R v Warwick

Section 65 Applications by the Crown

1. On 16 February 2018, the Crown served two Notices on the solicitors for the Accused pursuant to s 67 of the Evidence Act 1995.
2. These Notices related to previous representations made by two persons, namely Silvano Mariti and Shoukat Michael Abroo, who were once considered persons of interest, or possibly suspects, in relation to some, but not all, of the offences on the current Indictment. These two Notices will be referred to as the "Mariti Application" and the "Abroo Application" respectively.
3. The Crown submitted that, as Mr Mariti and Mr Abroo are both now deceased, they should each be considered "unavailable" to give evidence for the purposes of s 65 of the Evidence Act. The Accused did not dispute these two matters.
4. In respect of the Mariti Application, the Crown sought to adduce the following documents, which contain a number of representations upon which it intends to rely: No. Document Date Paragraphs 1 Transcript of Police interview with Mariti, annexed to Statement of Kevin Woods (dated 19 January 2018) 25 June 1980 Whole document 2 Transcript of Police interview with Mariti 12 March 1984 Whole document 3 Transcript of Police interview with Mariti 26 May 1984 Whole document 4 Transcript of Police interview with Mariti 5 June 1984 Whole document 5 Transcript of Police interview with Mariti 31 July 1984 Whole document 6 Transcript of Police interview with Mariti 12 December 1984 Whole document 7 Transcript of sworn evidence given by Mariti at a Coronial Inquest 13 August 1985 Whole document 15 August 1985

1. In respect of the Abroo Application, the Crown also sought to adduce the following documents, which contain representations upon which it intends to rely: No. Document Date Paragraphs 1 Transcript of Police interview 21 August 1984 Whole document 2 Transcript of sworn evidence given by Abroo at a Coronial Inquest 12 February 1987 Whole document

1. The Crown, in the Notice of each Application, also noted that in seeking to adduce the representations, it would primarily rely upon s 65(2)(a)-(d) of the Evidence Act. The Crown also indicated that it would rely, in the alternative, upon s 65(3) of the Evidence Act, or ss 285 and 287 of the Criminal Procedure Act 1986 (the "Procedure Act").
2. It is convenient to set out the relevant legislation and legal principles which apply to the determination of the admissibility of this evidence.

Legislative Framework

1. The material sought to be adduced by the Crown is, prima facie, hearsay evidence, being previous representations made by Mr Abroo and Mr Mariti to another person being an officer of the NSW Police, or else the Coroner.
2. The hearsay rule is expressed in the following terms in s 59 of the Evidence Act: "59 The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made. … "
3. Section 65 provides an exception to the hearsay rule in criminal proceedings. The section provides: "65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) 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: (a) was made under a duty to make that representation or to make representations of that kind, or (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 (c) was made in circumstances that make it highly probable that the representation is reliable, 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. Note: Section 67 imposes notice requirements relating to this subsection. (3) 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. Note: Section 67 imposes notice requirements relating to this subsection. … (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. … "
4. Clause 4(1)(a) of the Dictionary to the Evidence Act provides that a person is taken to be not available within the meaning of s 65 if they are dead.
5. Section 67 of the Evidence Act provides a "reasonable notice" requirement, requiring that the party seeking to adduce evidence formally notify the other party in writing of their intention to do so, and the legislative provision applicable. Any Notice must comply with clause 4 of the Evidence Regulations 1995.
6. Further, s 65 must be read in conjunction with the provisions of s 62 of the Evidence Act. They are (relevantly): "62 Restriction to 'first-hand' hearsay (1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. … "
7. The Crown in its initial Notices relied upon s 65(2)(a)-(d) of the Evidence Act.
8. In its written submissions, the Crown contended that ss 65(8) and 65(9) provided a basis for admission of the evidence. The effect of these two subsections is that: 1. the hearsay rule does not apply to evidence of a previous representation adduced by an accused person if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; and 2. if such evidence is admitted, the hearsay rule does not apply to evidence of other previous representations 'about the matter' that is adduced by another party if the evidence is given by a person who saw, heard or otherwise perceived the representation being made.
9. Notice requirements apply to s 65(8), but not to s 65(9).
10. The Crown further submitted that: "To the extent that there are some discrete areas of the evidence given by Mariti and Abroo that do not fall neatly within the operations of ss 65(8) and 65(9) … these other areas would be otherwise admissible under either [ss] 60 or 108B of the [Evidence] Act."
11. In brief, s 60 of the Evidence Act provides that the hearsay rule does not apply to evidence of a previous representation that is relevant for a purpose other than proof of an asserted fact. The Crown submitted that this would apply to representations in the statements of Mr Abroo and Mr Mariti that are relevant only because they contextualise the other parts of their testimony.
12. Section 108B of the Evidence Act further provides, in effect, that if evidence of a previous representation made by an unavailable witness has been admitted, credibility evidence about a person who made the previous representation may be admissible if it could substantially affect the assessment of that person's credibility. The Crown advanced that this would apply to previous representations made by Mr Abroo and Mr Mariti that may tend to prove that either witness had made a prior inconsistent statement.

Alternative Bases for Admissibility

1. In respect of the previous representations made by Abroo in the Coronial Inquest, the Crown in the alternative also relied upon s 65(3) of the Evidence Act and ss 285 and 287 of the Procedure Act.
2. Section 65(3) provides a further exception to the hearsay rule for evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding, provided that the Accused in the present matter cross-examined the person making the representation, or had reasonable opportunity to do so.
3. The Crown submitted that a Coronial Inquest would fall within the broad and general definition of "Australian or overseas proceeding" in the Dictionary to the Evidence Act, which defines that term as "a proceeding (however described) in an Australian court or foreign court".
4. A defendant will be taken to have had a reasonable opportunity to cross-examine the person who made the representation if the defendant was not present at a time when the cross-examination of the person might have been conducted, but could reasonably have been present at that time, and if present could have cross-examined the person: Evidence Act s 65(5).
5. An authenticated transcript or authenticated recording can be used as evidence of the making of the representation being relied upon for the purposes of s 65(3): s 65(6). For present purposes, such a transcript may be considered authenticated if it has been authenticated by the person responsible for producing the transcript.
6. Section 285 of the Procedure Act relates to the admissibility of depositions as evidence for the prosecution in a criminal trial. It provides as follows: "285 Depositions tendered by prosecution (1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters: (a) that the deponent: (i) is dead, … (ii) …, (b) that the deposition was recorded: (i) by or in the presence of the Judge before whom it was taken, and (ii) in the presence of the accused person or during any period when the accused person (having been excused under section 72) was absent, (c) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 72) was absent when the deposition was taken and was not represented by an Australian legal practitioner. (2) The deposition: (a) … (b) must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions. (3) If the deposition is in the form of a written transcript referred to in subsection (2) (b), it must be proved on oath: (a) that the record so made is a true record of the matter so deposed, and (b) that the transcript of the record is a correct transcript of that record. (4) If it appears from the deposition: (a) that it was made in the presence of the accused person, and (b) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, the deposition is taken to have been so made and the accused person, or his or her Australian legal practitioner, is taken to have had such an opportunity, unless proved to the contrary. (5) …: (a) … (b) … (6) In this section: 'Judge' includes a coroner holding office under the Coroners Act 2009."
7. Pursuant to s 285(6), 'judge' includes a Coroner. Further, the term "deposition" includes a record of proceedings before a Coroner: R v Li [2003] NSWCCA 386; (2003) 140 A Crim R 288 at [30] per Dunford J (Spigelman CJ and Hidden J agreeing).
8. Section 287 of the Procedure Act provides, in summary, that a written transcript of a deposition will be taken to be a correct transcript unless the contrary is proven, and that a transcript made other than by handwriting will be certified in the manner prescribed by the rules. The rules in force at that time, the Justices Act (Transcripts) Regulations 1976, provided that a transcript of Coronial proceedings was to be certified by the person preparing the transcript as a correct transcript of the deposition recorded.
9. The combined effect of ss 285 and 287 in this matter is, relevantly, that: 1. where a now deceased witness gave evidence in a Coronial Inquest; and 2. the Accused, or his legal representative, had a full opportunity to cross-examine the witness; and 3. where a deposition of that evidence exists in the form of a transcript; and 4. where that transcript has been certified as being correct by the person who prepared it; then 5. the deposition may be admitted as evidence for the Crown at the trial of the Accused.
10. Of course, even if the terms of ss 285-287 are met, a general discretion to exclude evidence remains where the prejudicial effect of the evidence would outweigh its probative value, or would result in an unfair trial: R v Stackelroth (1996) 86 A Crim R 438 at [2] per Hunt CJ at CL. There is no issue of unlawfulness or impropriety in the obtaining of the evidence sought to be adduced in the Abroo and Mariti Applications.

Legal Principles

1. In considering the admissibility of the evidence sought to be adduced by the Crown in the Abroo and Mariti Applications, it is important to bear in mind that in Sio v The Queen [2016] HCA 32; (2016) 259 CLR 47 the High Court cautioned in a unanimous judgment: "[60] It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion. . ."
2. The hearsay representations here do not inculpate the accused directly and do so indirectly because Mr Abroo and Mr Mariti denied being involved in the offences.
3. Section 65 operates on the footing that the circumstances in which the representation was made may be seen to indicate that the representation is likely to be reliable, and therefore that "the dangers which the rule seeks to prevent are not present or are negligible in the circumstances": Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 293; Sio at [63].
4. The High Court in Sio at [57] clarified the approach to be taken when considering the admissibility of a representation made by an unavailable witness in criminal proceedings, which may be summarised as follows: 1. as a threshold issue, the particular fact sought to be proved must be relevant to an issue in the case; 2. it is then essential that the particular representation or representations to be adduced in evidence as proof of that fact be identified with some precision; and 3. the circumstances in which each particularised representation was made can then be considered in order to determine whether the conditions of admissibility are met.
5. Further, the requirements of s 65 are to be considered separately and not in a compendious way: Sio at [58]; R v Droudis (No. 7) [2016] NSWSC 1274 at [7] per Johnson J.

Particular Representations

1. As has been addressed above, it is necessary that the Crown, as the party making the Mariti and Abroo Applications, identifies with precision the particular previous representations sought to be adduced under s 65: Sio at [57]. In the Notices to the lawyers for the Accused on 16 February 2018, the Crown provided the documents containing the relevant representations, but did not identify any specific representations in these documents.
2. However, the Crown in its written submissions on 5 March 2018, provided a 21 page index in table form. This index specified the previous representations the Crown would seek to adduce from the documents tendered in the Notices in respect of both Mr Abroo and Mr Mariti. For example, two of the representations particularised from Mr Mariti's Police interview of 12 March 1984, are "That he [Mariti] had never been involved with explosive material", and "That he had never appeared before Justice Gee…".
3. In submissions, the Accused dealt with the documents tendered by the Crown as a whole. No objection was taken to any particular representation contained within any of these documents. No submission was made that the Court should approach these applications in any different way.
4. It will therefore be appropriate to address the admissibility of the documents as a whole, adopting the sensibly pragmatic approach of the Accused.

Submissions of the Accused

1. In correspondence dated 3 April 2018, the lawyers for the Accused informed the Crown that there was "no objection to the Crown's section 65 notice regarding the evidence of Mr Mariti and Mr Abroo." Mr Conolly, the solicitor for the Accused, later informed the Court in oral submissions that this position had been reconsidered.
2. Although the Accused accepted that both Mr Abroo and Mr Mariti are now deceased and therefore unavailable to give evidence, it was submitted that it would be inappropriate to admit the representations made by Mr Mariti and Mr Abroo, as particularised in the Abroo Application and the Mariti Application, as evidence against the Accused.
3. In support of this proposition, Mr Conolly submitted that the admission ought be refused by the Court because Crown may not have served all evidence by way of disclosure in the form of Police notebooks or other records of police or investigators' statements relating to all representations made by Mr Abroo or Mr Mariti. Mr Conolly noted that his submission covered all material, whether admissible or not. Mr Conolly contended that the "evidentiary position [was] incomplete", and particularly emphasised the fact that a subpoena issued to the Commissioner of the NSW Police was still outstanding. Ultimately, Mr Conolly considered that it was "critically important" that any records held by the NSW Police be produced and examined before the Court should grant the Crown's application.
4. The basis of Mr Conolly's submissions seemed to be that it was "common knowledge" of "how Police operate" that compelled a conclusion that further records relating to Messrs Mariti and Abroo would be held by the Police.

Discernment

1. In my view, it is irrelevant for the purposes of determining the admissibility of the representations in the Mariti and Abroo Applications that the Crown or the NSW Police may not have tendered or disclosed all existing records of any previous representations made by Mr Mariti and Mr Abroo.
2. The Crown is not required to tender every representation made by an unavailable witness. It is entitled to adduce those previous representations which it seeks to rely upon as evidence of "an asserted fact": Evidence Act s 65(1).
3. If further representations come to light as a result of the Crown's ongoing disclosure obligations, or as a result of subpoenas issued by the Accused, the Accused is entitled to put forward his own application under s 65 to admit any further representations sought to be relied upon. Such applications fall to be considered under s 65(8) of the Evidence Act.
4. It may be observed that the exclusionary rules in ss 135-137 of the Evidence Act must be read with s 65. In the event that further documents are shown to exist that satisfy me that the probative value of the evidence (namely the representations contained in the Abroo and Mariti Applications) would be substantially outweighed by the danger that the evidence might be, relevantly, unfairly prejudicial to the Accused, or misleading or confusing, the Court has a discretion to exclude it or limit its use: Evidence Act ss 135-136; see Puchalski v R [2007] NSWCCA 220 at [95] per Smart AJ.
5. Further, as these are criminal proceedings, the Court is obliged to refuse to admit evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the Accused.
6. No submissions to this effect were made. If that position was to change in the course of the trial by reason of the leading of other evidence, then it is open to the Accused to seek to have the rulings on admissibility reversed.

Orders

1. I will admit the evidence of Mr Silvano Mariti which comprises records of interview which occurred on the following dates: 25 June 1980; two on 12 March 1984; 26 May 1984; 5 June 1984; 31 July 1984 and 21 December 1984.
2. I will also admit pursuant to s 65(3) of the Evidence Act, the evidence that Mr Mariti gave at the Coronial Inquest on 13 and 15 August 1985.
3. I will admit the record of interview dated 21 August 1984 of Mr Michael Shaoukat Abroo.
4. I will also admit, pursuant to s 65(3) of the Evidence Act, the evidence Mr Abroo gave at the Coronial Inquest on 12 February 1987.

Amendments 18 February 2020 - Non publication order lifted on 14 February 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2020