, one establishes how reliable what someone is saying about something that happened by looking only at the transaction between the narrator and the person to whom the account is given. 27 It is submitted that it would be impossible for the Court in this case to determine the reliability of the narration from the circumstances in which it was made to the mother. What was said by Mr Molomby was "it would be a totally irrational proposition to assert that the reliability of the original observation could be established by the circumstances in which it was narrated" (T13.10). 28 In the context of Mr Molomby's own submissions the extracted part really is contradictory. It is fundamental to Mr Molomby's submission that the legislature has enacted the "wrong test" by referring to the circumstances of the narration rather the circumstances of the original observation of the event being narrated. It is not the reliability of the observation of the actual circumstances that is being tested, even on Mr Molomby's own argument, it is the reliability of the narration of the observations as to what happened. 29 Be all that as it may, whilst it may well be arguable along the lines that the legislature has chosen the "wrong test", the test still remains that contained in the wording of the section itself which refers to the circumstances of the narration. 30 It seems to me that what the legislature has done is to focus upon the reliability of the narration of the events to determine the admissibility of the evidence of that narration as going to the proof of the events themselves. The question of admissibility is one thing, the question of ultimate proof is another, of course. 31 In this regard I must say I agree with some statements made by Sperling J in Regina v Mankotia (unreported, 27 July 1998) at 5 and 6, to which I will return shortly. 32 I am unable to accept the submission for the accused made by Mr Molomby. Indeed, when one reads what Lord Wilberforce said in Ratten at 389 there is not the slightest suggestion that the test there expounded by him involves an examination by the event as opposed to the examination of the narration of it. 33 In relation to s 65(2)(b), the same argument is advanced in relation to that component of the paragraph of the subsection that refers to "circumstances that make it unlikely that the representation is a fabrication" - that is, one must look at the circumstances of the event being narrated rather than the narration itself. With that I have dealt. 34 The second component of Mr Molomby's submission is a very interesting one in relation to this subsection which opens with the words "made when or shortly after the asserted fact occurred". "Asserted fact" is defined in s 59 which provides: "(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by their representation.