R v Aujla & Anor

2 In short, it is alleged that the accused men agreed to kidnap Parmjit in order to hold him to ransom. Part of the execution of that plan involved, on 7 December 2010 at 4.30am, breaking into his house, beating him until he was disabled, immobilising him with duct tape restraints and removing him to a secure location. The Crown case is that Aujla drove to near Parmjit's house in his black Holden Caprice and that Amandeep Singh drove to near Parmjit's house in his white Mazda 3 tonne van.

3 Aujla ran a small business installing fire alarms and for a time house insulation. Amandeep Singh worked for him. A potential witness in this case, Harpreet Singh, also worked for Aujla. He is the author of a statement made to the informant, Detective Senior Constable Joshua Morgan, on 4 January 2011. That statement is annexed to this ruling. This statement was made through an interpreter, Surabjit Singh. It was signed by Harpreet Singh and acknowledged by him as being true and correct in the usual form.

4 This statement, if the witness were to swear up to it, contains powerful evidence in support of the prosecution. In very short compass, it provides, inter alia, evidence of the following propositions:

(c) On the morning of 7 December 2010 (some hours after the break in), he drove this car with Aujla as a passenger to Amandeep Singh's house. Amandeep entered the car and all three drove back to Aujla's house.

(d) Aujla told him to take a Volkswagen van (a work van) and to drive Amandeep to a location.

(e) Amandeep directed him to Wood Road, a location near 288 Centre Road, Narre Warren. He saw Amandeep's white van. Amandeep directed him to stop about 100 metres from this van. He left without assisting Amandeep any further.

(f) He drove to Aujla's warehouse in Hammond Road, Dandenong. No one was there. A short time later, first Amandeep arrived in his van and then Aujla arrived in the black Holden. The Holden was parked in the warehouse. Aujla told him to drive Amandeep to a location. Amandeep directed him to an old warehouse once associated with Aujla at 101 Princes Highway, Dandenong. He saw a four tonne truck with "Europcar" sign writing upon it. Amandeep returned the truck to Europcar. The witness followed him and took him back to Aujla's warehouse. Other evidence demonstrates that the four tonne truck was hired the day before in Amandeep's name and had been driven only a few kilometres.

(g) Upon arrival back at the Hammond Road warehouse, he saw that Aujla was cleaning his Statesman. He was outside the back of the warehouse and banged the mats on the ground and then left them inside the warehouse. He then used a cloth to clean the inside of the car. Amandeep stood next to the car but did not actually clean it himself.

5 Harpreet Singh was a resident of India who was visiting Australia on a dependant spouse visa. As I shall explain shortly, he left the country before the committal and has been cross-examined upon his statement.

6 Mr Rose S.C., who appears with Ms Sharpe for the prosecution, seeks to tender the Harpreet Singh statement as an exception to the hearsay rule. He relies on s 65 of the Evidence Act 2008 ('the Act'). He submits that the maker of the previous representations is not available to give evidence about the asserted facts that I have outlined a moment ago (s 65(1)). If I am satisfied of this proposition, Mr Rose further submits that s 65(2)(c) is engaged. To that end he submits it is highly probable that the representations are reliable. Mr Rose does not contend that the previous representation was made 'when or shortly after the asserted fact occurred' and so s 65(2)(b) need not be considered.

7 It is common ground that the onus rests with the prosecution to demonstrate the engagement of both s 65(1) and s 65(2)(c). Mr Thomson, who appears for Mr Aujla, and Mr Matthews, who appears for Mr Amandeep Singh, oppose the application. In short, they submit:

(1) Mr Harpreet Singh cannot be said to be 'not available to give evidence' as required by s 65(1);

(2) It cannot be said that the previous representations were "made in circumstances that make it highly probable that the representations are reliable" as required by s 65(2)(c); and

(3) Even if the evidence clears these two hurdles, the danger of unfair prejudice outweighs the probative value of the evidence and s 137 of the Act operates to require its exclusion.

Is Harpreet Singh not available to give evidence?

8 Clause 4 of Part 2 of the Act's Dictionary provides an exhaustive list of circumstances in which a person will be taken not to be available; "if none of the circumstances apply the person is taken to be available".[1] Relevantly, a person is taken to be unavailable to give evidence about a fact if:

4 (1)...

(c) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(d) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success; or

(2) In all other cases the person is taken to be available to give evidence about the fact.

9 The circumstances, outlined in Clause 4 Part 2 as I have said, are exhaustive but they are not cumulative. It is sufficient for Mr Rose's purposes that he demonstrate one of (c) or (d) although often there will be significant overlay between the two.

10 Detective Senior Constable Morgan gave evidence on a voir dire about his efforts to secure Harpreet's attendance or alternatively to compel it. I regarded Detective Morgan as an impressive witness. I shall summarise his evidence, again as briefly as I can. He became aware that Harpreet Singh was a potential witness on 9 December 2010. He spoke to him on 13 December 2010 and arrangements were made for him to attend at Narre Warren Police Station on 15 December 2010. Harpreet attended with a friend and it became apparent a Punjabi interpreter would be required. In his notes, Mr Morgan sets out the product of a conversation he had with Harpreet using the friend as an informal interpreter. It is similar but not identical to what subsequently appeared in Harpreet's police statement. An arrangement was made for Harpreet to attend the next day and a professional interpreter was booked. The arrangement was cancelled because Mr Morgan became occupied in another investigation processing 'multiple offenders'. I accept this as reasonable.

11 A further arrangement was made for 31 December 2010 but this time it was postponed because of a personal commitment of Harpreet. The statement was ultimately taken from Harpreet on 4 January 2011 with the services of a professional interpreter.[2]

12 The statement was included in the hand up brief served on each accused and notices requiring the witness for cross-examination were served by those acting for both accused.

13 Mr Morgan spoke to the witness on 10 May 2011 and it was indicated to him that Harpreet's dependant spouse visa was to expire in September 2011, but had been extended to November 2011. As the committal was set down for 10 October 2011, Mr Morgan concluded, reasonably in my view, that visa expiry would not be an issue for the committal at least.

14 For a time Harpreet disappeared from view. It is unnecessary to set out his movements, nor the efforts by Mr Morgan to trace him, save to say they were diligent. As at 20 September 2011, a 'person whereabouts' with the Department of Immigration confirmed that the witness was still in the country. The committal came and went with Harpreet uncontactable and unsubpoenaed. In November, the witness was traced to a caravan park in the Robinvale area by a police officer, but had left that address and gave no forwarding address. In January 2012, Mr Morgan tried a supposed telephone number for Harpreet that had diverted to message bank on the previous occasions that he had tried it. To his surprise Harpreet Singh answered the phone, and no doubt to his greater surprise made himself available for service of a subpoena on 13 January 2012, which duly arrived.

15 Thus, by January 2012, Mr Morgan had Harpreet's new address, a telephone number and had served a subpoena on him returnable for this trial commencing 7 May 2012.

16 By 5 May 2012, Harpreet had again disappeared into the ether. Mr Morgan contacted Harpreet's friend Mandeep Singh who advised him that Harpreet had retuned to India in April 2010 to attend to his sick mother. A check with the Department of Immigration confirmed that Harpreet had left the country on 20 April 2012. Using Mandeep Singh as a conduit, Mr Morgan ascertained Harpreet's contact details in his Punjabi village. He spoke to Harpreet through an interpreter on 11 May 2012 and was advised that Harpreet was intending to return to Australia on or about 15 July 2012. Harpreet indicated he would be prepared to give evidence in this trial by videolink. Mr Morgan emailed Harpreet's statement to him and on 15 May 2012 a videolink to this Court was connected and Harpreet Singh attended. Unfortunately, proceedings that day were aborted due to an unsuitable interpreter.[3] Mr Morgan sought to contact Harpreet immediately after by telephone but since that time has been unable to contact him. He has been advised by Mandeep Singh that Harpreet's mother had been taken to hospital with complications relating to her heart and that he would not be able to attend a further videolink scheduled for the next day, 24 May 2012. Further efforts were made to secure Harpreet's attendance on 24 May 2012, but they have been unsuccessful.

17 For my part, I regard the efforts made by Mr Morgan to secure Harpreet's attendance as more than reasonable and, in fact, diligent and conscientious. I am also satisfied that Mr Morgan took all reasonable steps to compel Harpreet to give evidence but without success. A valid subpoena was served on 13 January 2012. There is little more a police officer can do in these circumstances that use the only instrument of lawful compulsion that he has available - a subpoena - to endeavour to compel the attendance of a witness. And that is what he used.

18 Mr Thomson and Mr Matthews have advanced various hypothetical further steps that Mr Morgan may have taken. I raised in discussion with Mr Thomson that the Act does not impose a requirement of perfection, but merely that conduct be reasonable. As I have said, I consider that Mr Morgan's efforts warrant an adjective a good deal more complimentary than that.

19 Various cases were cited to me in which examples of 'real unavailability' were said to be demonstrated. I consider little can be gained from an examination of such cases.

20 I am satisfied that s 65(1) is met and that Harpreet Singh is not available at this criminal proceeding to give evidence about asserted facts.

Is it highly probable the representations are reliable?

21 Section 65(2)(c) imposes a different and higher threshold of admissibility than that in s 65(2)(b).[4] Mr Rose accepts, as he must, that the fact that this statement has never been the subject of cross-examination is a factor that I may consider when assessing the high probability hurdle that he confronts. A number of observations can be made about these previous representations:

(a) This is more than one simple assertion of fact, such as for instance, 'he stabbed me.' The representations amount to, in effect, a narration of several hours of activity at three different locations. The potential for innocent mistake over detail is higher the more complex the activity that the representations describe;

(b) There is some external support for the assertion of fact made in the witness statement.

(i) In his record of interview Amandeep Singh admitted that his white van was left overnight at a location somewhere near the area from where Harpreet describes it as being recovered. This is of course evidence only in the trial against Aujla, although there is also some imprecise support for it from Constable McMullin.

(ii) Police executing a search warrant found the black Holden in the Hammond Road factory. Floor mats were found out of the car but not in the location Harpreet describes.

(iii) As I have observed already the Europcar truck was returned to Europcar at the time described by Harpreet.

(iv) Other less contentious aspects of Harpreet's evidence are also supported by other evidence in the case, such as the locations of Aujla's home and businesses, the location of Amandeep's house and similar.

(v) As I have observed earlier, in his initial conversation with Detective Senior Constable Morgan on 15 December 2010, Harpreet Singh gave an account that was similar to that which became his statement. It differed in one respect. Amandeep Singh, according to the statement, stood by the Holden while Aujla cleaned the interior with a cloth. On 15 December, Harpreet said they both cleaned the interior of the car.

(vi) In his statement, Harpreet asserted that he spoke to Jagman Deol on 8 December 2010. That is before he had given this account in any form to police. Another witness in this case, Bacchittar Singh, has told this jury that he made a false statement to police implicating Aujla and Singh and that he did so as a result of intimidation from Deol. This intimidation is said to have occurred on 8 December 2010.

22 Section 65(2)(c) provides that the hearsay rule does not apply if the representation was made in circumstances that make it highly probable that the representation is reliable. In R v Mankotia,[5] Sperling J articulated the view that the circumstances referred to are limited to the circumstances in which the representation was made in the sense of its factual setting at the time. Subsequently, courts have expressed the view that other available evidence as to all the circumstances in which the representation was made is relevant to this assessment[6]. The assessment relates, however, to the circumstances in which the statement was made. Thus a judge's task in considering this type of application is not to offer his or her assessment of the probability that the representation is reliable, but to provide his or her assessment of the circumstances in which the statement was made.

23 Thus my assessment of the circumstances in which the statement was made takes no account of fact that the statement is not contested by cross-examination. I do not consider that that is a circumstance that relates to the making of the statement. It may attach to my assessment of the reliability of the statement but that is not to the point in this part of the exercise. The statement is made on oath, it has some external support for its truth, an interpreter was used (I leave to one side an issue that may have to be determined relating to this interpretation) and the witness was recounting events that occurred only a week or so earlier. I consider that the statement was made in circumstances that make it highly probable that the representation is reliable.

Section 137

24 I am obliged to refuse to admit evidence adduced by the prosecutor if the probative value is outweighed by the danger of unfair prejudice to the defendant. Probative value of evidence is defined in the Act's dictionary as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.

25 As I have observed earlier, the assertions of fact made by Harpreet Singh, if accepted, advance the Crown case significantly. Aujla's conduct in cleaning his car may be considered by the jury to be an implied admission of guilt by post-offence conduct. Harpreet's assistance in retrieving Amandeep Singh's car on the day of the crime from a location near the crime scene is also important to the prosecution case, although Amandeep Singh effectively admits that his car was retrieved from near the crime scene at any event.

26 In considering the probative value of the Harpreet statement I do not take into account any matters relating to Harpreet's credibility or reliability.[7] Nor could I even if such an approach were permitted, as Harpreet's statement, and more broadly his general credit, has not been contested in any way.

27 I regard the probative value of the impugned evidence as high. Any degree of unfair prejudice must be assessed in the light of warnings or directions that may remove or reduce that danger.[8] It will be the residual danger, if there is one, that is the subject of the s 137 measuring exercise.

28 In this case, I can give the jury a strong hearsay warning. I can point out to the jury that the evidence has not been contested by the barrister's tool of cross-examination, that they have no appreciation of the witness's demeanour and other such matters.

29 In the particular circumstances of this case, none of this is enough in my view to reduce the danger of unfair prejudice to an acceptable level.

30 If the Harpreet Singh statement is adduced into evidence by the prosecution it will be before the jury in completely untested form. It is clear from Harpreet's statement that he spoke to Jagman Deol before making his statement to police. As I have observed earlier, the jury have already heard that Deol intimated Bacchittar Singh into falsely implicating both accused, and Bacchittar did so in his last two police statements. My views on Bacchittar's credibility on this issue are irrelevant. It is open to the jury to accept that Deol behaved towards Bacchittar in the way Bacchittar alleged. If the statement is admitted, both accused will have lost the opportunity to confront Harpreet with that evidence and to enquire as to whether he had been similarly intimidated. Additionally, the defence have lost the opportunity to explore more broadly aspects of Harpreet's credibility and reliability.

31 In the context of Harpreet's place in the case, I regard these losses as critically important to the outcome of this application. I regard those losses as being either incurable by direction or inadequately treatable by direction.

32 Accordingly, and after anxious consideration, I consider the danger of unfair prejudice outweighs the probative value of the evidence sought to be adduced and I refuse its admission.

33 I should add that there is no suggestion that Harpreet was in any way prevailed upon by any party to become as elusive as he is.

[1] The New Law of Evidence, Anderson Williams and Clegg. Lexis Nexus 2nd edition 2009, pg 226.

[2] The professional qualifications of the interpreter are in dispute. I have indicated that should this issue need to be resolved I will entertain further evidence and argument.

[3] The interpreter had an Indian qualification as a level 3 translator. She was not qualified as an interpreter.

[4] The New Law of Evidence, Anderson Williams and Clegg. Lexis Nexus 2nd edition 2009, pg 232; Conway v R [2000] FCA 461; (2000) 98 FCR 204 at [142] per Miles, Von Doussa and Weinberg JJ.

[5] [1998] NSWSC 295.

[6] (see Conway v R [2000] FCA 461; (2000) 98 FCR 204; Williams v R [2000] FCA 1868; (2000) 119 A Crim R 490; R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603)

[7] (see R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; R v Adams [2004] NSWCCA 279)

[8] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228.