THE PROSECUTION SEEKS TO PRESENT HEARSAY EVIDENCE DUE TO THE DEATH OF THE SUPPOSED WITNESS/DECEASED-VICTIM

Re Griffith [2021] VSC 316 (1 June 2021)

This is a murder case where the prosecution seeks to present hearsay evidence because the supposed witness (which is also the victim) is already dead.

Facts:

The Director of Public Prosecutions gave notice that the prosecution intends to use hearsay evidence.  That is, evidence of a previous representation by a person to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

The previous representations are said to have been made by Mr Alan Wain who is now deceased. The unavailability of the witness Mr Wain is conceded by the defence.

Mr Gene Griffith (‘the accused’), being charged with murder can be stated briefly.  On 2 June 2019, Mr Wain and his wife Mrs Patricia Wain, were at home. Mrs Wain, who was in the backroom of her house heard her husband say ‘No this is not your house’.  She heard her husband yell something out and went to the front door.  When she went to the front door she saw her husband and a person alleged to be the accused (‘the man’) at the bottom of the steps going down from the front door.

Her husband was bleeding from the top of his head. Mrs Wain then called 000. During the call, Mr Wain can be heard to say ‘his name is Karl’.

Police arrived at the house after the man had left.  Mr Wain told the police what happened and pointed out to them some items said to have been left by the man, in particular a pair of Nike runners.

In the evening of 3 June 2019, Mr Wain’s condition deteriorated and he was found to have a subdural haematoma or haematomas.  He was operated on in the early hours of 4 June 2019.  His condition continued to deteriorate and he was transferred to St Vincent’s Hospital.  There was a further operation but Mr Wain did not recover consciousness and died on 19 June 2019 after being taken off  life support.

The police investigation continued, including an examination of items recovered at the scene, collection of CCTV footage and interview of the accused. The accused made no admissions relevant to being the man present at the house or having any recollection of being involved in any incident at the house.

The application is brought on the basis that the representations come within the exceptions set out in S.65(2)(b) and (c) of the Act. It is accepted that Mr Wain is unavailable.

All of the representations occur in circumstances where Mr Wain is providing a narrative of what had occurred to him at different times on the 2 June 2019.

Mr Desmond in his submissions linked the two propositions set out S.65(2)(b).  That is, the representations cannot really be said to be ‘shortly after’ the asserted fact because they lack spontaneity, they are mere repetitions and many of them follow after Mr Wain had committed himself to a particular narrative. In turn, those matters lead to the suggestion that the representations should not be viewed as unlikely to be fabrications as they are necessarily unreliable.

Issue: Should the hearsay evidence be admitted?

Law:

• Evidence Act 2008 S.65(2)(b) and (c)

Analysis:

The first four representations were made to Mrs Wain.  The first representation was made in response to a question from Mrs Wain who had noticed her husband’s head bleeding and asked ‘Did he hit you’ to which her husband replied ‘Yes’. Taken as a single representation, it is unchallengeable.

The second representation(s) is/are more detailed. It is a simple, uncomplicated narrative to his wife who is familiar with the surrounding circumstances and can observe his injury or injuries. The court does not regard there being anything about the circumstances which would render the representations a fabrication.

It follows from her description that although her husband had been angry at the point of confrontation at the front door there was no apparent hostility between Mr Wain and the man. Given what had occurred the events were quite unremarkable.  When Mr Wain was speaking to his wife he appears to have been simply telling her what happened.  He would not actually have known how much of the events she had seen.  It is reasonable to assume that because she had asked ‘Did he hit you?’ that she had not seen the alleged assault.  At that time Mr Wain did not appear to have been seriously injured.  Even though Mr Wain did not come back inside the house when requested by his wife to do so there was no further contact.  Mr Wain stood on the steps and the man sat on the steps.  The man was told that the Wains were seeking assistance but he chose to leave and no attempt was made to restrain him.  The man asked for directions and they were given.  What Mrs Wain said reinforces the court’s conclusion the these representations are reliable. Mr Wain was simply telling his wife what had happened.

Representation 8 relates to stating what had happened and representation 9 provides a description of the man. The representations are straightforward and relatively uncomplicated.  They are made to a police officer who had responded to the 000 call and who can see some of the injuries suffered.  The circumstances are such that I regard it as unlikely that the representations are fabricated.

In discussion the question arose as to whether repetition of a version made it more likely that it was true.  As a matter of logic that is not so. However, when the truthfulness or reliability of a version is being tested one of the indicia which might be used is consistency of the version advanced.  In general, Mr Wain did give a consistent version of events.

Conclusion: Hearsay evidence is hereby admitted

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