78 At the time of the trial, Sakisi was in prison serving the sentence which had been imposed for his part in the attack on Mr Peich. He had refused to give evidence at the committal, and he adopted the same position at trial, notwithstanding the caution which was given, that he risked punishment for contempt of court.
79 He maintained this stance, after receiving legal advice, on the third day of the trial. It was in these circumstances that the Crown sought to tender the ERISP, upon the basis that, within the meaning of the Act, he was "unavailable to give evidence."
80 Before making an application upon this basis, consideration was given by the Crown to seeking leave to cross-examine Sakisi under s 38 of the Act as to his answers, thereby making the evidence available in the way which was confirmed as acceptable in Gilbert Adam v The Queen (2001) 75 ALJR 1534. Any such attempt to follow that course was likely to be unproductive if the witness continued to prove defiant. No doubt it was that consideration which led the Crown to move on to s 65 of the Act.
81 Although the opportunity of testing the witness' account was considered important in the case of Adam, both by me at first instance, and in the High Court on appeal, the net result of the exercise there was that the Crown was able to rely upon the version contained in the police interview since that version was permitted to go to the jury.
82 In the Dictionary to the Act (Clause 4, Part 2), the expression unavailability of persons includes a number of situations, for example those who are dead, missing, or not competent. The Dictionary definition also provides:
" s 4(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
…
(f) All reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give evidence, but without success."
83 Counsel for the appellant, at trial and on appeal, acknowledged that the Crown had taken all reasonable steps to compel Sakisi to give evidence. His Honour regarded that acknowledgement as a recognition that the sanction of contempt was unlikely to make him change his mind. His Honour accordingly found that Sakisi was, for the purposes of the Act, "unavailable to give evidence." Clearly that finding was correct. As emerges from a reading of the Australian Law Reform Commission Reports, the definition of "unavailability" was intended to cover the position of a witness who refused to give evidence (Report 36 at para 218).
84 The next step involved determining whether his out of court representations in the ERISP could be tendered, notwithstanding the hearsay rule. The exceptions upon which the Crown placed reliance were those contained respectively in s 65(2), (c) and (d), namely, that the representations had been made in circumstances where it was highly probable that they were reliable (s65(2)(c)), or that they were representations against his interests at the time that they were made (s 65(2)(d)).
85 His Honour concluded that Sakisi's position as an accomplice made it difficult to have the degree of confidence in his account, that could allow it to be "categorised as highly reliable". Although that is not the precise way in which the provision is expressed, I assume that his Honour meant that he could not be satisfied that, the circumstances in which the representations were made (that is, in a formal police interview at a time when Sakisi was under investigation), made it highly probable that they were reliable. If that were not the case, then it appears to me that his Honour may have set the hurdle too high for the Crown in relation to this alternative in adopting a test of "high reliability": R v Ambrosoli [2002] NSWCCA 386.
86 Whatever be the position in this regard, his Honour elected to approach the matter upon the basis of s 65(2)(d).
87 The ERISP took place on the day of Sakisi's arrest, and before his conviction on the charge of being an accessory before the fact of malicious wounding with intent to do grievous bodily harm. In these circumstances s 65(2)(d) was available without any requirement for the court to be satisfied that it was highly probable that the representations were reliable.
88 Counsel for the appellant, at trial, drew attention to the safeguards contained in s 65(3)(4) and (5) which permit evidence of this kind to be given, in the circumstances to which they apply, only where the party against whom it is tendered, has cross-examined the unavailable witness, or has had a reasonable opportunity of doing so.
89 In substance the submission presented at trial, and pursued on appeal, is that s 65(2) should be construed, or read down, so as to reflect a policy evident in these sub-sections. His Honour held that s 65(3) to (5) dealt with a particular situation, namely where the unavailable person has previously given evidence in court proceedings, that had been dealt with by s 409 of the Crimes Act 1900. His Honour held that s 65(2) dealt with a separate situation, and should be construed upon its own terms.
90 At first blush, it may seem unusual that there should be a difference between the position of a potential witness now unavailable, who had given evidence on an earlier occasion, and one whose earlier account had not been given on oath. Similarly it may seem unusual that, had Sakisi gone to trial with the appellant, then his ERISP, if tendered, could only have been received as evidence in the case against him.
91 Notwithstanding these considerations, if the ERISP answers the requirements of the section, the philosophy of which is to allow the use of specified categories of hearsay evidence, then, subject to the safeguards of notice and possible exclusion under s 135 or s 137 of the Act, I see no obstacle to its tender. In particular I see no reason to read into s 65(2) qualifications which appear in relation to other subsections, but which have been omitted from it.
92 It was next submitted that only so much of Sakisi's ERISP as could be regarded as a statement against his own interests could be admissible under s 65(2), it being contended, for example, that a representation to the effect that the appellant "gave me instructions to arrange the bashing.." could not be so regarded. His Honour accepted the first part of that proposition, but not the second, holding, correctly in my view, that any statement made by Sakisi, which tended to implicate himself in a joint criminal enterprise with the appellant, would qualify. I so find because this is the classic definition of a statement against interest, as reproduced in s 65(7) of the Act.
93 An argument was also advanced that each question and answer should be considered separately, and that, unless standing alone, it amounted to a representation against interest, it did not qualify for admission. In my view this involved altogether too narrow a proposition. I see no reason why the representations should not be considered in context, that is, in association with the other answers which, when read together, constitute an admission or answer against interest, that is, so far as they tended to prove that Sakisi had committed a crime.
94 It was also submitted that, in view of Sakisi's position as an accomplice, and the arrest of his girlfriend, such statements as he had made in the ERISP may have been self-serving, or intended to serve her interests. Upon that basis, it was argued that the representations could not be held with any certainty to be against his interests. His Honour rejected this argument, holding that despite any mixed motives which he may have held, any answer which tended to be incriminatory of him was one made against interest. Again, I am of the view that this aspect of his Honour's reasoning was correct, and that the argument to the contrary, repeated on appeal, has no basis. It similarly follows from the commonly accepted meaning of a statement against interest.
95 His Honour excluded those questions and answers which were incapable of being described as against the interests of Sakisi (for example his denial of any allegations being put to him). Additionally he excluded those answers which amounted to second hand hearsay, that is, those matters which could only have been known to Sakisi through conversations with persons other than the appellant, or which involved him recounting conversations with persons other than her, where their only relevance was to prove the facts asserted.
96 Counsel were invited to edit the video and accompanying transcript to accord with these reasons. So far as this Court is aware, the version placed before the jury was accepted by the parties as having been sufficiently edited to accord with this ruling. After examining the record as tendered, I find no fault in this regard.
97 Admittedly there are a few passages of an innocuous or introductory nature, which may not strictly have been against interest. They were allowed to remain at trial and Counsel for the appellant does not suggest that any risk of a miscarriage of justice can be attributed to them.
98 An ancillary submission was advanced to the effect that, had the legislature contemplated the possibility of the admission into evidence of an ERISP, or of out of court representations, made by a co-accused in the position of Sakisi, without the accused having had the opportunity to cross examine their maker, then it would have made express provision for that to occur, or that it would have, at least, earned a mention in the Australian Law Reform Commission Report.
99 I am not persuaded that the Act should be read down on any such assumption. By reference to ordinary rules of statutory interpretation, where a witness answers the description of an "unavailable person" then s 65 should apply to its full effect.
100 This follows from the very precise and careful scheme of the Act, which provides for specific exceptions to the Rules otherwise stated, as well as for the mandatory or discretionary powers of exclusion contained in ss 135 to 137.
101 If s 65(2) was to be read down in the way suggested, then that would deprive it of all utility, since it assumes that the maker of the representations is not available for cross-examination. As mentioned later, however, I would regard that circumstance as a relevant consideration when the tender is considered in the light of sections 135 and 137 of the Act.
102 It was noted by his Honour that the Crown had not given notice in writing of its intention to adduce hearsay evidence in respect of Sakisi, as had been required by s 67(1). Nor had it sought leave for a direction under s 67(4) that, despite such failure, s 65(2) should apply. After the material had been admitted, his Honour's attention was drawn by the Crown to this oversight. Counsel for the appellant did not oppose a direction being given, accepting, as he did, that no particular unfairness had been involved through the absence of notice. In his reasons for allowing the evidence to be tendered, which were delivered after the ruling had initially been made, his Honour made reference to s 192, holding that the matter was "plainly one in which leave… was appropriate". I see no error in the approach that was taken at the trial, in relation to the request for leave. None of the considerations referred to in s 192 would have justified leave being refused.
103 A further submission advanced at the trial, but not at appeal, was that the tender of the ERISP would have involved second hand hearsay and would therefore have been inadmissible by reason of s 62 of the Act, which only permits first hand hearsay. This argument was rejected by his Honour upon the basis that the tender of the video in which Sakisi had described what had been said to him, or what he had seen, constituted a direct account, which would have been clearly admissible, had he been called as a witness. As such it was not second hand or remote hearsay, since he was describing events in which he had been a participant, or which he had personally witnessed.
104 His Honour accepted, however, that where Sakisi had repeated to the police assertions of fact by someone else, and where the only relevance of that evidence was the facts asserted, it would have been second hand hearsay. Similarly repetition by a police officer of Sakisi's account would have been second hand hearsay.
105 The distinction which his Honour drew accorded with the definition of hearsay in s 59 of the Act, and was plainly correct.
106 By reference to this distinction, his Honour held that the disclosure to the jury of Sakisi's account, through the tender of the video or audio tapes of the interview, did not offend the first hand hearsay rule, since the record was confined to his account of the words of the appellant, which she had addressed directly to him, and to those things which he or she had done following that request.
107 I am unable to see any error in the process of reasoning, which led his Honour to hold that the video could be tendered under s 65(2)(d), subject to its possible exclusion under s 135 or s 137 of the Act. To that issue I will return, although it may be noted that the argument on appeal, in that respect, was confined to s 137.