The Accused is charged with murdering Bradley Dillon on 11 August 2014. The Crown now seeks to lead hearsay evidence of a witness Kale Turner on the basis that Kale Turner is not available to give evidence. A Notice under s 67 of the Evidence Act 1995 (NSW) was given on 1 November 2016.
The evidence sought to be adduced is contained in a statement made by Mr Turner to the NSW Crime Commission on 25 May 2015. As paragraph 5 of the statement makes clear the statement was an induced statement made after police investigating the deceased's death attended at Mr Turner's unit to enquire about his knowledge of the deceased's murder. It has been agreed between the Crown and those acting for the Accused that much of the material contained in the statement will not be adduced. The material sought to be adduced consists of some background information showing how Mr Turner came to meet the Accused. This happened by virtue of their membership at a Fight Gym called "St Michael's Christian Fight Club" in Petersham or Lewisham. Mr Turner knew the accused as Beaver although he also knew his correct first name was Diego. On the apparently few occasions on which Mr Turner met or saw the Accused it was through a mutual friend with whom Mr Turner shared a flat called Tom Sayer.
The particular evidence which the Crown seeks to adduce is as follows:
37. I don't remember the exact date but it was either the same night as the murder of Dillon or the night or two after, …
39. Either Tom or I received another call from Beaver. I can't remember if Beaver spoke to me or Tom but he said, "It's Beaver. It's Important I'll be at your in 10 mins (sic). Can I come past?" I agreed. Beaver sounded normal.
…
40. Not long after within minutes, the door buzzer started ringing. Our unit was on level nine. It was Beaver on the intercom from the front security door.
He said, "Do youse have money? Come down you have to pay for the cab." Tom went down. Next thing, I heard both Beaver and Tom getting out of the lift on our level and they walked into the unit.
41. As soon as Beaver walked in he said, "Some hectic shit went down. We fucked this guy up. We were in a fight with a guy from school. I was into it with this guy. [Tones] comes in and shot him." Beaver always referred to Tony [Tony Bang] as 'Tones,'
I was shocked and said, "Where did this happen?"
Beaver said, "Leichhardt."
I said, "Where is Tony?"
He said, "Tony has left the country."
I said, "What the hell are you still doing here?"
He said, "I'm planning to go overseas as well. Come I'll show ya on the news."
He picked our Foxtel remote and was trying to show us the news item but he couldn't.
42. Bever (sic) said, "Tones said I might be able to get money off you guys. He's gone overseas." Bever (sic) was sounding erratic. We did not ask him why he wanted cash and we assumed that he needed the cash to get away
R v Carbone [2016] NSWSC 1591 | Case summary | Zoe
The remainder of the evidence sought to be adduced concerns Mr Turner and his flatmate Tom giving the Accused about $1,500 or $1,800 that they had in the house.
Section 65 of the Evidence Act 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.
Clause 4 of the Dictionary sets out the situations where a person is taken not to be available to give evidence as follows:
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:
(a) the person is dead, or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or
(d) it would be unlawful for the person to give the evidence, or
(e) a provision of this Act prohibits the evidence being given, or
(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.
The s 67 Notice seeks to rely on s 65(2)(d). The Crown submitted that the representation was against the interest of Mr Turner because it tended:
To damage the person's reputation; Mr Turner discloses his use of drugs, association with St Michael's Fight Club and involvement in criminal activities;
To show that the person has committed an offence for which the person has not been convicted; Mr Turner admits to participating in the supply of drugs. The statement also refers to and discloses knowledge of the murder of Bradley Dillon, which would constitute the offence of Concealing a Serious Indictable Offence.
The Crown submitted that Mr Turner was not available because:
(f) All reasonable steps had 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.
The Accused opposes the admission of the evidence.
It is necessary for the Crown to establish:
(a) That Mr Turner is not available to give evidence within the meaning of clause 4 of the Dictionary to the Evidence Act; and
(b) That the provisions of s 65(2)(d) have been made out.
[2]
Unavailability of the witness
There is a statement from Senior Constable Marie Sawtell from the Queensland Police Service. She said that on 24 October 2016 she attended at an unnamed address and spoke to two persons who said that they were Mr Turner's parents. Her statement said that she asked them of the whereabouts of Mr Turner. The statement then goes on to say:
[The mother] stated to me that Kael (sic) is overseas but would not disclose his location, Kale has received an email from NSW police but will not respond to it as he and his family are of the belief that because he gave evidence to the crime commission he was further told he did not have to give any further evidence.
Kael (sic) has apparently been contacted by persons involved in the court matter being a murder and although no direct threats have been made they have made it clear they know where he lives and where his family are - these persons have approached Kael (sic) as they want to know what he has said to the crime commission. After this Kael (sic) has left the country leaving the family in turn quite fearful of any retribution that may occur.
An email from the Officer in Charge of the investigation, Detective Sergeant Hunt, to the DPP disclosed that investigations with the Immigration Department showed that Mr Turner had departed Australia on 11 June 2015 and had not returned. That was consistent with information obtained from an estate agent that Mr Turner and his girlfriend had moved out of premises they were renting in about June 2015.
Email addresses were obtained for Mr Turner and his girlfriend and on 19 October 2016 another officer of the Homicide Squad sent an email to Mr Turner informing him that the trial was due to commence on 7 November, that it was believed Mr Turner might be residing in the United Kingdom, that he was required to give evidence and that arrangements could be made to do this via AVL. The officer asked for Mr Turner to contact her at his earliest convenience.
Mr Turner replied by email on 28 October 2016 and said this:
Unfortunately I won't be able to assist on this. I've been trying for quite some time now to break all ties with everyone from that gym and my involvement now would only cause my family and I significant stress and concern. Because of this I will not be of any value to the case. I really hope you can please understand.
Detective Hunt gave evidence before me on the application. His evidence was that he first found out two weeks ago that Mr Turner had left Australia in June 2015. He understands that Mr Turner is travelling around Europe but he does not know where he is. He has no address for him.
Although, in the first instance, it might be thought that making attempts to have a witness attend to give evidence some two or three weeks before a trial does not demonstrate that all reasonable steps have been taken, the circumstances of Mr Turner's whereabouts must be considered. Even if the Crown had sought some months earlier to locate Mr Turner and make arrangements for him to give evidence, whether by AVL, or by being brought home to do so, it seems clear that the outcome would have been the same as it now is. Mr Turner appears not to want to give evidence and will not co-operate to enable that to occur.
A similar situation arose in R v Kazzi; R v Williams; R v Murchie [2003] NSWCCA 241; 140 A Crim R 545. That was an appeal by the Crown pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against the decision by the trial judge refusing to admit the evidence of a statement by a Mr Gujral who was unable to be found. It seemed that Mr Gujral was somewhere in India and, although the police made extensive inquiries about his whereabouts within Australia, they did not make enquiries about his whereabouts in India.
Justice Ipp (Grove and Dowd JJ agreeing) said:
[10] On behalf of the respondents, it was forcefully submitted that the police had been neglectful in only commencing their inquiries on 26 July 2003. The trial commenced on 5 August 2003 and, as I have pointed out, Mr Gujral had left Australia nearly two years before that date.
[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.
[13] Thus, in my opinion, the delay on the part of the police in making inquiries does not constitute a failure to take reasonable steps within the meaning of cl 4(1) of Part 2 of the Dictionary to the Evidence Act.
In circumstances where it seems only to be speculated where Mr Turner is or was at any given time, the Crown does not fail by showing that all reasonable steps have not been taken notwithstanding the fairly recent commencement of their enquiries.
[3]
Is s 65(2)(d) satisfied?
Section 65(2)(d) has recently been considered by the High Court in Sio v The Queen [2016] HCA 32; (2016) 90 ALJR 963. The Court there stressed that a compendious approach to the evidence sought to be adduced does not conform to the requirements of the Act. Attention needs to be given to each relevant fact sought to be proved by tendering the evidence under s 65. The Court said:
[56] It may also be noted here that s 65(2)(b) makes it clear that when the provisions with which it is collocated speak of "a representation", they are speaking of the particular representation that asserts a relevant fact sought to be proved. That this is so is confirmed by s 65(2)(d)(i), which requires that the representation tendered against the other party is able to be seen to be against the interest of the maker of the statement.
[57] It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.
[58] It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.
…
[60] It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion. Further in this regard, the present case is a case in which, had Mr Filihia pleaded not guilty, and he and Mr Sio been tried together, Mr Filihia's hearsay statements would not have been admissible in that trial against Mr Sio. That is because s 83 of the Evidence Act preserves the exclusionary operation of the hearsay rule in respect of evidence of an admission by a co-accused.
[61] The serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge and the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.
…
[63] Section 65 gives effect to the view that the circumstances of the making of an out of court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable - and the asserted fact likely to be true - notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that "the dangers which the rule seeks to prevent are not present or are negligible in the circumstances". In such a case, "there is no basis for a strict application of the rule."
…
[72] Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v The Queen [[2016] HCA 14; (2016) 90 ALJR 529 at [54]], s 65(2)(c) and (d) and s 85 provide "[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence". It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.
In the present case, the significant representations sought to be relied upon are those contained in paragraphs 41 and 42 of the statement. It is apparent that, when what is there set out in that statement is regarded separately, it cannot be said that the representation was against the interests of Mr Turner by reason of his involvement with drugs, the St Michael's Fight Club or other involvement in criminal activities. There is simply nothing in the conversation recorded that relates to those matters. In any event, there is nothing in the statement which suggests any criminality or wrongdoing associated with the Club, nor is there anything else in the statement concerning wrongdoing on Mr Turner's part except for his involvement with drugs.
On the other hand, the statement suggests that, having received the information he did about the shooting of the "guy from school" Mr Turner did not, until he made the statement now sought to be adduced in evidence, take any action to report the involvement of the Accused or Tony in a serious indictable offence. Moreover, Mr Turner said that he assumed that the Accused wanted the money he asked for and was given "to get away". That would make Mr Turner an accessory after the fact to the offence constituted by the shooting.
I am satisfied, therefore, that the representation in paragraph 41 of the statement was made against the interests of Mr Turner at the time it was made. It is also necessary for the Crown to show that the representation was made in circumstances that make it likely that the representation is reliable.
Detective Baskar, who in 2015 was with the Homicide Squad, gave evidence about the making of the statement. He said that Mr Turner wanted to make an induced statement because of concern about his own involvement in drugs and his association with drug dealers. Detective Baskar said that Mr Turner had a criminal record but he did not know for what offences he had been convicted.
The Crown points to other evidence in the brief of evidence to point to the reliability of the information provided. That evidence shows the presence of the accused at the scene including DNA evidence. It shows evidence of intended flight and other evidence of the money the accused had at the airport when he attempted to leave Australia. The Crown submits that what was said by Mr Turner in paragraphs 41 and 42, when he did not know about the DNA evidence or the finding of money on the Accused at the airport, is consistent with that other evidence and therefore points to its reliability.
When viewed as a whole in that way there is some support for its reliability but as noted earlier the High Court said it is necessary to consider each particular representation relied upon. The most significant is what is contained in what Mr Turner asserts the Accused said in the first three lines of paragraph 41 which was this:
As soon as Beaver walked in he said, 'Some hectic shit went down. We fucked this guy up. We were in a fight with a guy from school. I was into it with this guy. Tones comes in and shot him'. Beaver always referred to Tony as Tones.
This will be relied upon by the Crown as evidence of involvement in a joint criminal enterprise. Other evidence that the accused was present or that his DNA was found in the places it was does not point to the reliability of those inculpatory statements.
Further, the fact the statement was induced because of concerns by Mr Turner about his own position, his involvement with drugs, his assistance to the accused, and his failure to report a serious indictable offence, do not necessarily lead to a conclusion of reliability. Indeed the contrary may be true. In Sio the Court said at 65:
Evidence by an accomplice against his or her co-offender has long been recognised as less than inherently reliable precisely because of the perceived risk of falsification. Statements by an accomplice afford a classic example of a case where a "plan of falsification" may be expected to be formed, given the obvious interest of one co-offender to shift blame on to his or her accomplice especially where the circumstances also include the opportunity to seek to curry favour with the authorities. That the evidence of accomplices is evidence apt to be unreliable by reason of a motive to shift blame to the co-offender is recognised by s165(1)(d)of the Evidence Act which expressly treats it as "evidence of a kind that may be unreliable" evidence.
Although Mr Turner was not a co-offender he was to some extent an accomplice by what he did and failed to do after the accused spoke to him following the altercation with the deceased.
There is certainly nothing in the timing of the making of the statement which points to reliability. It was not, as in Sio, so contemporaneous with the events that made it unlikely that the statement was a fabrication (as in s 65(2)(b)).
I cannot be satisfied from the paucity of the evidence that the representation was made in circumstances that make it likely that it was reliable.
Even if s 65(2)(d) had been satisfied it would be incumbent upon me to take into account the matters in s 192(2) and in particular paragraph (b) being the extent to which the right to rely on the statement would be unfair to the Accused. Coupled with that is the necessity of refusing the admission of evidence in s 137 if the probative value is outweighed by the danger of unfair prejudice to the Accused. The probative value is high but, for that very reason, the unfair prejudice to the Accused in not being able to test the evidence is significant. As the High Court said in Sio at [60]:
It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion.
On one view there is a lower threshold of unfairness under s 192(2)(b) that is involved in the balancing exercise under s 137 which in any event concerns unfair prejudice.
In any event two matters in particular satisfy me that unfair prejudice would be caused to the Accused by the admission of the statement. First, Mr Turner's credit would a significant issue, given his background and involvement with drug dealers, his behaviour after the post offence contact with the Accused, his criminal record and his knowledge asserted by the defence of the deceased's involvement with drugs.
Secondly, and significantly, the Crown has said it is not calling Tom Sayer who was Mr Turner's flatmate and who, according to Mr Turner's statement, was present at the time of the crucial event and conversation recorded in paragraphs 41 and 42. The absence of Tom Sayer adds further unfairness to the Accused's position if this statement is admitted.
The Crown submitted that any unfairness or unfair prejudice could be met by clear direction to the jury concerning the fact that Mr Turner's evidence has not been tested. Although the Court of Criminal Appeal has said more than once that it is necessary to work on the basis that juries obey directions given to them, any direction here would involve an evaluative judgment on the weight to be given to untested evidence and in circumstances where the recipient of the inculpatory statement is not called.
In my opinion the requirements of s 65(2)(d) are not satisfied, and even if they were I would refuse to admit the evidence by reason of its unfairness to the Accused and because its probative value is outweighed by unfair prejudice.
[4]
Amendments
13 October 2017 - Publication restriction removed.
17 November 2017 - Para [11] amended to anonymise name of mother. Publication restriction removed.
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Decision last updated: 17 November 2017