Citation: R v Basanovic and ors (No. 4) [2015] NSWSC 1100
Court: Supreme Court of New South Wales
Date: 13 August 2015
Judge(s): Davies J
Background
The accused were standing trial in connection with a shooting. The Crown sought to tender extracts from a transcript of an examination of a witness, Andre James, conducted at the NSW Crime Commission in approximately March 2013. Mr James was a friend or acquaintance of two of the accused and had given evidence relevant to the purchase of a vehicle and to alleged admissions made to him about the shooting.
By the time of trial, Mr James was in the Las Vegas area of the United States. He told police he was unwilling to return to Australia to give evidence and unwilling to testify via audio-visual link, citing his pregnant fiancée as a reason for remaining in the US. The Crown sought to admit the transcript as hearsay evidence under s 65(2) of the Evidence Act 1995 (NSW), on the basis that Mr James was unavailable.
All accused opposed the tender. After hearing argument, Davies J indicated the evidence would be rejected and later published these reasons.
Legal Issues
- Whether Mr James was "not available" to give evidence within the meaning of clause 4 of the Dictionary to the Evidence Act, specifically whether the Crown had taken all reasonable steps to secure his attendance
- Whether the absence of a notice under s 67 of the Evidence Act was a further impediment to admission
- Whether, assuming the hearsay exception in s 65(2) was satisfied, the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act
Decision
Unavailability: reasonable steps not taken
Davies J found that the Crown had not taken all reasonable steps to secure Mr James' attendance. Enquiries to locate him commenced only on 23 July 2015, three days before the trial was due to begin, and no contact was made with Mr James himself until 12 August 2015, the day before the application. No explanation was offered for the delay. Mr James had been in Australia in the weeks leading up to trial, and an earlier subpoena might have been served on him while he remained within reach. The court distinguished the outcome in Regina v Kazzi; Williams; Murchie [2003] NSWCCA 241, where late-commencing enquiries were nonetheless found sufficient, because in that case police had at least begun efforts before the trial commenced and had no earlier opportunity. Here, the tardiness was unexplained and potentially decisive.
Failure to give notice under s 67
The accused also pointed to the Crown's failure to give notice of its intention to rely on hearsay evidence, as required by s 67 of the Evidence Act. They submitted this prejudiced them because they might have taken their own steps to locate Mr James or secure his attendance had they known the Crown intended to rely on the transcript. Davies J noted this as a further impediment to admission, though his primary findings rested on the unavailability question and the s 137 analysis.
Probative value versus unfair prejudice under s 137
Davies J went on to consider s 137, proceeding on the assumption that the hearsay exception could otherwise be satisfied. He accepted the evidence had some probative value, particularly as a potential prior inconsistent statement. However, he concluded the danger of unfair prejudice outweighed that probative value. The evidence would reach the jury bearing the apparent imprimatur of the Crime Commission examination process, where Mr James was compelled to answer under oath and at risk of prosecution for false evidence. Jurors were likely to treat that context as a marker of reliability and give the evidence more weight than it deserved, particularly as it was entirely untested by cross-examination. The problem was compounded by the fact that the jury had already received a large volume of other unchallenged evidence, which the directions would tell them they could treat as reliable. Carving out the Crime Commission transcript from that approach would be a difficult task even for judges, let alone a jury. Davies J rejected the tender on this additional ground.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under clause 4 of the Dictionary to the Evidence Act, a witness is only "not available" if all reasonable steps have been taken to secure attendance. Commencing enquiries three days before trial, with no explanation for earlier inaction, did not meet that threshold, even where the witness ultimately proved unwilling to return from overseas.
- A prior opportunity to subpoena a witness while still in Australia is a material consideration. The Crown's failure to act while Mr James remained in Australia weakened its case that unavailability was beyond its control.
- Failure to give the notice required by s 67 of the Evidence Act is a further obstacle to admissibility of hearsay evidence and may prejudice accused persons who could otherwise have taken independent steps to locate the witness.
- Under s 137 of the Evidence Act, a court may reject evidence whose probative value is outweighed by the danger of unfair prejudice. Evidence from a compelled Crime Commission examination carries a contextual appearance of reliability that a jury may be unable to properly discount when it has not been tested by cross-examination.
- Where a jury is already receiving a large volume of unchallenged evidence that they are directed to treat as reliable, directing them to apply lesser weight to one specific untested piece of evidence creates a real risk of misuse that can support rejection under s 137.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65, 67, 137, 165; Dictionary, clause 4
- Crime Commission Act 2012 (NSW)
Cases
- Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
- Quintano v B W Rose Pty Ltd [2008] NSWSC 1012; (2008) 186 A Crim R 448
- R v BD (1997) 94 A Crim R 131
- R v Papakosmos [1999] HCA 37; (1999) 196 CLR 297
- R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101
- Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241; (2003) 140 A Crim R 545
- Regina v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228