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Court of Criminal Appeal 28 August 2003

Regina v Kazzi; Regina v Williams; Regina v Murchie

[2003] NSWCCA 241

Also reported as (2003) 140 A Crim R 545
Theft & propertyPublic order & justice offences
EVIDENCE CRIMINAL LAW EVIDENCE ACT, S 65

Citation: Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241
Court: New South Wales Court of Criminal Appeal
Date: 28 August 2003
Judge(s): Ipp JA; Grove J; Dowd J

Background

Three accused faced trial in the District Court on charges including armed robbery. The Crown alleged that on 13 May 2001 at Fairfield, each accused, armed with a shotgun, robbed a witness (referred to here as the complainant) of a large quantity of mobile phones and accessories belonging to Mayne Nickless Limited.

The complainant had given a statement to police shortly after the robbery. He subsequently left Australia in August 2001 on a flight to India, and the Crown was unable to secure his attendance at trial. His statement was described as crucial to the Crown case: without it, the Crown could not prove the charge.

The Crown sought to tender the statement as hearsay evidence under s 65 of the Evidence Act 1995 and s 289 of the Criminal Procedure Act 1986. The trial judge, Robison DCJ, ruled the statement inadmissible. The Crown appealed that ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the Crown had taken "all reasonable steps" to find the complainant or secure his attendance, satisfying the requirement that he was "not available to give evidence" under s 65 of the Evidence Act 1995
  • Whether the complainant's statement was made in circumstances making fabrication unlikely, as required by s 65(2)(b)
  • Whether any doubt about the complainant's English language ability undermined admissibility
  • Whether admitting the statement would cause the respondents relevant prejudice

Decision

Availability of the witness. The Court accepted that police made extensive and reasonable inquiries within Australia. Although police did not begin those inquiries until late July 2003, some two years after the complainant left the country, the Court found this delay did not amount to a failure to take reasonable steps. Any earlier Australian inquiries would have been fruitless once the complainant had departed in August 2001.

Inquiries in India. Robison DCJ had focused on the police's failure to make inquiries in India. The Court of Criminal Appeal disagreed with that reasoning. Given that nothing was known about the complainant's address, business, or family connections in India, and given the size and population of that country, it was not incumbent on the police to conduct inquiries there. Ipp JA noted this conclusion was limited to the particular circumstances of the case and did not mean police could never be required to make overseas inquiries.

English language competence. The trial judge had also raised concerns about whether the complainant understood English. The Court found this reasoning was misplaced. The mere fact that a person holds an Indian name, travels on an Indian passport, and returned to India does not, without more, raise a relevant doubt about English language ability. Furthermore, nothing in the content of the statement itself suggested any language difficulty: the complainant recounted words spoken to him in English by the accused without indicating any misunderstanding.

Alleged prejudice. The respondents argued they would suffer prejudice because the statement included a description of a vehicle registration number similar to one connected with a separate charge. The Court found this did not constitute relevant prejudice for the purpose of determining admissibility. In all circumstances, Robison DCJ was found to have erred in refusing admission of the statement.

Orders Made

  • The order made by Robison DCJ, ruling that the statement of the complainant dated 13 May 2001 was not admissible in evidence, be vacated.

Key Takeaways

  • Under s 65 of the Evidence Act 1995, a witness is "not available" where all reasonable steps to locate or secure attendance have failed. Delayed police inquiry does not automatically constitute a failure to take reasonable steps if earlier inquiry would have been equally fruitless.
  • Where a missing witness is believed to be overseas, the obligation to conduct inquiries in that foreign jurisdiction depends on the particular circumstances. No such obligation arose here given the complete absence of any identifying information about the witness's location within India.
  • A person's apparent cultural or national background does not, without further evidence, raise a sufficient doubt about English language competence to block admission of a hearsay statement under s 65(2)(b).
  • Once some evidence is raised casting doubt on a proposed witness's grasp of English, the burden shifts to the tendering party to prove the maker of the statement properly understood and spoke the language.
  • The potential evidential significance of a document to other charges does not, of itself, constitute relevant prejudice for the purpose of determining whether a hearsay statement should be admitted.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 65 and Dictionary, Part 2, cl 4(1)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 289