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Court of Criminal Appeal 21 August 2008

R v Morton

[2008] NSWCCA 196

Theft & property
CRIMINAL LAW UNAVAILABILITY OF PERSONS

Citation: R v Morton [2008] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 21 August 2008
Judges: McClellan CJ at CL, Barr J, Price J

Background

The respondent faced trial in the District Court on a charge of robbery arising from an incident in Leichhardt in February 2007. The alleged victim, a French national temporarily resident in Sydney, was robbed of his mobile phone and wristwatch at a bus stop. He made a statement to police with the assistance of a bilingual friend who interpreted between French and English, and he signed the statement once it was read back to him.

The victim's trial was initially delayed so that proceedings against a co-accused could be consolidated. By the time the joint trial was ready to proceed, the victim had returned to France. The Crown sought to tender his signed police statement under section 65 of the Evidence Act 1995 as evidence of what he had told police, on the basis that he was unavailable to give evidence in person.

The trial judge, Phegan DCJ, rejected the tender of the statement. The Crown appealed that ruling to the Court of Criminal Appeal under section 5F(3A) of the Criminal Appeal Act 1912.

  • Whether the statement, prepared with the assistance of an informal interpreter, was admissible at all, or constituted inadmissible hearsay upon hearsay
  • Whether section 65 of the Evidence Act 1995 permitted the statement to be tendered in circumstances where the maker was unavailable
  • Whether the circumstances in which the statement was made made fabrication unlikely, satisfying one of the gateways in section 65(2)
  • Whether the victim's act of signing the statement after it was read back to him was legally significant

Decision

The Court of Criminal Appeal, in reasons delivered by Barr J (with McClellan CJ at CL and Price J agreeing), allowed the Crown's appeal and set aside the trial judge's rejection of the tender.

On the hearsay-upon-hearsay argument, the Court rejected the respondent's submission that the statement involved an inadmissible extra layer of hearsay because of the interpreter's involvement. Barr J drew on the High Court decision in Gaio v R (1960) and reasoned that the process of informal interpretation used at the police station was of the same kind as a smooth court interpretation. When the victim signed the statement after it was read back to him, he adopted it as his own document, making the statement his first-hand representation.

On the section 65(2) fabrication question, the Court found that the circumstances made fabrication unlikely. The critical passage of the statement identified the respondent as the man who removed the victim's watch. The victim had no apparent motive to falsely implicate the respondent. The Court also rejected the argument that translation inaccuracies could themselves constitute or contribute to fabrication for the purposes of section 65(2), at least on the facts of this case, where the identification turned on a description of one of only two men present.

The Court expressly declined to resolve the question of the victim's unavailability, noting that further evidence and submissions on that issue would arise when the matter returned to the District Court. Similarly, the Court left aside questions about the adequacy of the hearsay notices that had been served.

Orders Made

  • The order by Phegan DCJ rejecting the tender of the witness's statement is set aside.

Key Takeaways

  • Where a witness makes a statement with the assistance of an informal interpreter and then signs the statement after it is read back, the Court of Criminal Appeal confirmed that the witness adopts the document as their own, rendering it first-hand hearsay capable of falling within section 65 of the Evidence Act 1995.
  • Section 65(2)(b) allows a previous representation to be admitted without its maker if it was made shortly after the relevant events in circumstances making fabrication unlikely. The absence of any apparent motive to falsely implicate an accused is a relevant consideration in that assessment.
  • A submission that translation inaccuracies could constitute or contribute to fabrication under section 65(2) was rejected on these facts, though the Court did not rule out that such an argument could ever be available in other circumstances.
  • The Court of Criminal Appeal expressly reserved the unavailability question for the District Court, a reminder that section 65 requires the maker's unavailability to be established and that this remains a separate threshold inquiry.
  • In allowing the Crown appeal, the Court set aside the evidentiary ruling rather than entering any finding on the merits of the trial, leaving outstanding issues to be determined when the matter returned to the District Court.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), section 5F(3A)
- Evidence Act 1995 (NSW), sections 65, 67

Cases
- Gaio v R (1960) 104 CLR 419
- R v Mankotia [1998] NSWSC 295
- R v Polkinghorne (1999) 108 A Crim R 189
- Conway v R (2000) 98 FCR 204
- Williams v R (2000) 119 A Crim R 490
- R v Ambrosoli [2002] NSWCCA 386
- R v Kazzi (2003) 140 A Crim R 545