R v T

• 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

(Judgment re Crown application pursuant to s. 65 of the Evidence Act)

JUDGMENT 1 SHAW J: This is an application by the Crown in a murder trial to rely upon s 65 of the Evidence Act, (the Act), an exceptional provision which allows prior evidence of representations to be placed into evidence if the maker is not available. The short facts of the present case are that four young men at Berala on Sunday 23 February 1997 became involved in an altercation with a person who subsequently died of stab wounds. One of those involved is being tried on a charge of murder. The other three pleaded guilty to the offence of assault causing actual bodily harm and were sentenced on that basis. Two of the persons involved in the incident have given evidence before the jury in the present case, but one of them is said not to be available because he has gone to Greece. The Crown therefore wishes to tender the examination-in-chief and cross-examination of the witness, whom I shall refer to as S, given at a trial before Howie J in October 2001 and extending through approximately 100 pages of transcript.

2 At first, the Crown's application focussed upon s 65(2) which deals with "previous representations" and it was said that the hearsay rule, found in s59 of the Act, did not apply to evidence of that kind because of the considerations in (a) and (d) of subsection 2. Those provisions involve circumstances where the representation was made under a duty to make that representation or to make representations of that kind; or where the representation was against the interests of the person who made it at the time it was made. It was said by the Crown that the duty to make the representation arose from the fact that the witness had been called to give evidence at the trial and also that the giving of that evidence was against his interests because, although he had been sentenced prior to the evidence being called, s 65(7) gives an extended definition of what is "against the interests of the person", including a tendency to damage the person's reputation. As the debate proceeded, attention focussed more specifically upon s 65(3) as being the relevant provision. That sub-section provides that: The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or;

(b) had a reasonable opportunity to cross-examine the person who made the representation about it. 3 The scheme does seem to envisage a dichotomy between a previous representation, dealt with in s 65(2), and evidence previously given which is dealt with in 65(3). Also relevant to the argument is the dictionary definition, in s 4 (of the Act) which so far as is material provides: For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (e) all reasonable steps have been taken, by the party seeking to prove the person who is not available, to find the person or to secure his or her attendance, but without success

Reinforcing that dichotomy is the judgment of the Court of Criminal Appeal in R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182. In the course of his judgment, with which the other members of the Court agreed, Wood CJ at CL referred with apparent approval to the discussion by the trial judge, Kirby J, of the structure and purpose of s 65 of the Act. The reference to the analysis of the Kirby J is in the following terms (at [89]): 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 have 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.

The court declined to accept the submission which called for the reading down of s 65(2) to reflect a policy evident in subsections (3), (4) and (5).

4 If it is necessary to do so, I find that the preconditions of s 65(2) have been met and, in particular, that all reasonable steps to find the person or secure his attendance have been taken by or on behalf of the Crown. At first that may not have been so, but as the argument continued, and in the light of the cross-examination of the investigating police officer, a number of further and subsequent steps were taken, including contacting the Australian and international police authorities in Europe, and evidence was given that it would simply not be practicable to locate the potential witness in the time frame required at this trial. This was partly because of general evidence about difficulties in securing the attendance of people who are residing in Greece and who are Greek citizens, even where location can be established, and, so it was said, because of the involvement of the Greek law enforcement authorities with the forthcoming Olympic games in Athens. The young man's mother was further visited and enquiries made of her as to contact and knowledge of her son's whereabouts. This was also unsuccessful. 5 As I have said the more relevant provision seems to me to be s 65(3) and it is common ground, save for some proposed new Crown evidence to which I shall refer, that the elements of that subsection have been met by reason of the fact that the potential witness has been extensively cross-examined by counsel (although not the accused's present counsel) for the defence in two earlier trials. This cross-examination included a testing of various pieces of evidence in the witnesses' statement suggesting that a knife had been seen in the hands of the accused person on the night.

6 The essence of the defence submission points to the lack of notice which counsel for the defence had been given of an intention by the Crown to tender evidence, which had not been put before the jury in either the first or second trials, which involved photographs said to have been taken depicting a collection of knives said to have been found at the accused mother's house. Counsel for the defence submits that, because of the absence of S, he would be unable to cross-examine him as to whether any of the knives meet the description of the knives said to have been present at the scene of the alleged crime.

7 On the other hand, the Crown urges me to leave aside the question of knives and to deal with that in the context when, and if, an application is made to tender that evidence. The Crown emphasises the otherwise full and complete compliance with s 65(3) and says that if the circumstantial evidence is tendered by the Crown, then an objection to it can be considered at that time. There may be some argument whether the new circumstantial evidence is admissible in any event, although I do not rule on it at this stage: see, for example, Driscoll v R (1977) 137 CLR 510. 8 Nevertheless, I am troubled by the possible prejudice to the accused by the tender, at least if ultimately further and fresh evidence is admitted. I refer to s 137 of the Act which provides that: in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 9 This material emanating from a witness to the alleged crime does have a high probative value in the sense that it could substantially rationally affect the assessment of the probability of the existence of a fact in issue. I cite the observation of Hunt CJ at CL in R v Carusi (1997) 92 A Crim R 52 at 66: the trial judge can exclude the evidence only where, taken at its highest, its probative value is outweighed by its prejudicial effect. 10 It is well established that evidence is not unfairly prejudicial to a defendant merely because it makes it more likely that the defendant will be convicted. However, the admission of further material not tendered at the earlier trial, and therefore not the subject of cross-examination, is problematic. I agree with the Crown submission that its admissibility, having regard to s 137 of the Act should be dealt with in the concrete circumstances of a tender. It may never be tendered. The Crown was somewhat equivocal about its intentions in the submissions put to me. 11 Hence, I would conclude that the witness's evidence, which, in all respects, has been the subject of cross-examination by competent counsel should be admitted and read to the jury but the position of any further tender which might have impacted on that cross-examination will need to be very carefully considered indeed in due course.

12 I note also that there are provisions as to warnings about "unreliable" evidence, including hearsay evidence: see s 165(1) and (2), which can be given to the jury in respect of this evidence by me in due course. **********

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