R v Richard Harry Morton

District Court of NSW|2008-04-03

CITATION: R v Richard Harry Morton [2008] NSWDC 107

HEARING DATE(S): 31/3/08; 1/4/08; 2/4/08; 3/4/08

DECISION: Applications under s 65 of the Evidence Act and s 289 of the Criminal Procedure Act are refused Trial to proceed without Crown's reliance on victim's statement

CATCHWORDS: victim statement - English not first language - absence of interpreter - victim unavailable to give evidence at trial - Crown application to rely on statement

LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995

Goldsmith v Newman [1992] 59 SASR 404 B v Gould and Director of Public Prosecutions [1993] 67 ACrimR 297 R v Stackelroth [1996] NSWSC 41 Kennedy [1997] 94 ACrimR 341 R v Mankotia [1998] NSWSC 295 CASES CITED: R v Polkinghorne [1999] 108 ACrimR 189 Conway v R [2000] 98 FCR 204 Gover [2000] NSWCCA 303 O'Hare v Director of Public Prosecutions [2000] NSWSC 430 Williams v R [2000] 119 ACrimR 490 R v Ambrosoli [2002] NSWCCA 386 R v Kazzi [2003] 140 ACrimR 545

PARTIES: The Crown Richard Harry Morton

SOLICITORS: NSW DPP Legal Aid Commission of NSW

1 HIS HONOUR: I proceed then with a judgment in an interlocutory application by the Crown in the matter of Richard Harry Morton. The accused, Morton, has pleaded not guilty to an indictment on the alternative charges of robbery in company and of robbery arising out of circumstances which, are comprehensively described in the statement which is the subject of this application. However, for the purpose of putting the application in context, I propose to rely on the substance of the statement of the victim, Matthieu Marie Bruno Scherer, dated 22 February 2007, the date of the alleged offence.

2 The circumstances of the offence, as described in the statement of Mr Scherer, and as amplified in statements of other persons who were present at various stages in the course of the commission of the offence and its immediate aftermath, are that Mr Scherer, who is French by birth, was on a working visa in Sydney, having come to Australia in the latter part of 2006 and having planned to return to France in September 2007. Mr Scherer's purpose in being in Australia, according to his close friend with whom he lived during the time he spent in Sydney, Mr Amaury Lepivain, was to improve his English for the purpose of the work which he undertook that had some connection with the tourist trade in France.

3 Mr Scherer was working late on the night of Wednesday 21 February in Leichhardt. He finished work at about midnight and proceeded to walk from where he worked along Parramatta Road to a bus stop where he was planning to catch a bus home. He was sitting at the bus stop when he noticed two men walking towards him, whom he described in terms which identified the accused, Morton, and the co-accused, Davis. They approached him and Mr Davis was alleged to have said, "Give me your phone." Davis then grabbed the complainant by the jumper, pulled him off the bus stop seat and pushed him onto the footpath.

4 While the complainant was laying on the footpath, he was taken hold of by Davis, and, because of his fear for his own safety he handed his mobile telephone to Davis when Davis threatened to punch him. After he handed over his mobile phone, Davis continued to stand over him and then demanded that he give him his money and his bag. He then saw the other man, the accused, whom he described as having a bald head and a beard, come over and take hold of his left wrist, and without saying anything, attempted to undo his watch, which he was wearing on his left wrist. Again, out of concern for his own safety and because he feared he would be hurt by the accused if he did not assist in removing his watch, he proceeded to do so and handed it to the accused. He then rolled underneath the bus seat in order to attempt to protect himself from his attackers and they went around the other side of the bus seat in order to try to get at him. He then stood up and told them he would give them anything else they wanted, but at this point it appears they both started to run down Parramatta Road towards the city.

5 Mr Scherer proceeded to make his way to a kebab shop in Parramatta Road, which was still open, and asked the proprietor of the shop, who was subsequently identified as Mehmet Oguzerkekaslan - for help. Mr Scherer told him what had happened and pointed out the two men, who were still within sight and had by turned around and were walking towards them. Mr Scherer then saw the two men hail a taxi and get in. Mr Oguzerkekaslan and Mr Scherer ran to the taxi and called to the driver to remain where he was. Mr Oguzerkekaslan then opened the back door of the taxi and grabbed hold of Mr Davis, who was the closer of the two, who were both in the back seat, and dragged him out of the taxi. There followed a sequence of events, which it is not necessary to record for the purpose of this application in any detail, which included a quite extended altercation between Mr Oguzerkekaslan and Mr Davis, during the course of which the accused persuaded the cab driver that he was not implicated in the commission of the crime which had generated the encounter between the other two men, and persuaded the driver to drive off. However, it appears that the accused then instructed the driver to stop and let him out, and the accused returned to the scene, at which point both police and ambulance officers were in attendance. The accused came up to the complainant, who was then in the company of police officers, and handed back to the complainant the mobile phone and the watch. According to the complainant, the accused said, as he handed it back, everything should be okay.

6 The complainant was born and has spent most of his life in France or French-speaking countries, and although he is quite capable of conducting a basic conversation in English. According to his friend, Mr Lepivain, Mr Scherer's English is limited. It was partly because of his limited English, that at this point the complainant contacted Mr Lepivain and asked him if he would come to the scene of the crime in order to assist him in communicating with the investigating police, which Mr Lepivain then did, and subsequently accompanied the complainant to Surry Hills Police Station. It was after the two men arrived at Surry Hills Police Station that a statement was taken from the complainant by Constable Breeze Steinmetz. The two men were taken to an interview room and Mr Lepivain was enlisted by Constable Steinmetz to assist in the process of taking a statement from the complainant to be recorded in English.

7 In the course of the voir dire on this application, I had the benefit of hearing from both the police officer and Mr Lepivain concerning the manner in which the statement was taken. Their evidence can be summarised as follows: the constable asked a series of questions concerning the events which were ultimately recorded in the statement and insofar as he was able, the complainant answered in English, but when - and this, according to Mr Lepivain, was quite frequently - he had difficulty in either understanding the question or formulating an answer in English, he would turn to Mr Lepivain, who would assist in explaining to the complainant in French, getting an answer in French and then translating into English for the assistance of the police officer. On the basis of this process, a statement was compiled on the computer operated by Constable Steinmetz and was then handed to Mr Lepivain, who went through it, to the extent he considered necessary, translating into French in order to satisfy himself that the complainant understood the content of the statement which had been prepared. At the conclusion of that process the statement was then signed by Mr Scherer and witnessed by Constable Steinmetz.

8 The Crown's application, because of the inability of the Crown to obtain the complainant at this stage to give evidence at the trial of the accused, is to have the statement admitted in lieu of the oral evidence of the complainant, and it is the admissibility of that statement which is the issue in these interlocutory proceedings. The admission is opposed on a number of bases, which I will address in the course of considering the relevant statutory provisions and the authorities.

9 Evidence was also given on the voir dire by Detective Senior Constable Craig Ross, the officer-in-charge of the investigation of the matter. Detective Ross gave evidence of the history of inquiries which were made following the complainant's return to France in September of last year, with regard to his availability for the purpose of giving evidence at the trial. There were two emails sent to Mr Scherer in October 2007. At that stage the emails were in general terms about the need for Mr Scherer to return to Australia and it was on 19 December 2007 after the trial date of 31 March 2008, had been obtained, that a further email was sent to Mr Scherer advising him of the date and indicating that he would be required to return to Australia for the purpose of giving evidence at the trial. No replies were received to any of those emails, although the police had used the contact details which Mr Scherer had supplied before he left Australia to return to France.

10 A further email was sent on 15 January of this year and there was again no reply. Following that, a letter was sent to the postal address, which Mr Scherer had left with the police on 31 January 2008. There was no reply to the letter and, after some further time had elapsed, Mr Lepivain's co-operation was sought by the police, and with his help, following a telephone call on 3 March of this year which indicated that that particular telephone number was no longer connected, a reply was obtained from Mr Scherer.

11 In an email dated 25 March 2008 addressed to Detective Ross, through Mr Lepivain, the relevant words in the message were as follows, and I quote: "Regarding the court case, I will not be present because I am really busy at the moment and I have just got a new job, which I will start next week and I will be away for a professional reason from the 1st to 14 April 2008, so it is not the right time for me to come."

12 There was a separate and subsequent email message sent via Mr Lepivain, which repeated the substance of what had been said in the earlier email as follows: "I'm sorry to tell you that because of my professional situation, I'll not be able to be present at the trial. Moreover, I will be travelling all over France for my job during this period, thus it's impossible for me to escape my professional needs."

13 It was those messages which led the Crown to the conclusion that Mr Scherer was not prepared and, as he perceived it not in a position to return to Australia on 31 March for the purpose of the trial and that the Crown would therefore be left to rely on the statement which was taken on the morning of the alleged offence.

14 In its application, the Crown relied on two alternative statutory provisions; one in the Evidence Act 1995 and one in the Criminal Procedure Act 1986. Section 65 of the Evidence Act addresses those exceptional circumstances in which a statement such as the statement made in this case which would otherwise be hearsay evidence is, notwithstanding that, admissible, and is relieved of the application of the hearsay rule.

15 Subsection (2) of s 65 provides as follows: "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 was--" and then those parts of subs (2) on which the Crown relied: "(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) made in circumstances that make it highly probable that the representation is reliable--"

Subsection (3) proceeds in the alternative to provide other grounds on which the hearsay rule will not apply. Subs (b) refers to cases where: "The defendant in the proceedings had a reasonable opportunity to cross-examine the person who made the representation about it."

16 The Crown case is that the representation in this case, which includes the statement generally, but in particular that part of the statement which specifically implicates the accused, (para 8). I will quote from the relevant part of that paragraph. "I then saw the other man, the one with the bald head and beard, come over to where I was. The bald-headed man stood over me and he bent down and lifted up my left wrist. He didn't say anything to me, but he was trying to undo my watch to take it. He was having trouble undoing the latch on my watch and I was scared I would get hurt if I didn't give it to him, so I undid it for him and he took it off my wrist. I don't know where he put it."

There are other parts of the statement that deal with subsequent events that I have already summarised, but I will not at this stage quote verbatim from any other part of the statement.

17 Mr Hutchinson, on behalf of the accused, submitted that the circumstances in which the statement was taken are not sufficient to meet the requirements of either subs (b) or subs (c) of s 65(2). The particular reasons for the representation contained in the statement not being protected by that section are largely concerned with the mechanism which was chosen by the police officer, Constable Steinmetz, to take the statement. In the course of her evidence she admitted that, first of all, she had been at that stage a member of the police service for approximately a year and a half and that she had no knowledge of the police Code of Practice in which there are specific provisions addressing the use of interpreters in circumstances where a person being interviewed has a limited understanding of English. Even at the time she gave evidence in these proceedings, Constable Steinmetz had still not heard of those provisions. It goes without saying that she did not make any attempt to comply with the procedures laid down in the Code and employ the assistance of a properly qualified interpreter.

18 It was the Crown case that the absence of an interpreter was not in the end a decisive matter when it came to the application of s 65(2) because of the role of Mr Lepivain. While he was not a qualified interpreter, he demonstrated in the witness box that he did have some insights into the subtleties of translation and that he had a good understanding of the English language, certainly much better than appeared to be the understanding of the English language on the part of the complainant. He appears to have understood the role that he was invited to take at Surry Hills Police Station and that he did materially assist in the process of obtaining a statement in English from the complainant.

19 However, even if the value of his role is acknowledged and there is no doubt that without his assistance it would have been extremely difficult, if not impossible to take a statement, this is not simply a question of whether it is more likely than not that the statement was reliable. The representation has to have been made in circumstances where fabrication was unlikely or that make it highly probable [my emphasis] that the representation was reliable.

20 Quite apart from underlining the high standard which those words impose, both subsections, use the words, "made in circumstances", that either make it unlikely the representation was a fabrication or highly probable that the representation was reliable. The phrase, "made in circumstances", has been the subject of consideration in a number of cases, the most important of which are the decision of Sperling J in the Supreme Court in R v Mankotia [1998] NSWSC 295; the decision of Levine J in the Supreme Court in R v Polkinghorne [1999] 108ACrimR 189; and two decisions of the Full Court of the Federal Court, the first of them, Conway v R [2000] 98 FCR 204 and the second Williams v R [2000] 119 ACrimR 490. Most recently, the words have been the subject of comment in the New South Wales Court of Criminal Appeal, first of all in R v Ambrosoli [2002] NSWCCA 386 and R v Kazzi [2003] 140 ACrimR 545.

21 The decision of the Full Court of the Federal Court in the case of Williams contains a useful summary of the observations made in the earlier cases on the proper interpretation to be given to the phrase, "made in circumstances." At p 503 of the judgment, their Honours in the Full Court refer to the judgment of Sperling J in Mankotia and quote from his judgment at para (11) where his Honour said: "It is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances."

And he goes on in the next paragraph: "I would construe 'circumstances' to mean that the circumstances in which the representation was made, its factual setting at the time it was made. That construction has the effect of excluding from consideration, for the purposes of s 65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s 65(2)(c)."

22 Similar views were expressed by Levine J in Polkinghorne, but as their Honours in Williams go on to observe at p 503 of the judgment, this approach was not "entirely followed" in Conway, where at 244 the Full Court in that case said: "We think that it is legitimate for a trial judge to have regard to evidence of what the maker of the previous representation has said on other occasions, when determining whether or not it is highly probable that a particular statement was reliable."

23 In Williams itself, the Full Court then proceeded to refer to what they ultimately judged to be the wrongful admission of a statement made in that case by a person who subsequently died. In commenting on the decision of the trial judge their Honours say this, at the bottom of p 503 going on to p 504: "His Honour appears not to have adequately addressed the concerns raised at the trial by counsel for the appellant that, at the time of the interview, Mr Stewart, (that is the deceased) had been cautioned that he was suspected of having aided and abetted the appellant and that a sawn-off rifle had been found in the backyard. In response to the submission that these factors made the circumstances such that the interview was far from reliable, his Honour had…"

24 There follows a recounting of the reasons which the trial judge gave for rejecting that submission. Then the Full Court goes on, at para (55): "It appears from these comments and otherwise that his Honour addressed only the question that whether the evidence contained within the transcript of the interview was reliable, rather than, as Conway would have it, all the circumstances as to the making of the statement. This was an erroneous approach to s 65(2)(c) or a mistaken application of the principle to admit the interview under that section. This is particularly so in light of the onerous requirements imposed by s 65(2)(c)."

25 It is unfortunate from the point of view of the resolution of the issue in this case, that none of the authorities, including Williams concerned a set of facts remotely resembling the facts in this case. What is said, therefore, in the various judgments to which I have referred, provides only guidance of a general kind to the approach that needs to be taken.

26 The effect of the earlier decisions was summarised in the judgment of the President of the Court of Appeal, Mason J, in Ambrosoli and I will quote at length from that judgment at [28]: "Sperling Js approach treats the paragraphs as directed at the circumstances of the making in emphasis of the representation. I agree with this reading of the paragraph. It follows that it is those circumstances that are to be examined to determine unlikelihood that the representation is a fabrication (para (b)) or high probability that the representation is reliable. Since the matter to be determined is the admissibility of the evidence of the person who saw, heard or otherwise perceived the previous representation. The focus remains the reliability of the representation, not (directly) the reliability of the asserted fact. [29] But it does not necessarily follow that evidence of events other than those of the making of the previous representation cannot throw light upon the circumstances of the making of that representation and its reliability as affected thereby. Events subsequent to the representation being made might do this, for example, a (genuine) express retraction by the making of a previous representation, or evidence indicating that the person who made the previous representation was incapable of having heard of seen the matter which was the subject of the previous representation."

27 His Honour then goes on to refer to a number of the earlier authorities in more detail, and having referred to the decision in Conway, says: "As I read [146] of the extract from Conway the Court was saying that 'reliability' alone could not be used on the basis for admissibility, because that represented too radical a break from the common law of hearsay evidence. In other words, evidence tending merely to the reliability or otherwise of the asserted fact (usually the ultimate issue at the trial) could not be advanced on the voir dire for or against the admissibility of the evidence of the previous representation." 28 I have to say, with respect to the various appellate courts who have addressed this issue, it is difficult on the basis of those general statements to be absolutely confident about the relevance, for the purpose of s 65 in this case, for example, of a subsequent statement made to one of the police officers present at the scene of the alleged offence, Senior Constable Bruce Jarvis. According to Constable Jarvis, in his statement made on 2 March 2007, he had a conversation after he had arrived at the scene somewhat later than some of the other police officers who had already intervened in the continuing struggle between the co-accused, Mr Davis, and Mr Oguzerkekaslan. At one point Constable Jarvis was standing in the vicinity of both the accused and Mr Scherer, and I quote from para (8) of his statement: "I approached the victim and said 'Mate, come over here for me please.' The victim came over to me. I said 'Who's this bloke. Do you know him.' The victim said, 'He's the man that steal my watch with him.' He indicated to accused Morton. I said, 'Which man stole your watch', he said, 'The man with tear on jeans.'"

This it is not disputed, was a further means of identifying the accused Morton: "I said, pointing to the accused Morton, 'That man stole your watch and the other man is the one who stole your phone. Is that right?'"

The victim, Mr Scherer, said: "Yes." 29 It is part of the Crown case that the question of the reliability of the statement made or the representation made of part of the statement recorded by Constable Steinmetz is reinforced by the corroborative evidence contained in the earlier statement made to Senior Constable Jarvis. But the question of the significance to be attached to that rests very much on the comments that have been made especially in Ambrosoli. On my understanding of what was said in the judgment of the President of the Court of Appeal in which the other members of the Court of Appeal concurred, most attention, if not exclusive attention, except where for example as he suggested other evidence might be alluded to in order to weaken rather than strengthen the reliability, should be given to the immediate circumstances in which the representation is made. They will determine the question of reliability and that Previous statements made by the person concerned do not have as important a role as the immediate circumstances especially of merely corroborative.

30 The Crown relied in particular on the one case which offers some similarity on its facts to the matter before me, namely R v Kazzi. That was a case of a statement which was to play a crucial role in the Crown case, provided by a victim of a robbery, Mr Vikram Gujral, an Indian national who had returned to India after providing the statement and who could not be located by investigating police.

31 It is part of the Crown case that the refusal of the Court of Appeal to accept Mr Gujral's competence in the English language as a sufficient basis for refusing to admit the statement, should lead this Court to reach a similar conclusion. There are, however, some important distinctions between the two cases. The reason given by the trial judge in that case for refusing to admit Mr Gujral's statement was that, been "fully competent in the English language", because he had an Indian name, he travelled on an Indian passport and he left Australia for India. Commenting on those reasons, Ipp J said in the Court of Appeal: "In this day and age I do not think that these matters are sufficient in themselves to give rise to any relevant doubt as to the person's ability to speak English. Of course, it would be open to a person seeking to oppose the admission of a statement under s 65 of the Evidence Act to adduce some evidence casting doubt on the proposed witness' grasp of English. Once there was some evidence to this effect, the burden would then be on the party seeking to tender the statement to prove that the maker properly understood and spoke English. There is no such evidence in this case." 32 At the risk of stating the obvious, the qualification in that part of the Court of Criminal Appeal judgment clearly distinguishes the case of Kazzi from this one. The lack of Mr Gujral's competence in the English language was entirely a matter of speculation. English is a principal language in India and is a language which is spoken by Indian nationals on a wide scale.

33 Without further evidence therefore, there was no proof that Mr Gujral was not competent in the English language. That cannot be said with regard to the complainant in this case. Mr Scherer had limited English; he had come to Australia in order to improve it, but in what was part of an intended stay of approximately twelve months, at the time of the commission of the offence he had only been here for something like four months. There had not been, therefore, an opportunity to make substantial progress in improving his English. This was a case, therefore, where the conditions proposed in Kazzi are met. There was evidence and that therefore shifted the burden onto the Crown to prove that the maker properly understood and spoke English. At that threshold level the Crown has failed to meet that burden. On all of the evidence, Mr Scherer did not properly understand and speak English and it was only the assistance of Mr Lepivain that overcame that handicap to the extent that Mr Lepivain was able to do so.

34 I am satisfied that the wording of s 65 imposes a heavy onus on the Crown in this case to satisfy the Court that there was no risk of either fabrication or unreliability and that, procedures were available to members of the Police Service, which could have been resorted to in this case without any serious jeopardy to the conduct of the police investigation. There was no evidence forthcoming from the Crown to suggest otherwise. There was a risk in the procedures adopted by Constable Steinmetz that crucial parts of the evidence of Mr Scherer would be lost in translation and that therefore the requirements of the relevant subsections in s 65 in those circumstances were not met. The Crown is not entitled to the benefit of subs (2) of s 65.

35 That leads to the question of whether the Crown can, in the alternative, rely on s 65(3)(b), which refers to a reasonable opportunity on the part of the accused to cross-examine, in this case Mr Scherer, at the committal proceedings.

36 The history of these proceedings is that the matter proceeded by way of what is commonly described as a "paper committal" which was in evidence as exhibit 2 on the voir dire and was dated 5 April 2007. At the time of the committal, there was every reason to expect that Mr Scherer would be available to give evidence at the trial prior to his intended return to France in September 2007. However, even if he had returned to France before the matter was ultimately set down for trial, the Crown still had available to it either the prospect of bringing him back, given what appeared to be at that stage a person who had comprehensively co-operated with the police investigation, or if that proved to be either impossible or particularly difficult, there was always the alternative of a video link with Mr Scherer, who at the time gave every indication that he was willing to continue to co-operate and to engage in one or other of the alternative means of giving oral evidence if he had returned to France by the time the trial took place.

37 The question of whether the Crown has succeeded in meeting the requirements of s 65(3)(b) depends in turn on the application of s 93 of the Criminal Procedure Act. Section 93 of that Act provides in ss (1): "In any committal proceedings in which the accused person is charged with an offence involving violence, the magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement (even if the parties to the proceedings consent to the attendance) unless the magistrate is satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence."

38 I make two comments on the words of that section about which there appears to be no dispute. First of all, it is provided in s 94 that an offence involving violence includes robbery, and therefore clearly includes robbery in company as well. In those circumstances there is no doubt that the section would have been applicable in this case. Secondly, it is not disputed that this is a case in which an application would have had to be made under that section, and that the purpose of the section is to keep to a minimum circumstances in which the victim of a crime of violence should be put through the trauma of cross-examination more than once. That underlying policy does assist considerably in the ultimate application of the section and is underlined by the use of the phrase "special reasons" in the section itself.

39 As to the meaning to be attached to those words, can I refer to two decisions. The first of them the decision of Studdert J in the Supreme Court of New South Wales in the case of B v Gould and Director of Public Prosecutions [1993] 67 ACrimR 297, and I am quoting from the judgment at p 303: "The reasons must be special to the particular case. There must be some features of the particular case by reason of which it is out of the ordinary and by reason of which it is in the interests of justice that the alleged victim should be called to give oral evidence. It cannot be enough that the defendant would be prejudiced if the alleged victim is not called. Plainly there would be prejudice to the defendant in every case where the offence is denied and where the defendant does not have the opportunity of cross-examining the alleged victim at committal."

In the following paragraph his Honour then goes on: "If the material placed before the magistrate suggests that there is a real possibility that if the alleged victim is subject to cross-examination, the defendant will not be committed, that may in the particular circumstances afford special reasons to require the alleged victim's attendance for cross-examination."

And in the following paragraph: "Again, if the alleged victim was given more than one version of an alleged offence and those versions are inconsistent, this may warrant that the alleged victim attend for cross-examination under the section."

40 I would caution, however, that the possibility always exists that a witness will be discredited or his or her testimony may be broken down in cross-examination. A recognition of that possibility and the confidence that the potential cross-examiner may express as to what may happen if he is given the opportunity to cross-examine would not of itself suffice to afford "special reasons."

41 Once again the examples provided in the course of that passage are of no particular assistance in this case. They are no more than illustrative of the heavy burden which rests on the accused to establish special reasons. This is confirmed in a number of other cases which are discussed in the judgment of O'Keefe J in the Supreme Court in the case of O'Hare v Director of Public Prosecutions [2000] NSWSC 430. In the course of his judgment, O'Keefe J, refers to an earlier decision of Hunt J, Chief Judge at Common Law in the case of Kennedy [1997] 94ACR 341, where his Honour said: "What are "special reasons" and what are not, will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly restrictive way; what must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than the disadvantage to the accused from the loss of the opportunity to cross-examine the complainant at the committal must be shown."

[That is consistent with the remarks in Gould]: "There must be some feature of the particular case by reason of which it is out of the ordinary and which established that it is in the interests of justice that the complainant be called to give oral evidence. Two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial. Solid grounds must be disclosed for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The clear message conveyed by all the cases is that cross-examination at the committal proceedings will be permitted only where there is at least a serious risk of an unfair trial if it is not."

42 O'Keefe J also quotes from a judgment of the Supreme Court of South Australia, and in particular, the judgment of King CJ, in Goldsmith v Newman [1992] 59 SASR 404, where King CJ sets out at p 410 examples of circumstances not sufficient to constitute special reasons, and those were: "(a) the disadvantage that all defendants may suffer in consequence of being deprived of the opportunity to cross-examine a witness twice and so test the witness' ability to tell a consistent story;

(b) a desire to cross-examine so as to affect the credibility of the witness in the eyes of the magistrate;

(c) a desire to conduct an exploratory cross-examination without definite object or solid grounds, but in the hope of unearthing something that may assist the defence."

43 I quote from those judgments only to underline the emphasis which the courts have given to the words "special reasons". They are to be taken literally and that therefore an accused person will not succeed in an application under s 93 unless such special reasons are given.

44 I noted earlier that in this case it could not be said, for example, what might have constituted a special reason: that there was a serious and imminent risk that the complainant would be unavailable at the trial to give evidence, and that the only opportunity for cross-examination would be at the committal proceedings.

45 In the absence of evidence of that kind, I am satisfied that the judgment exercised at the time, which becomes the relevant matter for the purpose of the application of s 65(3)(b), the decision not to apply for the complainant to be made available for the purpose of cross-examination, was not an unreasonable one. Faced with the substantial burden and the underlying public policy under s 93, the decision not to make any such application was a reasonable one. It follows, therefore, that there was, in those circumstances, except in the strictly literal sense, no opportunity to cross-examine and the failure to create such an opportunity on the part of the accused was not unreasonable. Therefore, the Crown cannot succeed in having the statement relieved of the hearsay rule with the assistance of ss (b) of s 65(3).

46 The conclusion is, therefore, that the Crown has failed on all of the alternative grounds on which it relied under s 65 to overcome the application of the hearsay rule under that section, and in those circumstances, therefore, the hearsay rule would apply to effectively exclude the evidence contained in the statement.

47 The Crown case is, however, that even in reaching that conclusion, the Court has not effectively disposed of the alternative basis on which the Crown's application was made, namely s 289 of the Criminal Procedure Act. The section explicitly addresses the circumstances which arose in this case, and insofar as it applies to this case, I will read from the section, in particular, from subs (2): "Except insofar as the court otherwise orders, a prescribed written statement--" [There is no dispute that the statement in this case meets the definition of a prescribed written statement for the purpose of the section]: "--may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement: … (b) is absent from Australia."

48 I am satisfied, and there was no real dispute, that the prima facie requirements of admissibility under that section have been met. The evidence of Detective Ross was to the effect that Mr Scherer has been overseas since he left the country in September of last year and has not returned, and on that evidence, does not intend to return for the purpose of the proceedings, at least for the purpose of a trial on 31 March of this year. It was the Crown case, therefore, that the statement should be allowed in under that section. I accept that the Crown is entitled to have this matter addressed independently of and as an alternative to s 65 of the Evidence Act. That much is clear from the decision of the Court of Criminal Appeal in the case of Gover [2000] NSWCCA 303.

49 The fact that the Crown is entitled to have the application considered in the alternative under that section, however, does not avoid the discretion which is implicit in the language of s 289(2), namely, that a statement may be admitted as evidence for the prosecution if the conditions of that section are met. The existence of a discretion to refuse a statement which, for one reason or another, is otherwise admissible, was contemplated and endorsed in the judgment of, again, his Honour, Hunt J, the Chief Justice in common law, on this matter in the case of R v Stackelroth [1996] NSWSC 41.

50 I am satisfied in this respect, that the discretion which the section provides should be exercised to exclude the admission of the statement under s 289 of the Criminal Procedure Act. The ruling that I have already made that the statement, if admitted, would be no more than hearsay evidence, is a sufficient basis to refuse its admission as tantamount to an exercise in futility in those circumstances.

51 I would add that were it necessary, although in my view it is not, there is a further reason why the court should exercise its discretion against the Crown, and that is the general conduct of the matter on the part of the Police Service and, in turn, the Crown, with regard to the efforts made to make Mr Scherer available for the purpose of giving evidence at the trial.

52 The history of the matter being set down for trial goes back to July of last year when the matter was first set down at a time when Mr Scherer was still in Australia and available to give evidence. However, on the Crown's application, that particular trial date was vacated for the purpose of permitting the trial of the co-accused, Mr Davis, to proceed in conjunction with that of the accused, Morton. I am not suggesting that there was any impropriety in the Crown making such an application. However, an inevitable consequence of the application was that the Crown risked a future trial date being set after Mr Scherer had returned to France. That prospect should have galvanised the investigating authorities to ensure that steps were taken to have Mr Scherer available when the time came. The attempts to make contact with Mr Scherer, after he had returned to France and, more particularly, after the new trial date had been set, were both tardy and inadequate. The repeated attempts to contact, which were met with silence from the other end, elicited no more action than a further delay and a further effort of the same kind, and this went on for months. It was only within a matter of weeks of the date set for trial that something more than the continued sending of emails and ultimately a letter was amplified by what proved to be a successful attempt to make contact and elicit a response from Mr Scherer with the aid of his friend, Mr Lepivain. But this happened at a time when the reply or replies were received within days of the hearing date, which left no time, as it turned out, for any measures to be taken to overcome a problem that might arise if Mr Scherer could not be here for the date of the trial.

53 There was no serious attempt to, even at that point, put in place a video link consistent with the trial date so that Mr Scherer's absence could be overcome. It was only after some prompting on the part of the Court, after the trial had nominally commenced and the matter was proceeding on the voir dire, that efforts were then made to establish a video link, which, perhaps not surprisingly in the circumstances, were unsuccessful because the reply received at that point from Mr Scherer did no more than restate the reasons why he could not come back to Australia and appeared to have ignored entirely the quite detailed attempt to have him co-operate by way of video link. One would have hoped, however, that if all of this had been done in good time, Mr Scherer could have been prevailed upon, with the assistance of Mr Lepivain, to co-operate with regard to a video link, thus overcoming the need to rely on the statement.

54 As I foreshadowed, I do not regard those matters as a necessary part of the decision, but in my view, they reinforce my decision to exercise my discretion in favour of the accused on the basis that the Crown's own conduct has done little to further the progress of the trial and to remove the need for reliance on the statement.

55 I therefore refuse the application under both statutory provisions on which the Crown relied, and rule that, depending upon the discretion which rests at this stage with the Crown, the trial should proceed without the Crown's reliance on that statement.

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