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[2011] NSWDC 204
District Court of NSW
2011-10-25
Mr P
Original judgment source is linked above.
Judgment 1Natasha Youkhana has pleaded guilty to an offence of knowingly dealing with the proceeds of crime: s 193B(2) Crimes Act 1900 (NSW). An important particular of that offence is the amount said to be involved in the crime. The Crown contends that $4,642,135 was involved. The defence say about $2,000,000 should come off that figure. The particulars are set out in the Facts document (Exhibit A, Tab 2). When that document was tendered I was informed that objection was taken to paragraphs [31]-[36] and [38]-[44]. That objection was later extended to paragraphs [28] and [37]. 2Paragraphs [31]-[44], which follow a subheading "E" in the document, are the subject of this application and relate to allegations made by Alessio Torelli, whose statement is now before me as Voir Dire Exhibit D. On an earlier occasion in these proceedings I was informed by Mr Boulten SC, who appears for Ms Youkhana, that Mr Torelli was required for cross-examination. It is clear from Voir Dire Exhibits A, B and C that the Director of Public Prosecutions and the NSW Police have made all reasonable efforts to ensure that Mr Torelli was before the Court on 21 October 2011, the date that this matter was listed to determine disputed evidence. Mr Boulten accepts that evidence establishes Mr Torelli is "unavailable": Evidence Act, Dictionary Pt 2 Cl 4. 3Ms Gray, for the Director, seeks to tender the statement and the annexures necessary to understand the statement made by Mr Torelli on 21 November 2007 (Voir Dire Exhibit D). Objection is taken to that tender. Mr Boulten asks that I direct that the Evidence Act applies to this part of the proceedings. I so direct. 4Issue is joined on the question of whether, its maker being unavailable, Mr Torelli's previous statement should be admitted as relevant evidence on sentence because of the exception to the hearsay rule provided in s 65(2) Evidence Act 1995 (NSW). Proper notice that s 65 would be relied on was provided in advance to the defence. Mr Boulten also submits that, should the document be admissible as hearsay, s 137 Evidence Act requires its exclusion. 5Ms Gray relies on ss 65(2)(b) and (d) which read, relevantly: "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: (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 (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". 6Mr Torelli clearly intended in his statement/representation to assert matters known directly by him relating to Ms Youkhana's dealings with sums of illicitly obtained cash in the order of $2 million. The statement, although made in November 2007, relates to events which occurred between March 2006 and March 2007. In making his statement, Mr Torelli had access to contemporaneous banking and other business records annexed to Voir Dire Exhibit D. The term "shortly after" in s 65 must be treated with a degree of flexibility. Much will depend on the circumstances, which include; temporal proximity, the subject matter and the maker's familiarity with it, and whether things such as contemporaneous documents were available to assist in the making of the statement. Mr Boulten accepts that, in all the circumstances, the statement/representation was made "shortly after the event" for the purposes of s 65. 7It is for the party relying on the statement/representation to show that the statement/representation was made "in circumstances that make it unlikely that the representation is a fabrication". Here, Ms Gray notes:
Determination 15My focus in applying s 65 is to look to the circumstances in which the representation was made and which applied when it was made. I have carefully read the proposed exhibit and examined, so far as practicable, the circumstances in which it was made. I was assisted by the evidence of Sergeant Klotz. I note the Crown has the onus of showing the unlikelihood of fabrication. This is a narrower test than likelihood of reliability. "Fabrication" includes the question of concoction, that is, whether the statement was made up. 16The circumstance of its making include the content of the statement, the nature of the relationship between Mr Torelli and Ms Youkhana, and the factual setting of its making so far as I am able to determine. 17The test pursuant to s 65(2)(b) is not a reliability test, it is perhaps narrower: see ss 65(2)(a), (c) and (d). 18When I come to consider s 65(2)(d), again the Crown bear the onus, I must recognise that a person such as Mr Torelli may be motivated to downplay the extent of his involvement and exaggerate or emphasise the culpability of another. In making my determination I have found useful decisions: R v Jang [1999] NSWSC 1040 per Bell J; R v Suteski (No 4) (2002) 128 A Crim R 275; R v Ambrosoli (2002) 55 NSWLR 603; R v Mankotia [1998] NSWSC 295 and Conway v R (2000) 98 FCR 204. 19In my opinion Mr Torelli, although he clearly is avoiding service, made a statement soon after the event in circumstances where he had been given an opportunity to avoid prosecution if he made a clear, verifiable and reliable account of his dealings with Ms Youkhana. The contents of the statement as far as his non-criminal relationship with Ms Youkhana were verifiable, as were payments, bank transfers and the like, which are evidenced by the annexures to the statement used by him in its preparation. He was, having previously lied to the Crime Commission, given an opportunity to be as accurate as he could, knowing that what he said would, and could, be checked. In those circumstances I find it unlikely what he said in the statement/representation (Exhibit Voir Dire D) was fabricated. 20As to the alternative test in s 65(2)(d), the statement clearly was against interest, a fact which is not contested by Mr Boulten. It is also, given the fact that it was, and could be, checked made in circumstances that make it likely it is reliable. Clearly, the statement must be read with an understanding that, reliable or not, there was a clear motivation to downplay the extent of his involvement and exaggerate the culpability of others. That, of itself, does not cause me to reject its admission. 21I now turn to the issue of whether I should exercise my discretion to reject the evidence pursuant to s 137 of the Evidence Act . These are clearly criminal proceedings and I have directed that the Evidence Act applied. I must weigh the probative value of the evidence against the danger of unfair prejudice which I note requires me to measure what are in fact incommensurables. That is not an unusual task given a judge. I must look to the evidence, the particulars of the case and use experience of the Court. 22It is clear that the evidence could rationally affect the assessment of the probability of a fact in issue and, if admitted, has considerable probative value: here, the extent to which Ms Youkhana dealt with the proceeds of crime. I must weigh against that the dangers I will use the evidence on some improper basis or unconnected with the issues of the case or in a way, for example, that would cause me to be satisfied to a lower degree of probability than would otherwise be required: see ALRC (1985) No 26 Vol 1 at [644]. Clearly, if the prosecution is to rely upon the statement it must, when weighed with all the other evidence, establish beyond reasonable doubt the extent to which Ms Youkhana dealt with the proceeds of crime before it can be applied as a matter in aggravation of the sentence I must impose. 23I am aware of the potential for improper use but I am also aware of the statement's significant probative value when it comes to my assessment of the overall gravity of the offending behaviour the subject of these sentence proceedings. The evidence is significant, it is probative, and the danger of unfair prejudice, with respect to Mr Boulten's submissions to the contrary, is unlikely. In the circumstances I propose to admit the statement of Mr Torelli.
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R
Natasha YOUKHANA