Citation: R v Chambour; R v Khallouf (No 3) [2016] NSWDC 262
Court: District Court of New South Wales
Date: 29 September 2016
Judge: Neilson DCJ
Background
This ruling arose in the course of a criminal trial concerning events at the Opera Bar and Sydney Opera House car park in the early hours of 8 September 2013. The Crown sought to adduce firsthand hearsay evidence from four witnesses who had been present that night but had not attended court to give evidence. To do so, the Crown needed to satisfy the court that each witness was "unavailable" within the meaning of the Evidence Act 1995.
The Crown had attempted to serve subpoenas on all four witnesses. One witness, Christopher Pattison, became the focus of a preliminary ruling on three distinct questions: whether the subpoenas were in a valid form, whether the manner of service was adequate, and whether the Crown had done enough to establish unavailability for the purposes of a s 67 application.
Legal Issues
- Whether Supreme Court Rules Part 75, including the prescribed Form 74AC for subpoenas, applies to criminal proceedings in the District Court
- Whether placing a subpoena in a witness's postal box constitutes valid service under District Court Rules Part 53 rule 19
- Whether the Crown had taken all reasonable steps to secure a witness's attendance, so as to establish unavailability under the Dictionary to the Evidence Act 1995
- Whether a warrant for the witness's arrest should issue under s 194(1)(b) of the Evidence Act 1995
Decision
Form of the subpoena. An argument was raised that the subpoena was defective because it did not include the witness's address and did not use Supreme Court Form 74AC. Neilson DCJ rejected this argument. His Honour traced the legislative history of the Third Schedule to the Supreme Court Act 1970 and Part 75 of the Supreme Court Rules, concluding that those rules were enacted to govern criminal proceedings in the Supreme Court only. Critically, s 17(2) of the Supreme Court Act authorises rule-making for the Supreme Court's own practice and procedure; it does not empower the Supreme Court Rules Committee to regulate procedure in the District Court. The form used was therefore not invalidated by any failure to comply with Supreme Court forms.
Mode of service. The subpoena had been placed in the witness's postal box by a police officer rather than delivered by post in the conventional sense. Neilson DCJ held this was valid service. Reasoning that the rules are servants and not masters, his Honour observed that a police officer who can positively attest to placing a document in a letterbox provides stronger proof of delivery than simple proof of posting. Placing the subpoena in the postal box was treated as equivalent to, and at least as good as, service by post under Part 53 rule 20(2)(e) of the District Court Rules.
Unavailability under the Evidence Act. Despite finding valid service, his Honour refused the s 67 application in respect of Pattison. The relevant question was whether all reasonable steps had been taken to compel his attendance without success. Pattison was known to be in Australia, living and working in Sydney. The Crown had left a subpoena in his postal box and he had not complied, but the Crown had not applied for a warrant for his arrest and no attempt had been made to enforce the subpoena. On those facts, the court was not satisfied that Pattison was unavailable within paragraph (g) of the Dictionary to the Evidence Act.
Arrest warrant. After further submissions, Neilson DCJ granted the Crown's alternative application and issued a warrant for Pattison's arrest under s 194(1)(b) of the Evidence Act 1995, requiring his attendance to give evidence.
Orders Made
- A warrant issued for the arrest of Christopher James Pattison requiring his attendance before the court to give evidence, pursuant to s 194(1)(b) of the Evidence Act 1995
- The warrant was not to be served prior to 6:00 am on Tuesday, 4 October 2016
Key Takeaways
- The District Court held that Part 75 of the Supreme Court Rules, including the prescribed subpoena Form 74AC, does not apply to criminal proceedings in the District Court. The rule-making power in s 17(2) of the Supreme Court Act 1970 extends only to the Supreme Court's own practice and procedure.
- Placing a subpoena in a witness's postal box, by a police officer who can positively attest to having done so, constitutes valid service equivalent to service by post under the District Court Rules.
- Under paragraph (g) of the Dictionary to the Evidence Act 1995, establishing that a witness is "unavailable" requires proof that all reasonable steps were taken to compel attendance. Merely serving a subpoena that the witness ignores is insufficient if no attempt has been made to enforce it, such as by seeking an arrest warrant.
- A finding that a witness is not "unavailable" for the purposes of s 67 does not preclude a separate application for an arrest warrant under s 194(1)(b) of the Evidence Act 1995.
- In dismissing the unavailability application, the court signalled that the Crown bears a meaningful burden to exhaust enforcement mechanisms before firsthand hearsay can be admitted on the basis that a witness cannot be located or compelled to attend.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 67, 194(1)(b), Dictionary (definition of "Unavailability of persons")
- Supreme Court Act 1970 (NSW), s 17, Third Schedule
- Supreme Court Rules 1970 (NSW), Part 75, Form 74AC
- District Court Act 1973 (NSW), s 171D
- District Court Rules, Part 53, rr 19, 20
- Civil Procedure Act 2005 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)
- Justices Act 1902 (NSW)
- Supreme Court (Appeals) Amendment Act 1987 (NSW)
Cases: No cases were cited in the portions of the judgment available.