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District Court 26 April 2007

R v Tran

[2007] NSWDC 131

Drugs
CRIMINAL LAW EVIDENCE ACCUSED IN AGREED STATEMENT OF FACTS S65 EVIDENCE ACT.

Citation: R v Tran [2007] NSWDC 131
Court: District Court of New South Wales
Date: 26 April 2007
Judge(s): Norrish QC DCJ

Background

The accused was arraigned on a charge of supplying a commercial quantity of heroin, alleged to have occurred in November 2004 at Belmore, NSW. He pleaded not guilty. A co-accused, Giac Nguyen, had previously been sentenced for related offending, and an Agreed Statement of Facts had been tendered at that sentencing and relied upon by the sentencing judge.

The Crown sought to use portions of that Agreed Statement of Facts at the accused's trial. The relevant passages described the accused attending premises, carrying cash, counting it with the co-accused, and receiving heroin in exchange. The co-accused was brought to court but refused to give evidence, take an oath, or cooperate with the prosecution or the court in any way.

The accused applied to have those out-of-court representations excluded. The central question was whether the Agreed Statement of Facts, as a prior representation by an unavailable witness, could be admitted under the hearsay exceptions in the Evidence Act 1995.

  • Whether the co-accused was an "unavailable witness" for the purposes of s 65 of the Evidence Act 1995
  • Whether the relevant representations in the Agreed Statement of Facts were made "against the interests" of the co-accused at the time they were made, so as to satisfy s 65(2)(d)
  • Whether the representations constituted admissible "first-hand hearsay" under Part 3.2 of the Evidence Act
  • Whether, even if technically admissible, the evidence should be excluded under s 137 on the basis that its probative value was outweighed by the danger of unfair prejudice

Decision

The court accepted without dispute that the co-accused was an unavailable witness. His refusal to cooperate, take an oath, or answer questions meant that he fell within the relevant statutory definition, even accounting for the theoretical possibility of contempt proceedings being used to compel him.

The Crown's primary argument for admission was that the representations were made "against the interests" of the co-accused under s 65(2)(d). The court examined whether this threshold was met, considering what it means for a statement to be against a person's interests at the time it was made. Having considered the Agreed Statement of Facts and the circumstances in which it was produced, the court was not satisfied that the relevant representations met the requirements of that provision.

The court also considered the discretion under s 137 of the Evidence Act, which requires exclusion of evidence where its probative value is outweighed by the danger of unfair prejudice to the accused. Even assuming the s 65(2)(d) threshold had been met, the court indicated it would have exercised that discretion to exclude the evidence in any event. The court drew a distinction between the present circumstances and those in Suteski, where the reliability of the representations was supported by the nature of the document (an electronically recorded interview) and potentially other corroborating evidence.

The court concluded by acknowledging the seriousness of heroin supply offending, but emphasised that the proper application of the law, rather than achieving a particular outcome, was the governing concern.

Orders Made

  • The out-of-court representations made by the co-accused Giac Nguyen, as contained in the Agreed Statement of Facts (Exhibit 1), were not to be admitted in the trial of the accused Cong Khanh Tran.

Key Takeaways

  • The District Court confirmed that a witness who refuses to take an oath or cooperate with the court, even under the threat of contempt, can be treated as "unavailable" for the purposes of s 65 of the Evidence Act 1995.
  • Under s 65(2)(d), a prior representation by an unavailable person is only admissible to prove an asserted fact if it was made against the interests of that person at the time it was made. The court found this threshold was not satisfied on the facts presented.
  • Even where a prior representation technically satisfies a hearsay exception, s 137 of the Evidence Act requires exclusion if the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. The court found this balance favoured exclusion.
  • An Agreed Statement of Facts prepared for a co-accused's sentencing does not automatically become admissible hearsay at a separate co-defendant's trial simply because the maker of the representations is unwilling to give evidence.
  • The circumstances in which a prior representation is recorded are relevant to its reliability. The court distinguished the present case from Suteski, where an electronically recorded interview provided a more reliable foundation for admissibility.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), particularly s 65, s 137, and Part 3.2

Cases:
- Regina v Suteski [2002] NSWCCA 509
- Ordukaya v Hicks [2000] NSWCA 180