R v Tarantino

(Revised from Transcript)

1. [1]

   Objection is taken by Senior Counsel for the accused, Ms Rigg SC, to the tender of part of a statement of a Crown witness, Ms Elaine Third, who is now deceased.

2. [2]

   On 27 July 1998 the deceased, Ms Quanne Diec, disappeared sometime after leaving her home in Seventh Street at Granville and before arriving at her school. At the time of her disappearance Ms Diec was 12 years old. The Crown case is that the accused kidnapped Ms Diec from Factory Street, Granville that morning while driving a white van with the registration PAQ-205, then took her to his father’s home nearby and murdered her.

3. [3]

   Factory Street is located between Ms Diec’s home in Seventh Street and Clyde railway station. I anticipate the evidence at the trial will be that Ms Diec usually boarded a train at Clyde railway station to travel to school.

4. [4]

   In 1998, Ms Third, who was then 58 years of age, lived at Granville. Sometime after 4.35pm on 28 July 1998, being the day after Ms Diec’s disappearance, Ms Third provided the police with a statement. In her statement, she described walking from her home to Clyde railway station on the morning of 27 July 1998. In paragraph 5 she stated:

5. [5]

   Paragraphs 6 and 7 of her statement are as follows:

6. [6]

   At this point I note the following matters about these paragraphs. First, the sentence at the end of paragraph 6 was read by the Crown Prosecutor on the voir dire in support of so much of the tender as was necessary to demonstrate that the circumstances surrounding the making of the statement rendered it highly probable that the relevant representation is reliable. That is because in that passage Ms Third explained why it was she made observations at the scene. The Crown indicated that if the statement is read to the jury, that part of paragraph 6 will not be read.

7. [7]

   Second, the relevant part of the statement that is objected to by Ms Rigg is so much of it that describes the person that Ms Third observed as young, that is, the references to “young female” and “young girl”.

8. [8]

   Third, it is to be noted that Ms Third’s observations of the scene were sufficiently detailed that she recorded, at least in her own mind, the first three letters of the licence plate of the van she observed. That is not a usual step one might take if one was observing the otherwise relatively normal scene of someone opening the passenger door of a van.

9. [9]

   Paragraph 8 of the statement records what Ms Third describes as an “impression” about the direction in which she thought the van left. The Crown Prosecutor stated that this paragraph is not pressed.

10. [10]

    In paragraph 9 of her statement, Ms Third refers to being approached the following morning by someone inquiring about Ms Diec’s disappearance. In that passage, she simply recounts being shown a photo of a “young Asian girl” but does not indicate her response.

11. [11]

    Paragraphs 11 and 12 of Ms Third’s statement read as follows:

12. [12]

    On the hearing of this application, the Crown Prosecutor indicated that the sentence in paragraph 11 that states “I couldn’t say that she appeared Caucasian but she looked to be foreign” was not pressed. Nevertheless, Ms Rigg took objection to the balance of paragraph 11, and to so much of paragraph 12 that referred to the person that Ms Third observed as being a “girl”.

13. [13]

    On 5 August 1998, Ms Third was re-interviewed by the police. The interview was not recorded or embodied in any statement. Instead, the only recording of what was stated was set out in a police “Running Sheet” and an accompanying diagram. The running sheet relevantly records “[Ms] Third cannot recall the clothing of the girl other than [a] blue long sleeved jumper. She cannot recall sighting a school bag or back pack. She was shown current photo of [missing person] and was unable to positively identify.” The accompanying diagram appears to be a sketch of the scene in Factory Street. It includes handwritten entries “no backpack seen”, “not holding bag” and “viewed photo - unsure”.

14. [14]

    The Crown does not seek to tender any part of the running sheet or the photograph. Ms Rigg submitted that, as a matter of fairness, the representation recorded in the diagram “no backpack seen” and “not holding bag” should be presented to the jury with the balance of Ms Third’s statement of 28 July 1998. There is much force in that, although, by the same measure, the jury will also need to be advised of what is recorded in the running sheet, subject to one matter. That one matter is to ascertain whether the diagram in fact records what the police officer wrote down from speaking to Ms Third or is in fact Ms Third’s handwriting. If the diagram is simply the police officer’s notes, then, for the complete picture, both the handwritten statements in the diagram about “no backpack seen” and “not holding bag” would need to be read together with the statement in the running sheet.

15. [15]

    I mention this at this stage because I think the best course is for the Crown to make further inquiries, at least from the officer, if that is possible, as to whether the diagram is in the officer’s handwriting. At first blush that appears to be so, given the statement “viewed photo - unsure” which seems unlikely to have been written by Ms Third.

16. [16]

    Of more significance is the fact that on 3 September 2018, Ms Third participated in a “hypnosis” session with a psychologist which was recorded. The Crown does not seek to adduce evidence of what was stated during that session, but some of the matters stated by Ms Third at that time are relevant to the determination of the admissibility of the disputed portions of her statement of 28 July 1998. In the transcript of that session, at a time before the “hypnosis” commences, Ms Third records what she said when she was approached by the person whom she understood was a member of Ms Diec’s family on the morning of 28 July 1998. In particular, Ms Third stated:

17. [17]

    The Crown accepts that, insofar as it will adduce evidence to the jury of the making of the statement of 28 July 1998, then as a matter of fairness it should also appraise the jury that, on 3 September 1998, Ms Third gave this description of what she said on the morning of 28 July 1998.

18. [18]

    Further, in the section of the interview which records what Ms Third stated, after the psychologist purported to “hypnotise” her, the following is recorded:

19. [19]

    Otherwise, during that interview, Ms Third expanded upon the assertion in her statement of 28 July 1998 that the scene appeared unusual in that she did not think the girl was old enough to be working. Ms Third explained that she had assumed that, prior to her further observations, the girl that she observed had in fact come out of the van after having finished some form of work. Thus, she said: “I remember thinking to myself she’s too young to be working.”

20. [20]

    Ms Third passed away in 2015. Save for the parts which I have indicated, the Crown Prosecutor seeks to tender her statement of 28 July 1998 and, to that end, seeks to rely on s 65 of the Evidence Act 1995, specifically, subs (2)(b) and (c). Those provisions provide:

21. [21]

    As is clear from what I stated, not every aspect of the tender of the statement is opposed, but some particular parts in which Ms Third purported to state various identifying characteristics of the female she saw in Factory Street are.

22. [22]

    In considering s 65, two matters should be borne in mind. The first is the observation in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [60] (“Sio”) that it is “no light thing to admit a hearsay statement inculpating an accused”. This is because where s 65 is successfully invoked, “the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion” (Sio at [60]).

23. [23]

    The second matter is that, in applying s 65, it is necessary to identify the precise representation that is sought to be adduced and then to consider the circumstances in which that representation was made in order to determine whether the conditions of admissibility specified in s 65(2) are met or not (Sio at [57]).

24. [24]

    There is a threshold question as to whether the representations that are recorded in the statement of 28 July 1998 were made “shortly after” the asserted fact so as to engage s 65(2)(b). The asserted facts concern Ms Third’s observation of the events at around 7.35am on 27 July 1998. The representations recorded in the statement of 28 July 1998 were made, as I said, sometime after 4.35pm on 28 July 1998 and presumably no later than around 11.00pm that night, that is, between 33 and 38 hours after the asserted fact.

25. [25]

    In Regina v Mankotia [1998] NSWSC 295 (“Mankotia”), Sperling J observed that the quote “shortly after” requires a “normative judgment … to be made dependent on the circumstances of the case”. In Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490 (“Williams”), the Full Court of the Federal Court observed (at [48]):

26. [26]

    Consistent with the emphasis upon a statement being made under the proximate pressure of the occurrence of the asserted fact, typically passages of time of seconds or hours have been held to satisfy the test of “shortly after” (see, for example, R v Ian Dacey; R v Lee Dacey [2013] NSWSC 1875 at [19] (“Dacey”) and R v Afu; R v Caleo (No 15) [2018] NSWSC 245 at [24]). However, periods of many days and months generally have not (see R v Maglovski [2012] NSWSC 1378 at [13], concerning a period of three months; Williams at [49], concerning a period of five days).

27. [27]

    It seems that periods of time longer than a day but shorter than a number of days are the most problematic. In Dacey at [50], Button J held that a 30-hour lapse was not sufficient to make the representation “shortly after” the asserted fact. I made a finding to the same effect in R v Bryce (No 1) [2014] NSWSC 495 at [25] to [32] (“Bryce”). However, in R v Toki (No 3) [2000] NSWSC 999 at [92] (“Toki”), Howie J held that a delay of one day between the asserted fact and the making of a representation nevertheless meant that the representation was made shortly after the asserted fact.

28. [28]

    All of these findings are fact specific as contemplated by the statement of Sperling J in Mankotia. Thus, in Toki, the representation was made to the treating doctor for injuries received during the events that gave rise to the asserted fact.

29. [29]

    In the end result, consistent with Bryce and Dacey, I am not satisfied that Ms Third’s representations were made “shortly after” the events she witnessed on the morning of 27 July 1998. It follows that the admissibility of the disputed representations then falls to be determined by reference to s 65(2)(c) of the Evidence Act, namely whether the representations were made “in circumstances that make it highly probable that the representation is reliable”. At the risk of repetition, this requires a focus on the particular representation (Sio at [57]), as well as a consideration of the circumstances surrounding it which may cast light upon the reliability of the making of the representation, but not the reliability of the asserted fact itself (see R v Ambrosoli (2002) 55 NSWLR 603 at [28] to [29]).

30. [30]

    The first (disputed) representation contained in Ms Third’s statement is her various descriptions of the age of the female she observed near the van on the morning of 27 July 1998 (ie, “young”).

31. [31]

    Given the age of Ms Diec at the time she disappeared, there is no reason to doubt the relevance of that representation (Evidence Act, s 55).

32. [32]

    Ms Rigg submitted that this representation involved the expression of an opinion that was excluded by s 76 of the Evidence Act and not capable of being admitted as a lay opinion under s 78 of the Evidence Act. I disagree. Whatever the scope of s 78, an assessment by someone of the relative age of a person that they have directly observed over a period of time represents the classic expression of a lay opinion that a witness may state under s 78 (see Partington v R [2009] NSWCCA 232 at [46]).

33. [33]

    However, s 65(2)(c) remains to be satisfied. In that respect, there is no reason to cast any doubt whatsoever upon Ms Third’s honesty in making the representation or, if there is any difference, upon whether there was any potential for fabrication or concoction. All the material suggests that Ms Third was simply an ordinary member of the public doing whatever she could to assist but, equally, being careful not to overstate her actual recollection by purporting to make positive identifications of the female she observed.

34. [34]

    Nevertheless, the inquiry required by s 65(2)(c) is much wider than an assessment of the honesty of the maker of the representation. In her written and oral submissions, Ms Rigg identified a number of matters which, considered individually or cumulatively, were said to negate any determination that the representation made by Ms Third about the relative youth of the female she observed was made in circumstances that made it highly probable that it was reliable. The most prominent of these was said to be the relatively mundane nature of what Ms Third was describing, namely, a scene on a suburban street in which a person whom she thought had just alighted a vehicle spoke in an animated fashion with the driver and then jumped again in the van before it departed.

35. [35]

    However, I do not think that is a complete description of the relative significance to the witness of what she observed. Both in her statement and in her interview under “hypnosis”, Ms Third explained precisely why she thought the scene she was observing was unusual, namely the relative youth of the person she observed and what she thought that they were doing on that morning. More specifically, a review of the statement and the interview reveals that Ms Third clearly did consider the scene to be unusual by reason of the observations that she made, most specifically the licence plate of the vehicle that she saw. In the ordinary course of things, people walking upon such scenes do not take it upon themselves to record the licence plate, or even parts of it, of a vehicle that simply collects a passenger and drives off.

36. [36]

    In her written submissions, Ms Rigg also referred to the following matters as bearing upon s 65(2)(c), namely that Ms Third said that she did not see the person’s face; that it was a very bright morning with the sun shining from behind the van towards Ms Third when she observed the person; that she indicated she did not have good long distance sight and the sunglasses she was wearing did not have prescription lenses in them. Ms Rigg also noted that Ms Third indicated that she did not see the “features” of the female, which I understand to be a reference to the facial features, and instead, at best, only saw the female talking side-on and that the female’s face was shaded.

37. [37]

    Consistent with Sio, these matters need to be considered in the context of the precise representation in question. The representation was not one concerning the identity of the female that was observed, much less the driver. The representation only concerned the relative age of the female that she observed.

38. [38]

    Ms Third’s statement suggests she observed the scene reasonably closely, ie, from a distance of about 90 feet to the point where she was 20 feet from the van. She transversed that distance on foot. During that time, she was so struck by what she observed that, as I have said, she recorded in her mind at least part of the licence plate.

39. [39]

    In her interview, she described her “long distance sight” as not very good as part of her explanation for not seeing the girl’s facial features. As I have said, if Ms Third had purported to identify Ms Diec based on this, I would have real doubts as to whether s 65(2)(c) was satisfied. However, the representation concerned a far more limited topic, namely the age of the person.

40. [40]

    Ms Third was 58 years of age at the time she made these observations. Given the time in which she had to make them, her explanation as to what she observed and why she made the observation, I am satisfied that the representation by her, as to the relative age of the person, was made in circumstances that made it highly probable that it was reliable. Accordingly, s 65(2)(c) is satisfied.

41. [41]

    In her oral submissions, Ms Rigg also submitted that this aspect of Ms Third’s statement should be rejected under s 137 of the Evidence Act because it is, ultimately, an opinion and the basis for the opinion has not been stated. However, the very nature of lay opinions, especially observations about the age of persons, is such that the type of explanation that one can receive for the conclusion is usually very limited. The classic discussion of the reasoning of an expert in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 has no relevance to these forms of opinions or assessments. Instead, this is the type of assessment that people are able to make every day. In this case, the assessment was made in circumstances that suggest that Ms Third had a reasonably long period to observe the person’s height, stature, aspects of her physical appearance and manner of interaction with the driver and where she took the opportunity to do so. In those circumstances, I do not discern any relevant unfairness of the type envisaged by s 137 that would warrant the passage’s rejection.

42. [42]

    Accordingly, the evidence of the representation by Ms Third on 28 July 1998 that the person she observed was either a “young girl” or a “young female” will be admitted.

43. [43]

    There remains to consider paragraph 11 of Ms Third’s statement of 28 July 1998. The first part of paragraph 11 records an estimate, in reasonably wide terms, of the young female’s age, namely 10 to 15 years. The finding that I have just made in relation to the statement that the person she observed was a “young female” applies equally to that representation. Next, Ms Third describes the person as a “bit taller than myself, probably about five foot two to five foot four and of slim build”. The balance of the description concerns the length of her hair and the fact that she was wearing a “long sleeved dark blue jumper or skivvy”.

44. [44]

    Given the opportunity that Ms Third had to observe this person, the reasons she stated for why she made those observations and the relatively short passage of time between the observed incident and the representations, then, for the reasons given in relation to the admissibility of the representation concerning the “young female”, I am satisfied that those representations were also made “in circumstances that make it highly probable that the representation is reliable”.

45. [45]

    Those descriptions of the person she observed are relatively self-explanatory and are not undermined by the various limitations that Ms Third herself described both in that statement and in her interview under “hypnosis”. As I have already said, the position would be different if the relevant representation purported to be the identification of a particular individual, being either the female talking to the driver or the driver.

46. [46]

    It follows that the representations recorded in paragraph 11 of the statement of Ms Third dated 28 July 1998, save for the reference to the person she observed being “foreign”, will be admitted. Otherwise, the finding I made in relation to s 137 concerning the reference to the person observed being a “young female” equally applies to so much of paragraph 11 that records an assessment of the person’s age.