R v Natasha YOUKHANA

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: