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Judgment

1. The Crown sought to have admitted into evidence extracts from the transcript of an interview of Andre James at the New South Wales Crime Commission in about March 2013. After hearing argument, I indicated that I would reject the tender of the evidence and give reasons later. These are my reasons.
2. The evidence from Detective Senior Constable Luke McAneny was that Mr James is at an unspecified address in the Las Vegas area in the USA and had said that he was not prepared to return to Australia to give evidence. On that basis the Crown relied on s 65(2)(a), (c) and (d) of the Evidence Act 1995 (NSW). The admission of the evidence was opposed by all of the accused.
3. There were two substantive aspects to the evidence. The first concerned the purchase by Mr James of a black Mitsubishi Triton formerly owned by Michael Basanovic. The second matter concerned what Mr James had been told by Michael Basanovic about what happened at the shooting of the deceased. There was also some relatively unimportant evidence about Mr James, who is a friend or acquaintance of both Michael and Wade Basanovic, collecting some clothes and picking up some medication from a chemist for Michael Basanovic.
4. Two issues needed to be determined. First, was the evidence, although hearsay, admissible under the provisions of s 65(2)? If it was, was its probative value outweighed by the danger of unfair prejudice pursuant to s 137 of the Evidence Act?
5. Section 65 relevantly provides: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (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: (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. Note. Section 67 imposes notice requirements relating to this subsection. … (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. … Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons
6. Clause 4 of the Dictionary provides: 4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: … (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or (g) 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. (2) In all other cases the person is taken to be available to give evidence about the fact.
7. The evidence from Detective McAneny was that the enquiries in relation to finding Mr James commenced on 23 July 2015. Enquiries were made through the New South Wales police computer system and through Roads and Maritime Services. An address at [XX] Gordon Avenue, Summerland Point was identified and another police officer attended those premises on 25 July 2015 for the purpose of serving a subpoena. A woman at the house who identified herself as an ex-partner of Mr James said that he was not living at that address and was living somewhere in Sydney. She provided a mobile phone number for him and she told the police that he had been travelling out of the country on a regular basis.
8. Since 25 July 2015 Detective McAneny had been telephoning Mr James on the number provided. The first time he was able to speak to him was on the morning of 12 August 2015, that is, the day before this application was made.
9. Mr James informed Detective McAneny that he was currently in the United States of America.
10. Detective McAneny spoke again to Mr James on the morning of 13 August 2015. He asked Mr James if he would be prepared to return to Australia to provide evidence in the matter and Mr James said he would not. He said he was not sure when he would be returning to Australia and he would not be prepared to give evidence via audio visual link. He was not prepared to leave the United States at least until after his fiancé, who was pregnant, had given birth. He would only confirm that he was in the Las Vegas area but did not provide any address.
11. Detective McAneny said he had had no contact with Mr James since Mr James appeared before the Crime Commission in March 2013. The reason no contact was made prior to 23 July 2015 was because his name did not appear on the witness list or the subpoena list that he was given.
12. The Crown accepted that it would be necessary to get some certification of the transcript from the Crime Commission since it is not signed by Mr James. However, the argument proceeded, and for the purpose of this judgment I will consider the matter, on the assumption that the transcript will be so certified.
13. The Crown submitted that at the time Mr James was interviewed by persons at the New South Wales Crime Commission he was under a duty to make the representations contained in the transcript. Further, because it was made in circumstances where he was required to answer questions and to tell the truth it was highly probable that the representations were reliable. In any event, it was submitted that it was against Mr James' interests to make the representations and it was made in circumstances that made it likely that the representations were reliable.
14. The Crown submitted that Mr James was not available to give evidence because all reasonable steps had been taken by the Crown to find Mr James or to secure his attendance but without success. In that regard the Crown relied on the judgment of the Court of Criminal Appeal in Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241; (2003) 140 A Crim R 545. In that case the trial commenced on 5 August 2003 and the police only commenced their enquiries to find the witness on 26 July 2003. Nevertheless, the Court of Criminal Appeal held that the delay on the part of the police did not constitute a failure to take reasonable steps within the meaning of clause 4(1) of the Dictionary to the Act.
15. The Crown accepted that the subpoena to Mr James should have issued earlier and the request should have been made much earlier. However, it was submitted, if the Crown had managed to subpoena the witness that would not have prevented him from leaving the country which was likely given what he has said about his fiancé who is due to give birth.
16. In relation to s 137 the Crown submitted that the evidence of what Michael Basanovic said to Mr James had significant probative value because it is a prior inconsistent statement by Michael Basanovic. It was not made clear what other statement this reported evidence of Michael Basanovic would be inconsistent with. It would, however, be inconsistent with the evidence which Wade Basanovic's counsel said would be given by Wade Basanovic (and possibly Michael Basanovic) at the trial. It was apparently inconsistent with what the Crown witnesses present at the shooting have said. The Crown submitted that for the prejudice to be unfair there must be a risk that the evidence would be misused. Reference was made to Regina v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228.
17. In an email from the Crown to my associate, received the day after the matter was argued, the Crown relied on R v BD (1997) 94 A Crim R 131 at 139, R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 and R v Papakosmos [1999] HCA 37; (1999) 196 CLR 297 rather than on Shamouil.
18. The submissions on behalf of all of the accused did not contest that s 65(2) was applicable in respect of the paragraphs relied upon by the Crown. Their submissions, however, were principally directed to what they said was the failure on the Crown's part to take reasonable steps to secure Mr James' attendance. The result was, it was submitted, that Mr James could not be said to be unavailable for the purposes of s 65. They also pointed out that no Notice had been given under s 67. They said that they were prejudiced by the lack of a Notice because they may have been able to locate and secure the attendance of Mr James themselves. Reference was made to Quintano v B W Rose Pty Ltd [2008] NSWSC 1012; (2008) 186 A Crim R 448.
19. The accused submitted also that even if the transcript was otherwise admissible the Court should reject it because of the unfair prejudice the accused would suffer. Where the material was relied upon as a prior inconsistent statement an inability to cross-examine Mr James would amount to unfair prejudice. Any direction to the jury to take care in the assessment of the evidence in the transcript and the weight to be accorded to it would be insufficient to overcome the unfair prejudice.
20. The accused submitted that the material in the transcript concerning the disposal of the Mitsubishi Triton was of low probative value.
21. In my view, the provisions of s 65(2)(a), (c) and (d) are made out. Mr James was, by virtue of the nature of the examination at the Crime Commission (s 27 Crime Commission Act 2012 (NSW)), under a duty to make a representation of the kind that he did. A combination of ss 25, 27 and 39 of the Crime Commission Act renders it highly probable that the representations were reliable.
22. Although the representations concerning the acquisition of the Mitsubishi Triton might be thought to be against the interests of Mr James and were made in circumstances that make it likely that those representations are reliable, it does not seem to me that the representations concerning what Mr James was told by Michael Basanovic about the shooting of the deceased could be said to be against Mr James' interests. In that way s 65(2)(d) is not satisfied for those representations. Nevertheless, I consider that in respect of both groups of representations paragraphs (a) and (c) of s 65(2) are satisfied.
23. In my opinion Mr James cannot be considered to be a person who is not available to give evidence because the Crown has not demonstrated that all reasonable steps have been taken to secure his attendance. The Crown sought to draw a distinction between what steps were actually taken on the one hand and when those steps were taken on the other, to support the contention that the steps were reasonable. I do not think that such a distinction can be made. Whilst it is arguable that one would only have regard to the steps taken if the enquiry was whether such steps were reasonable steps "to find the person", I do not consider that the timing of the steps can be disregarded when the enquiry is whether all reasonable steps have been taken "to … secure his … attendance". In one sense, Mr James has been found because telephone contact was twice made with him although his precise location has not been identified. However, that is only a preliminary matter to what the true enquiry is. The true enquiry is whether all reasonable steps have been taken to secure Mr James' attendance.
24. I do not consider that Kazzi provides support for the Crown's position. The reason the Court of Criminal Appeal concluded that the delay on the part of the police in making enquiries did not constitute a failure to take reasonable steps is to be found at [11] and [12] of the judgment where the following appears: [11] I accept the submission that the police should have commenced making their inquiries at a far earlier date, particularly having regard to the fact that the case was listed for trial last year. However, any inquiries made by the police at a time earlier than August 2001, as regards Mr Gujral's whereabouts in Australia, would have proved to be fruitless. [12] The information as to Mr Gujral's whereabouts in India is non-existent. It is not even known in which city he resides. It would have been a lengthy and expensive task for the police to make appropriate inquiries as to his whereabouts in that country. In my view it was not incumbent on the police to make inquiries in India. I do not mean to suggest, in expressing this view, that the police would never be required to attempt to ascertain the whereabouts of a witness, once it was learned that that witness was in another country. In the particular circumstances of this case, however, where nothing was known as to the individual's address or business or family, and where the country concerned was as large and as populous as India, I think it is understandable that the police did nothing more.
25. The position in the present case can be compared to Kazzi. The trial was fixed on 5 February 2015 to commence on 27 July 2015. There was evidence that until a few weeks before the trial commenced Mr James was in Australia although he was travelling out of Australia from time to time. In Kazzi it was accepted that if enquiries had been made by police at an earlier time they would have proved to be fruitless. That was not the position in the present matter. Had the appropriate enquiries been made in the months between February and July the likelihood is that the police would have ascertained Mr James' phone number, as they ultimately did, and would have been in a position to serve him with a subpoena to give evidence at the trial. Even if, as the Crown asserted, Mr James had left Australia notwithstanding the service of the subpoena it would then have been difficult to maintain that reasonable steps had not been taken to secure his attendance. The service of a subpoena on a witness is a reasonable step.
26. On Detective McAneny's evidence the fault appears to lie with the DPP because Mr James did not appear on the witness list and the subpoena list that were provided to the police. No evidence was given by anyone from the DPP. In those circumstances Detective McAneny's evidence must be accepted.
27. Nevertheless, regardless of fault, there is no evidence from the Crown of any steps taken earlier than 23 July 2015 (three business days before the trial was due to commence) and no other explanation has been provided for that omission.
28. In my opinion, s 65(1) has not been satisfied.
29. Even if the evidence was admissible under s 65 it would be necessary to engage in the weighing exercise required by s 137.
30. The parties seemingly agree that the representations concerning the acquisition of the Mitsubishi Triton are not of high probative value partly, at least, because there is other evidence of the sale of the motor vehicle by Michael Basanovic to Mr James within days of the shooting. There is no direct evidence in the transcript linking the sale of the motor vehicle to the shooting although, at the time Michael Basanovic asked Mr James if he wanted to buy it, Mr James was aware of Michael Basanovic's involvement in the shooting. The highest the evidence went was the following passage: Q. And when he asked you - I'll withdraw that. How did he ask you to take the ute? A. He said, "Can you keep this at your place for a little bit?" Q. And where were you living at the time? A. Cronulla. Q. And was this a face to face conversation? A. Yes Q. And did you ask him why? A. He said it might be a bit hot. Q. And what did you understand that to mean? A. That it could be getting looked at by the police.
31. I consider that the evidence in relation to the acquisition by Mr James of the Mitsubishi Triton has some probative value in showing Michael Basanovic's involvement in the shooting of the deceased but that its probative value is relatively small in the light of other evidence. That other evidence is the acceptance by Michael Basanovic that he was present at the time of the shooting and the evidence demonstrating that the Mitsubishi Triton was a vehicle in which persons involved in going to Dynamic Transport's premises at the time of the shooting travelled.
32. The evidence sought to be relied upon by the Crown showing a prior inconsistent statement has greater probative value. The evidence was this: Q. No. Now, you mentioned earlier in the evidence that I asked you what Mr Basanovic told you in relation to the murder of Mitrovic and you said nothing at that initial meeting. A. No. Q. When did he subsequently provide you with information about his knowledge of that matter? A. Just bits, bits and pieces throughout the time that I was, that I saw him. Q. To the best of your ability, can you tell us what he said about that matter? A. Um… that him and Wade and another person went upstairs to an office Q. The other person, did he tell you who that was? A. Brownie. Q. Do you know who Brownie is? A. No. I've, I've met him a couple of times. Q. Can you describe him to me? A. Tongan. … Q. Right. Okay. Now, so he, Mr Basanovic, told you, he, Wade and Brownie went upstairs to what? A. To, to talk to Steve, was it? And they, they had an argument and the argument heated and they - he told me that Steve tried to lure 'em around the corner to where the offices where. He told 'em to come around, come around and let's speak around here and then it got escalated. I don't know what happened and he said, "Fuck you" and he went to grab something and ... Q. Mm. You're actually indicating - putting hand towards the front of your pants. A. Yep. Q. So are you doing that or did Mr Basanovic show that to you? A. Mr, Mr Basanovic showed that to me. Q. Right. Okay. And so he said Mitrovic said, "Fuck you" and went - put his hand towards the front of his pants. A. Yeah. Q. And then what happened? A. And then um Wade shot him. Q. Okay. Now, did Basanovic Senior, Michael, tell you anything else about that matter? A. That was about it. Q. Did he tell you who was there at the time besides Wade and Brownie? A. He just told me what went, what went on up in the office, I think it was. Q. Do you know if there was anybody else there at the time? A. From what I've read in the paper, yeah I do. Q. And what have you read? A. Just that there were seven men that turned up. Q. Do you know the identities of any of those other people? A. I'm not sure. I, I'm not sure. Q. Have you been told by anybody the identities of other people that were there? A. I've heard something about a guy called Hollywood or... Q. Okay. Anybody else? A. I don't know who else was in there that day.
33. Mr James' account of what Michael Basanovic told him, therefore, has the deceased saying during the argument he had with the three men, "Fuck you" and then has the deceased going to grab something by putting his hand towards the front of his pants. It is at that moment, according to the account Mr James says he was told, that Wade Basanovic shot the deceased.
34. There has been no evidence suggesting that the deceased went to grab something from the front of his pants immediately before Wade Basanovic shot the deceased. The CCTV does not tend to show that any such thing happened. The Crown witnesses present in the office (as I have said) did not give such evidence. The opening made by Mr Edwards on behalf of Wade Basanovic did not suggest that any such thing happened. Mr Korn on behalf of Michael Basanovic did not give an opening address.
35. I mention these matters only to identify what might be thought to be a significant difference in the account of what happened at the time of the shooting as is recorded in Mr James' transcript. In that way, the representations in that part of the transcript can be said to have significant probative value.
36. The unfair prejudice which the various accused point to is that they will not have the opportunity to cross-examine Mr James to test his evidence about what Michael Basanovic is alleged to have told him. That is a significant prejudice because it would mean the jury had before it Mr James' untested evidence of what he claims Michael Basanovic told him. The Crown would then use that evidence of Mr James' to point to inconsistencies in what it is believed Michael Basanovic will say if he gives evidence as seems likely.
37. In Shamouil Spigelman CJ (with whom Simpson and Adams JJ agreed) said: [72] There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair. There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give. (See e.g. R v BD (1997) 94 A Crim R 131 at 151.) (I do not need to refer to the reasoning in some cases that procedural prejudice may be sufficient.) [73] To use the test of McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51]: "It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from their task." (See also R v Lisoff [1999] NSWCCA 364 and R v Yates [2002] NSWCCA 520 at [252].)
38. Both BD and Papaksomos concerned the relationship between ss 66 and 136 of the Evidence Act. Hunt CJ at CL pointed out (at 139) in BD that both ss136 and 137 used the term "unfair prejudice" or a cognate and that the meaning of each must be the same.. He then said what "unfair prejudice" meant, (a view endorsed in Papakosmos at [91]) and that meaning is set out by Spigelman CJ in Shamouil at [72].
39. For the prejudice to be unfair prejudice there must be a real risk that the evidence will be misused by the jury in some way notwithstanding proper directions. In the present case the jury would need to be given a warning under s 165 of the Evidence Act that the evidence may be unreliable because the evidence is untested by cross-examination. The jury would need to be told that they would need to be careful about the weight that they attributed to such untested evidence.
40. One way that the evidence might be misused by a jury is when they are likely to give the evidence more weight than it deserves, as McHugh J said in Festa at [51] (see [37] above).
41. In the present matter I consider that it is likely that the jury would give this evidence more weight than it deserves. The evidence would be coming to the jury as the transcript of an examination Mr James underwent at the NSW Crime Commission where he was required to answer questions and was at risk of prosecution if he gave false evidence. A jury is likely to place some weight on the circumstances that the evidence came into being.
42. Moreover, in the present trial a great deal of evidence has been given by police officers who have read portions of their statements and have not been cross-examined on them. Further, there have been a number of statements of various witnesses read to the jury where those witnesses were not required to be present to be cross-examined.
43. Directions will be given to the jury about all of those matters including a direction that where evidence has not been challenged the jury might consider it to be reliable and able to be accepted. However, the jury would be required to carve out from that direction the evidence of Mr James although it came to them in a similar fashion from other evidence that was unchallenged and could be reliably accepted.
44. According less weight to unchallenged evidence where it was not possible to challenge that evidence for some reason is a difficult task even for judges. There is a likelihood that the jury in the present case, faced with this unchallenged evidence, and in the context of a large amount of other unchallenged evidence which the jury will be told they can accept as reliable, will give more weight to this evidence than it deserves, and in that way there is a real risk that the jury will misuse this evidence.
45. For these reasons I consider that there is unfair prejudice to the accused by the admission of this evidence and that that danger outweighs the probative value of the evidence.