R v Stevenson [2019] NSWDC 232

District Court New South Wales

Medium Neutral Citation: R v Stevenson [2019] NSWDC 232 Hearing dates: 8 May 2019 Decision date: 08 May 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Proposed prosecution evidence inadmissible at trial. Catchwords: EVIDENCE – Hearsay - Exceptions – unavailable witness – reliability of representation. CRIMINAL PROCEDURE – Trial - Voir dire – admissibility of representations by complainant – 44 year delay – expert opinion. WORDS AND PHRASES – reliability – high probability. Legislation Cited: Evidence Act 1995 Cases Cited: Bauer v The Queen [2018] HCA 40 Harris v R [2005] NSWCCA 432 R v Carberry [2018] ACTSC 83 R v Smiler (No 1) [2012] NTSC 28 Sio v The Queen (2016) 259 CLR 47 Category: Procedural and other rulings Parties: Warwick Allan Stevenson (the accused) Director of Public Prosecutions Representation: Counsel: Mr S Fraser, Public Defenders NSW (for the Offender) Mr G Porter (Director of Public Prosecutions)

Solicitors: Morrisons Law (for the accused) File Number(s): 2017/00212500 Publication restriction: The names of the complainants are not to be published, nor is any other material that could lead to the identification of the complainants.

JUDGMENT – Ex Tempore Revised - Admissibility of statements of one complainant subject of count 3 and the subject of proposed tendency and coincidence evidence The names of the complainants are not to be published, nor is any other material that could lead to the identification of the complainants. 1. Warwick Allan Stevenson, the accused now before the Court, has indicated that he is not guilty of 13 counts alleging that between June 1970 and September 1981 he committed offences of indecent assault or procured the commission of an act of indecent assault with eight young male complainants. 2. The trial is listed to commence at Wollongong District Court on 13 May 2019, with a three week estimate. At this week's call over it was indicated that there was a pre-trial issue in relation to the admissibility of two statements made by one complainant: voir dire exhibit A. That complainant is the subject of count 3 and, if admitted, his evidence will form part of proposed tendency and coincidence evidence. The particular complainant is now deceased. It is accepted he is an unavailable witness: Part 2, cl 4 Dictionary Evidence Act 1995. 3. The Crown have given notice of their intention to put the representations contained in documents provided to police by that particular complainant before the jury at Mr Stevenson's trial: s 67 Evidence Act 1995. The proposed basis for the admissibility is s 65(2)(c) Evidence Act "the representation was made in circumstances that make it highly probable that the representation is reliable." Objection was taken by the defence. 4. Generally evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that that person intended to assert by the representation: s 59 Evidence Act. 5. Section 55 provides an exception. It says: "--in a criminal proceedings if a person who made a previous representation is not available to give evidence about an asserted fact. The hearsay rule does not apply to evidence of a previous representation that was given by the person who saw, heard or otherwise perceived the representation being made, if the representation...was made in circumstances that make it highly probable that the representation is reliable." 1. The representation before me as part of voir dire exhibit A contains these asserted facts: 1. That the complainant was part of the Church of England Boys Society (CEBS) during the relevant period. 2. He was then aged 13. 3. He was part of CEBS from 1968 to 1974. 4. That he first recalled an incident at the CEBS involving Stevenson in 1984. 5. That the incident occurred in 1971 when Stevenson was in charge of CEBS, the complainant recalls the nature of the hall where CEBS met and he is able to give details of what it is accepted would meet the elements of the offence. 6. He did not repeat his 1984 recollection until 2014 when he contacted another complainant in the forthcoming trial. That man, before this complainant had had a chance to say anything, said to him "What do you recall about Warwick Stevenson?" The two then had a discussion about the accused and what he did while at CEBS. The topic was also raised with the second complainant's brother. He too is a complainant in this trial. 1. The evidence before me indicates there is no direct corroboration of the asserted facts, but coincidence and tendency evidence would provide quite a bit of support to his assertions: Bauer v The Queen [2018] HCA 40. 2. The proposed evidence at its highest is plausible. The care with which courts have to approach such statements was reinforced by a statement of Professor Dianna Kenny: voir dire exhibit B. The Professor explains that there is always a danger that a judge when assessing complaint statements made years after the events will supplant matters properly the subject of expert evidence with their own experience or intuitive feelings. In this regard it is accepted that Dr Kenny has considerable experience in the field of why children do not disclose and why disclosures can come out over a lengthy period of time. 3. I had the benefit of submissions from Mr Porter, who appears for the Director of Public Prosecutions, and written submissions from Mr Fraser, for the accused. I trust this brief judgment will do justice to them. 4. Section 65 Evidence Act creates an exception to the exclusionary hearsay rule. The previous representation must be made by a person who had personal knowledge of an asserted fact: s 62 (1). It has been accepted that the structure of s 65 includes documentary representations such as the two written documents before me from the deceased complainant: part of voir dire exhibit A. 5. As the High Court made clear in Sio v The Queen (2016) 259 CLR 47, at [53]-[57], both s 65(1) and s 62 Evidence Act, direct attention to the particular representation, which asserts the relevant fact. Section 65(2)(c) is concerned with whether the representation was made in circumstances that make it highly probable the representation is reliable. When the provision speaks of a representation they are speaking of the particular representation that asserts the relevant facts sought to be proved. Section 65(2) proceeds on the assumption that a party is seeking to prove particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of the fact. 6. The circumstance in which that representation was made must be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved when tendering evidence under s 65. 7. Applying that direction to the material before me the following considerations are relevant: 1. The alleged incident is said to have occurred in 1971. 2. It is unfortunately not an unusual accusation for a person to make. The details contained in the representation provide colour to it. These peripheral matters may be able to be independently corroborated: for example; the nature of the hall, the nature of the accused's employment, incidents of his relationship with other young men. 3. The complainant here says that he first recalled the incident in 1984, when he was musing on his then recent experience as a young teacher. 4. Since that date had gone back to think about the incident many times. 5. It was only in 2014 when he found and made contact with another complainant that he first, in the circumstances I have described at [6] above, made a disclosure. 6. In 2015 he reduced his recollection to writing, the first of the two statements sought to be admitted as evidence in the trial. 7. He took that statement to police who properly incorporated it as an annexure to a statement, and required, as is the standard practice, the complainant execute the jurat, which is paragraph 1 of the representation of 29 January 2015. That statement is the second document sought to be admitted. 1. Mr Crown submits that it is well recognised that the jurat is designed to bring home to any witness in criminal proceedings the seriousness of the representation that they are asserting. It requires them to think about and assess the consequences of making a false statement. Mr Crown took me to a number of cases where this consideration has been taken into account as a circumstance when applying the tests outlined: R v Carberry [2018] ACTSC 83; R v Smiler (No 1) [2012] NTSC 28; Harris v R [2005] NSWCCA 432. He also took me to Professor Kenny's report, which provides an expert opinion for delay in compliant and why delay itself is not an indicator of the reliability of the representation.