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19
Court of Criminal Appeal 30 September 2002

R v AMBROSOLI

[2002] NSWCCA 386

Also reported as (2002) 55 NSWLR 603
Assault & violence
EVIDENCE ACT S65(2)(B),(C) & (3) JUSTICES ACT S48AA, 48A

Citation: R v Ambrosoli [2002] NSWCCA 386
Court: NSW Court of Criminal Appeal
Date: 30 September 2002
Judges: Mason P, Hulme J, Simpson J

Background

The appellant was convicted in the District Court of malicious wounding and assault arising from an altercation at a New Year's Eve celebration at a hotel near Taree on 1 January 2000. He received a four-year sentence with a two-year non-parole period for the wounding, and a concurrent one-year sentence for the assault.

The prosecution case was that the appellant struck the victim in the face with a glass, causing serious lacerations, and subsequently kicked him in the head. The appellant did not dispute being present or involved, but maintained in a police record of interview that the glass incident was accidental and the kicking was in defence of himself and a family member. The jury rejected those explanations.

A key piece of Crown evidence was the statement and committal transcript of a witness, Shane Cornish, who had attended court under subpoena but then failed to return during the trial and could not be located. The trial judge admitted Cornish's prior statement and committal evidence over defence objection, and this formed the single ground of appeal.

  • Whether the trial judge erred in admitting the prior statement and committal transcript of an unavailable witness under s 65(2)(b), (c) and (3) of the Evidence Act 1995 (NSW)
  • Whether the material satisfied the requirements of s 65(2) (representations made shortly after the event and unlikely to be fabricated, or highly probable to be reliable) and s 65(3) (representations made in prior proceedings where the defendant had opportunity to cross-examine)
  • Whether the evidence should have been excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the defendant

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Mason P (with Hulme J and Simpson J agreeing) found no error in the trial judge's decision to admit Cornish's evidence under s 65.

The trial judge had found, unchallenged on appeal, that Cornish was deliberately evading his subpoena and was therefore "not available" within the meaning of s 65(1). His Honour then found that Cornish's police statement satisfied s 65(2)(b) and (c): it was made in circumstances making fabrication unlikely and the representation was highly probable to be reliable, notwithstanding some vagueness. As to Cornish's committal evidence, s 65(3) was satisfied because the defendant had the opportunity to cross-examine Cornish at the committal hearing.

On the s 137 argument, Mason P held that the submission misconceived the provision's purpose. Section 137 targets "unfair prejudice" in the sense of a real risk that a jury will misuse evidence in some improper way. The fact that evidence is hearsay, or that it is damaging to the accused, does not make its admission unfairly prejudicial. The jury had access to the full committal transcript and were able to assess Cornish's evidence in its entirety.

Mason P also noted that a direction under s 165 (cautioning the jury about the potential unreliability of hearsay evidence from a witness not present for cross-examination) could have been sought but was not. The absence of Cornish from the witness box was itself an obvious matter requiring no further judicial comment.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Under s 65(2)(b) and (c) of the Evidence Act 1995 (NSW), a prior representation by an unavailable witness may be admitted if it was made in circumstances making fabrication unlikely or if it is highly probable to be reliable. Some vagueness in the representation does not necessarily undermine that finding.
  • Section 65(3) permits admission of a prior representation made in committal proceedings where the defendant had a reasonable opportunity to cross-examine the maker, even if that cross-examination opportunity was not fully exercised.
  • A finding that a witness is deliberately evading a subpoena satisfies the "not available" precondition in s 65(1), and such a finding was left undisturbed on appeal.
  • Section 137 does not operate simply because evidence is hearsay or because it points strongly to guilt. The unfair prejudice test requires a real risk of misuse by the jury, not merely that the evidence is harmful to the defence.
  • In dismissing the appeal, the Court confirmed that the Evidence Act has changed the common law approach to hearsay, and courts must give proper weight to that change rather than defaulting to common law suspicion of such evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 65(2)(b), 65(2)(c), 65(3), 67, 137, 165
- Justices Act 1902 (NSW), ss 48AA, 48A-H

Cases:
- R v GK (2001) 53 NSWLR 317
- R v BD (1997) 92 A Crim R 131
- Papakosmas v The Queen (1999) 196 CLR 297
- Ordukaya v Hicks [2000] NSWCA 180
- R v Lisoff [1999] NSWCCA 364
- R v Toki (2000) 116 A Crim R 536