R v MY; R v SP

Reasons for Decision 1MY and SP are charged that on 14 January 2012 they robbed the alleged victim whilst in company and being armed. At the time, MY was aged 12 and SP had turned 11 four days prior. Their matters are on for hearing on 12 December 2012. A brief of evidence has been served on the defence, and thus they have the witness statements. No doubt if this application is successful, then further evidence may be served. The hearings have been delayed due to the unavailability of the alleged victim to give evidence until that date. 2The police have made an application for a forensic procedure, the taking of a photograph of MY and SP for the purposes of having a witness attempt a photo-identification. This matter has now become urgent given the pending hearing date. 3The legal representatives of each young person opposed the application. Accordingly, the matter was set down for hearing at Maclean Local Court on 31 October 2012. 4The applicant is Senior Constable Jeffcoat, who is also the informant in the criminal charge matters. He was called to the stand and the police prosecutor sought to tender his affidavit. Both of the defence lawyers objected to paragraphs eight and nine of the affidavit on the basis that it contains hearsay material. On the voir dire I read the affidavit. It is necessary to repeat paragraphs eight and nine. 8. Approximately 15.47 on Saturday the 14th January 2012, the victim and the witness were both sun baking on Pippie Beach at Yamba. At this time both the victim and witnesses were approximately 300 metres from the lifeguard who was on duty at the time. They were both on the sand however were closest to the edge where the dunes meet the sand. At a point during their leisure activity, the victim was struck in the back of the head with a piece of wood impacting with the victims. A female co-accused has since been charged and pleaded guilty to this offence in the District Court. It is alleged that it was at this time that the two accused young persons SP and MY came over and all three began ransacking the victim's Hessian beach bag. 9. All three young accused persons were seen to run south along the beach. A short time later whilst Police were patrolling the accused young person MY was seen by police walking towards Robinson Street Yamba. At this time Police could not confirm a description of clothing therefore left the area to attend to the victims. Upon speaking with the victim and witness a short time later, a description of the three accused persons was gathered. One such description described the accused young person MY leaving no doubt that the offenders had run into the Ngaru Aboriginal Reserve. Police approached an address in Robinson Street Yamba and saw two of the accused young persons run from the premises. Both were still wearing the clothing described by the victim and witnesses. Both ran from the premises and were arrested a short time later. The accused young person SP was arrested inside a premises in Robinson Street Yamba after being named by the co accused young persons. The three accused young persons were conveyed to Yamba Police Station and entered into Police Custody and later charged with said offence. 5The defence submissions were based on the following passage from the case of LK v Commissioner of Police and Anor [2011] NSWSC 458 where the issue of the application of the Evidence Act to Forensic Procedure Applications was raised. Fullerton J at 26 made the following comment: In the somewhat unusual circumstances of this appeal I do not regard it as appropriate that I deal at any length with the submission that some aspect of the evidence upon which the Magistrate relied was inadmissible or express a final view about the matter. I do, however, observe that the Bail Act 1978 specifically provides that a court is not bound by the rules of evidence, which under s8 of the Evidence Act displaces s4(1)(b) of the Evidence Act which provides that the Act does apply to proceedings relating to bail. In addition, although the Crimes (Forensic Procedure) Act makes no express provision that the rules of evidence apply to proceedings under the Act (or for the rules of evidence to be dispensed with) s33 which deals with applications for interim orders, refers expressly to the need for an application made in person to be supported by evidence on oath or affirmation, and s26 provides that an application for a final order must also be supported by evidence in relation to the matters in s24 to which the Magistrate needs to be satisfied before a final order is made. I also note that s4 of the Evidence Act provides that the Act applies to proceedings in a New South Wales court including interlocutory proceedings or proceedings of a similar kind. Assuming that the proceedings are civil proceeding (as defined in the Evidence Act) the applicant did not apply for waiver of the rules of evidence under s190(3) of the Evidence Act. On this analysis it would appear that proceedings under the Act (or at least the proceedings the subject of the appeal) are governed by the rules of evidence and that the challenged evidence ought to have been disregarded by the Magistrate. 6The defence adopts this highly persuasive passage, and the prosecution does not challenge the view that the Evidence Act applies to the application, and that much of the material contained in the affidavit is hearsay. The prosecution submits that most of the evidence relating to police observations is actually the observations of Senior Constable Jeffcoat, and that this will become clear once the admissibility of the affidavit is determined. 7I have some issue with the concession that the evidence is hearsay, in the sense that it is not tendered for a hearsay purpose. Nevertheless, for the purposes of this judgment I will assume that it is hearsay. 8The prosecution applies for the hearsay provisions of the Evidence Act to be waived pursuant to s 190(3), and thus for the affidavit to be admitted into evidence notwithstanding the hearsay contained. The defence objects to that waiver. The defence objected firstly on the issue of notice, but this objection was not maintained in further submissions. In any event, given the urgency of the application, I would have waived notice. 9Section 190(3) of the Evidence Act is as follows: In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if: (a)the matter to which the evidence relates is not genuinely in dispute, or (b) the application of those provisions would cause or involve unnecessary expense or delay. 10There is precious little reported authority on s 190(3). However it is abundantly clear that it is for the court to consider what is genuinely in dispute, and that that determination may be contrary to the stated views of the party objecting to the waiver - Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 367. 11The defence submissions are that the hearsay is inadmissible, and that if evidence is sought to be relied upon which goes to issues beyond the direct knowledge of the applicant, then those witness's statements must be served on the application, and they must be available to be cross-examined on the application. Thus, in this case, the alleged victim and any eyewitnesses to the actual assault, would need to give evidence. Further, evidence by any police officer, unless merely corroborative of the applicant, would also need to be subject to cross-examination. When I pointed out to the defence that this would mean that the hearing of the application would involve calling the same evidence as to be heard at the trial itself, the response was that either the Evidence Act applied or it did not. If it does, then no hearsay is admissible. 12The application by the prosecution that s 190(3) be applied was objected to. Firstly, it was said that it was too late for such an application in the middle of the forensic application. Secondly, it was stated that this was merely an attempt to remedy a "law that the prosecution or the court does not like" with a device. Thirdly, there was reference to the second reading speech relating to forensic procedures. Finally, reference was made by Mr G Kumarasinhe to Smits v Roach [2006] HCA 36, CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943 and W v Bugden and Another [2005] NSWSC 898. 13At no time did either defence counsel seek an adjournment. There has been no application by the defence to call or cross-examine any other witnesses pursuant to s 30(6)(b) of the Crimes (Forensic Procedures) Act 2000. A full brief of evidence has been served on the defence for the pending hearing. 14I stood the matter down in the list so that the defence lawyers could get instructions as to whether any of the matters in paragraph eight or nine were genuinely in dispute. The defence position was that all the evidence except for the last sentence of paragraph nine was in dispute. 15With respect, the defence position on that issue is nonsensical. How can it possibly be genuinely in contention, for example, that at approximately 15.47 on Saturday 14 January 2012, the victim and the witness were both sun baking on Pippie Beach at Yamba? How can it possibly be genuinely in dispute that a female co-accused has since been charged and pleaded guilty to this offence? Nevertheless, I can understand that some of the material contained is going to be in dispute in the eventual hearing, where I glean that identification is a key issue. However, for the reasons given below, I am of the view that none of the material in paragraphs eight and nine is genuinely in dispute for the purposes of this application. 16In my view the error in the approach of the defence is a misunderstanding of the nature of these proceedings. Where an application is made to the court for a forensic procedure, the court must make a decision under s 24 of the Crimes (Forensic Procedures) Act 2000. The applicant bears the burden to satisfy the court that there are reasonable grounds to believe a suspect has committed an offence, and that the procedure might produce evidence tending to prove or disprove that the suspect has committed the offence. 17The procedure for hearing such an application is set out in s 30(6). The suspect or his or her representative: (a)may cross-examine the applicant for the order, and (b)may, with the leave of the Magistrate, call or cross-examine any other witnesses (c)may address the Magistrate. 18The limits on s 30(6)(b) are established in s 30(7): A Magistrate must not give leave under subsection (6)(b) unless the Magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witnesses should be called or cross-examined 19The court does not have to be satisfied that, for example, the alleged victim is telling the truth to the police officer that makes the application. The procedure specifically excludes the testing of other witnesses, unless there are substantial reasons why they should be called. As stated above, no such application has been made. 20In my view, Parliament never intended that application proceedings such as this ought be some sort of 'pre-trial trial'. This is a classic case where the hearsay provisions of the Evidence Act ought be waived because it is not seriously in dispute that the police officer has been informed of all, or any of these matters, and that he has faithfully repeated what he has been told by the victims in his affidavit. 21The test for this application is for the court to ask, inter alia, this question - based upon what the applicant police officer has been told, and based upon what the applicant police officer saw and heard, are there reasonable grounds to believe that the suspects have committed an offence? The test is not whether the witnesses who told the police certain things are telling the truth. 22There is nothing in the second reading speech by then Attorney General Wheelan, or in the cases referred to by the defence that suggest otherwise. 23In coming to that conclusion I am mindful, in accordance with s 190(4) of the Evidence Act, that the information given to the applicant is crucial in determining this application, that the allegations in relation to the offence are extremely serious and that an adjournment would necessarily delay the hearing of the substantive allegations. 24Even if I was wrong as to the issue of 'genuinely in dispute', the exclusion of the evidence would be a monumental waste of time pursuant to s 190(3)(b). 25I am waiving the hearsay rules for the purposes of the affidavit, and it will be exhibit one on the application. 26The defence may now cross-examine the applicant. Following that, I will hear from the representatives of the prosecution and the defence, and make a determination as to whether the photographs may be taken. If so, I will set a timetable for the procedure to take place and for the service of any additional evidence for the hearing of the substantive matters. 27It is necessary for completeness to deal with some of the submissions by Mr G Kumarasinhe which were of concern, particularly as he submitted that I should refer this matter to the Supreme Court. Apparently, he is of the view that I have this power, although that is news to me. 28Firstly, the cases handed up by Mr G Kumarasinhe referred to at [12] above were irrelevant to the issue currently under determination. 29Secondly, on page seven Mr G Kumarasinhe made the following submission: Your Honour the submission I was going to make only briefly is that that decision of her Honour at the point your Honour raised at law has never been referred to the Court of Criminal Appeal so it's a judgment so its not challenged. 30I fail to comprehend what the Court of Criminal Appeal has to do with this matter. I am perturbed that Mr G Kumarasinhe appears to be making a submission regarding hierarchy of the courts in New South Wales, the concept of obiter dicta and the doctrine of precedent. However, as I am unable to comprehend the actual submission, it is difficult to deal with the issues apparently raised. 31Thirdly, Mr G Kumarasinhe made submissions on the onus of proof on page 13 of the transcript at 32. But what is concerning and I haven't heard what your Honour said, is it clearly appears by trying to get instructions is reversing the onus of proof. 32This submission was repeated at page 14 at 12. This fundamentally misunderstands the nature of an application under s 190(3). For the court to hear submissions from the respondent to an application to waive the rules of evidence is not reversing the onus of proof. It is providing natural justice. There is no onus on the respondent to the application to waive the rules of evidence. 33Fourthly, Mr G Kumarasinhe sought to make submissions about the issue of 'suspicion' at 14.27. As I pointed out at the time, that submission fundamentally mistakes the issue at hand, which is the admissibility of the affidavit, not the test to be applied in considering the entire application. 34Fifthly, Mr G Kumarasinhe made the following submission at 18.12: Yes and your Honour that's what we said your Honour is that if you don't raise that objection regarding waiving the rules then we are to be criticised. So we embrace it your Honour and the submission I make with all due respect is that should have been raised much earlier in the proceedings. We have it on the track and then that's been raised. 35I did not understand that submission at the time, and try as I might, I do not understand that submission now. It is not for the court to raise objections, just as the court does not have the power to refer the matter to the Supreme Court. It is unclear what should have been raised earlier in the proceedings. I am mystified as to what, if anything, is 'on track'. 36Sixthly, Mr G Kumarasinhe made the following submission at 19.25: Your Honour can I just say this your Honour and I put a caveat your Honour, it's not like an expert statement and your Honour can look at it your Honour's got a copy of it, it's not like a expert witness statement that the prosecution says we serve it pursuant to Section - your Honour where it says if it's not challenged or contested quite properly it will be tendered. But it doesn't say that what this application says, certainly it applies to my client here, notice the respondent failure to appear may result in a warrant being sought for your arrest, here she is. I'm just saying your Honour my friend is saying that we should have put him on notice but this is not the case. It's not like an expert witness statement that tells you or to serve quite properly and says otherwise we tender this. And that's good law but it's not the case here. So I'd ask your Honour to perhaps note that for the record. 37To the extent that this is a submission relating to expert evidence, warrants of arrest, good law and tendering, then that submission is duly noted. For what purpose I am noting that submission, I remain utterly ignorant. 38In respect of each of the six matters raised above, I am not confident that Mr G Kumarasinhe understands the nature of the application, or the evidential issues I am determining. I am not confident, even with the benefit of reading the transcript repeatedly, that I understand the submissions he put. 39I thank Mr Spagnolo and Mr Costin-Neilsen for their helpful submissions. Magistrate David Heilpern Grafton Local Court