There is a heartbreaking but also heartening story in today’s Age about the family of 70-year-old Marea Yann, who was bashed to death in 2003. A jury recently acquitted her son-in-law of the murder, despite evidence that he had allegedly confessed to the killing and a claimed motive concerning a dispute with his wife / her daughter. What is heartening is that the victims have responded with a quite sensible call: for reform to Victoria’s evidence law to permit the victim’s voice to be heard. Not, mind you, via a ouija board, but rather through exceptions to the hearsay rule. In Victoria, such exceptions are on the way in the form of a bill enacting Australia’s uniform evidence legislation, which notably liberalises the hearsay rule with exceptions in criminal cases for when the speaker is ‘unavailable’, for example because he or she is dead:
65 Exception: criminal proceedings if maker not available
(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…
Andrew Palmer and I were both quoted in the article as noting that the new exceptions (notably 65(2)(b)) would seem to cover at least one of the pieces of evidence rejected in the trial, where the victim received a phone call and then told someone that it was her son, threatening to kill her.
But there’s a need for caution, too. The Charter contains the following guarantee for criminal defendants:
25(2) A person charged with a criminal offence is entitled without
discrimination to the following minimum guarantees-…
(g) to examine, or have examined, witnesses against him or her, unless
otherwise provided for by law;
I’ve previously written about the unfortunate nature of the words ‘otherwise provided for by law’ (unique to Victoria), which seem to exclude hearsay exceptions from being incompatible with this guarantee (although the right to a fair hearing may fill that gap.) What’s the danger?
The article quotes me sounding a note of caution:
“I’m not totally sure that you learn a lot from phone calls like that. I’m not doubting what the victim was saying, I’m sure she was unlikely to be lying, but people throw threats around, unfortunately, and people talk about fear in a variety of contexts, not all of which are relevant to a murder investigation.”
The case I had in mind was a Newfoundland case involving the frenzied stabbing murder of Cathy Carroll in her own home. The major hearsay evidence adduced at the trial of her son, Greg Parsons, who had found her body, was:
- Carroll’s lawyer told police that she had described an incident when her son had held a knife to her and told her that some day he would kill her and cut her into peaces;
- her psychologist told police that she had expressed fears over the previous three months that her son was going to kill her;
- Carroll had sought a ‘peace bond’ (an apprehended violence order) against him.
When the police investigated further, they obtained statements from two dozen people that Caroll was scared of her son and that he had threatened her and assaulted her. The police were heartened to learn that all this hearsay evidence had recently become potentially admissible after a Supreme Court of Canada judgment had started on the road towards a ‘principled exception’ to the hearsay rule for reliable and necessary evidence, a road it later affirmed in a case involving a telephone call the deceased received. At Parsons’s trial, a judge ruled that all the evidence of Carroll’s fears of her son was admissible under that case, ignoring evidence that she wasn’t a well woman.In addition to this hearsay, Parsons admitted that he had once pushed his mother over so she struck her back on a coffee table and there was also a tape of a song he had written and performed with his band, and which he had played to his mother in front of his horrified neighbour. Here are the lyrics:
You’re fucking crazy I was home one day trying to smoke my dope When the bitch walked in, I took her with a rope Ha Ha Ha Ha Yeah Yeah Yeah Kill your fuckin’ mother, kill your fuckin’ father Stab once, stab twice. Ha Ha Ha Ha Kill your parents You know who walked in and saw her lying on the floor, He said what did you do? I said I killed the whore Ha Ha Ha Ha Yeah Yeah Yeah Kill your parents He looked at me and said you’re fucking nuts So I drew my knife and stabbed him in the guts Ha Ha Ha Ha. Kill your parents. Kill your parents Kill your fuckin’ mother, kill your fuckin’ father Kill your parents.
I’m sure it sounds better to music! This tape was admitted as well. At the trial, the prosecutor told the jury: “…you have to ask yourselves the following question, if Greg Parsons didn’t cause his mother’s death who did?” Parsons was convicted, although that conviction was quashed on appeal when a court ruled that the hearsay should have been subjected to the probative/prejudice test – item by item -, that the tape obviously couldn’t have passed that test and that the prosecution’s statement was inappropriate.
Alas, while Parsons was awaiting a new trial, the question the prosecutor asked soon became very pertinent. DNA testing showed that a hair from the crime scene, finger nail scrapings from Carroll and a blood-soaked soap wrapper didn’t match either Carroll or Parsons. The Newfoundland police used a combination of a mass DNA screening (retesting samples taken from every witness associated with the case), a familial screening (noting a partial match to one witness, implicating her family) and an informal gathering (tracking down a family member to Toronto and following him around until he discarded a drink in a bin, which was then DNA sampled for its saliva.) The DNA turned out to match Brian Doyle, a childhood friend of Parsons and a neighbour of Carroll’s at the time of her death. He soon confessed to the murder. A full description of the case and its follow-up can be found in this Royal Commission Report (see Chapter 3), which concludes (at p143) that reliability for the purpose of liberalised hearsay exceptions should focus on the circumstances in which the statement was made, rather than its apparent close match to any events that later occurred.
Cases like this should be food for thought for Victorian courts who will be the first in the country to apply the interpretation mandate to the uniform evidence legislation.