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District Court 21 July 2011

R v Ali ALKAN

[2011] NSWDC 107

Assault & violenceTheft & property
CRIMINAL LAW MADE STATEMENT TO POLICE 4 DAYS LATER DIED SOME MONTHS LATER

Citation: R v Ali Alkan [2011] NSWDC 107
Court: District Court of New South Wales
Date: 21 July 2011
Judge: Cogswell SC DCJ

Background

The accused faced charges of bashing and robbing a man on 10 May 2010. The prosecution's case rested almost entirely on four pieces of evidence from the complainant: a triple-0 call made the day after the alleged assault, an account given to police who responded to that call, a formal statement to police made four days later, and a statement made several months later following a photographic array in which the complainant identified the accused.

The complainant died in early January 2011, before the matter came to trial. The prosecution therefore sought to tender all four documents in lieu of live testimony.

The tender was contested. Defence counsel argued that none of the four items satisfied the requirements of section 65(2) of the Evidence Act 1995, which creates an exception to the hearsay rule where a maker of a representation is unavailable to give evidence.

  • Whether each of the four representations by the deceased complainant was admissible under section 65(2)(b) of the Evidence Act 1995 (made shortly after the asserted fact, in circumstances making fabrication unlikely)
  • Whether the later formal statement was admissible under section 65(2)(c) (made in circumstances making reliability highly probable)
  • Whether the photographic array statement constituted identification or recognition, and what the "asserted fact" was for the purposes of section 65(2)
  • What weight to give to evidence of the complainant's drug use, mental health issues, and a prior unrelated complaint that was withdrawn due to his unreliability

Decision

The triple-0 call and the oral account to police (section 65(2)(b)): Cogswell SC DCJ found these two representations admissible. The complainant's own account was that he lost consciousness after the assault and did not wake until approximately 11am the following day, which explained much of the delay before the call. The judge accepted that the representations were made "shortly after" the events under the proximate pressure of those events. More significantly, the focus of section 65(2)(b) is on fabrication rather than reliability. The police observations of the complainant and his injuries on the evening of 11 May were consistent with his account, and the complainant did not appear to be affected by drugs or alcohol at that time. Those circumstances made it unlikely that the representations were fabricated.

The formal statement of 14 May 2010 (section 65(2)(c)): His Honour rejected this statement. By the time it was made, four days had elapsed since the alleged assault. The higher threshold in section 65(2)(c) requires circumstances making reliability "highly probable," a standard the Full Court of the Federal Court has described as imposing "onerous requirements." Given the complainant's known drug addiction, mental health issues, his admitted state of confusion after the events, and the existence of an unrelated later complaint that was withdrawn due to his changing versions, the court was not satisfied that the circumstances made reliability highly probable.

The photographic array statement of 4 November 2010: The court admitted this statement, accepting the prosecution's argument that the complainant and the accused already knew each other before the alleged assault. The asserted fact was not a fresh identification of a stranger but a representation that the complainant recognised, at the time he viewed the photograph, someone already known to him. Applying the distinction drawn in Regina v Gee between identification and recognition, the court found this was a compelling act of recognition. The circumstances made fabrication of that recognition unlikely.

The distinction between fabrication and reliability: A central thread in the reasoning was the difference in focus between sections 65(2)(b) and 65(2)(c). Evidence going to a witness's general unreliability does not automatically make fabrication likely. The court treated these as distinct concepts, and that distinction drove the different outcomes for the earlier and later representations.

Orders Made

  • The hearsay rule does not apply to the triple-0 call and the oral account to police of 11 May 2010 (Exhibit VDA, tabs 6 and 7): tender admitted.
  • The hearsay rule does not apply to the photographic array statement of 4 November 2010 (Exhibit VDA, tab 5): tender admitted.
  • The hearsay rule applies to the formal statement of 14 May 2010 (Exhibit VDA, tab 4): tender rejected unless pressed on another basis.

Key Takeaways

  • Under section 65(2)(b) of the Evidence Act 1995, the central question is whether circumstances make fabrication unlikely, not whether the representation is reliable in a broader sense. Evidence of a declarant's general unreliability does not, without more, establish that a representation was fabricated.
  • Section 65(2)(c) carries a higher and more demanding threshold: the circumstances must make reliability "highly probable." A declarant's drug addiction, mental health difficulties, admitted post-event confusion, and a history of changing versions can collectively defeat this standard.
  • The passage of time matters differently under the two provisions. A delayed report may still satisfy section 65(2)(b) where the delay is explained by the circumstances (such as unconsciousness), but the same delay works against the higher reliability threshold in section 65(2)(c).
  • Where a complainant and an accused were already known to each other, a photographic array may constitute an act of recognition rather than identification. Following Regina v Gee, the "asserted fact" in such cases is the declarant's current recollection of a person already known, which can satisfy section 65(2)(b).
  • Cogswell SC DCJ confirmed that "fabrication" means a representation that is made up or concocted, a concept distinct from mere unreliability or inconsistency in a witness's account.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), section 65(2)(b) and (c)

Cases
- Harris v The Queen (2005) 158 A Crim R 454
- Regina v Gee [2000] NSWCCA 198
- Regina v Williams (2000) 119 A Crim R 49