R v Yavuz

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Matouk Joyner Lawyers (Accused) File Number(s): 2015/335208

Judgment

1. The background to this matter is set out in R v Yavuz (No. 1) [2017] NSWSC 1645.
2. At the retrial in this matter the Crown sought to tender, during the evidence of Youness Elmrabt, the recording and transcript of the triple-0 call which Mr Elmrabt made immediately after the stabbing of the deceased occurred. Mr Littlemore QC objected to the tender on the basis that it was a prior consistent statement, that s 108(3)(b) of the Evidence Act 1995 (NSW) dealt with prior consistent statements, and that what is provided in s 108(3)(b) does not make it admissible.
3. The Crown relied on s 66A for the admissibility of the material, but in the alternative on s 66.
4. I ruled that the triple-0 call was admissible. These are my reasons for so doing.
5. The Evidence Act relevantly provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. … 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. … 66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned, and (b) the age and health of the person, and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note. Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons. 66A Exception: contemporaneous statements about a person's health etc The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind. … 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) (Repealed) (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement.