Citation: R v Natasha YOUKHANA [2011] NSWDC 204
Court: District Court of NSW
Date: 25 October 2011
Judge(s): Judge Haesler SC
Background
The accused had pleaded guilty to knowingly dealing with the proceeds of crime under s 193B(2) of the Crimes Act 1900 (NSW). A key contested question for sentencing was the total amount involved in the offending. The Crown contended the figure was approximately $4.64 million; the defence disputed roughly $2 million of that amount.
The disputed portion of the prosecution's facts document was based on allegations by a witness, Torelli, who had made a statement to NSW Police in November 2007. That statement related to events between March 2006 and March 2007 and implicated the accused in handling large sums of illicitly obtained cash. By the time of the sentencing proceedings, Torelli was unavailable to give evidence, and the Crown sought to admit his statement as hearsay under s 65 of the Evidence Act 1995 (NSW).
The defence objected both to the statement's admissibility under s 65 and, in the alternative, submitted that s 137 required its exclusion on the ground that its probative value was outweighed by the danger of unfair prejudice.
Legal Issues
- Whether the Evidence Act 1995 applied to the sentencing proceedings (following a direction that it did).
- Whether Torelli's prior statement was admissible under s 65(2)(b) as a representation made shortly after the relevant facts occurred, in circumstances making fabrication unlikely.
- Whether the statement was alternatively admissible under s 65(2)(d) as a representation made against interest in circumstances making it likely to be reliable.
- Whether, even if technically admissible, the statement should be excluded under s 137 because the danger of unfair prejudice outweighed its probative value.
Decision
Issue 1: Admissibility under s 65(2)(b) (unlikely fabrication)
The court accepted that the statement was made "shortly after" the relevant events, noting that the term requires contextual flexibility and taking into account the availability of contemporaneous banking records. Applying the fabrication test, the court found the relevant circumstances included Torelli's prior dishonesty before the Crime Commission, his subsequent awareness that investigators could check his account, and his exposure to criminal liability if he lied again. The court concluded that, on balance, the Crown had established it was unlikely the statement was fabricated.
Issue 2: Admissibility under s 65(2)(d) (against interest and likely reliable)
The court found the statement was clearly against Torelli's interests: it was damaging to his reputation and disclosed conduct for which he had not been convicted. The defence did not contest this element. On the question of reliability, the court noted that portions of the statement had already been confirmed by the accused's own guilty pleas, and that Torelli had strong incentives not to lie given his prior detection in dishonesty. The court acknowledged a real possibility that Torelli had downplayed his own role and amplified the accused's, but held that this did not prevent admission.
Issue 3: Exclusion under s 137
The court acknowledged the difficulty of weighing incommensurable considerations. It identified the statement's considerable probative value in determining the extent of the accused's dealing with the proceeds of crime. The court was satisfied that, while it remained alert to the risk of using the evidence improperly, that risk was unlikely to materialise. The statement was admitted. The court also noted that the prosecution would still need to establish the relevant amount beyond reasonable doubt, using this statement alongside all other evidence.
Orders Made
- Evidence admitted.
Key Takeaways
- Under s 65(2)(b) of the Evidence Act 1995, the test for admitting an unavailable witness's prior statement is fabrication (or concoction), which is a narrower inquiry than the general reliability test applicable under s 65(2)(d).
- The term "shortly after" in s 65(2)(b) is applied flexibly, with relevant considerations including the temporal gap, the maker's familiarity with the subject matter, and the availability of contemporaneous documents to assist recall.
- A prior instance of dishonesty by the statement-maker does not automatically defeat an application under s 65(2): the court assessed it as one circumstance among many, alongside the maker's exposure to criminal liability and the ability of investigators to verify the account.
- Where a judge sits as the tribunal of fact, the s 137 discretion to exclude evidence still applies, but the court found the danger of unfair prejudice was unlikely given the judge's ability to confine use of the statement to its proper purpose.
- Admission of the statement under s 65 did not resolve the substantive sentencing question: the Crown retained the burden of proving the disputed amount beyond reasonable doubt by reference to the totality of the evidence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW)
Cases
- Jang [1999] NSWSC 1040
- Suteski (No 4) (2002) 128 A Crim R 275
- Ambrosoli (2002) 55 NSWLR 603
- Mankotia [1998] NSWSC 295
- Conway (2000) 98 FCR 204