Citation: R v Chambour; R v Khallouf (No 4) [2016] NSWDC 263
Court: District Court of New South Wales
Date: 30 September 2016
Judge: Neilson DCJ
Background
These were criminal proceedings against two accused, George Chambour and another defendant. During the trial, the Crown sought to rely on evidence from several witnesses who had not appeared in court, making applications under section 67 of the Evidence Act 1995 to admit their prior statements as evidence of unavailable persons.
One witness of concern, Isaac Parry, had been located at a current residential address but had not complied with a subpoena requiring his attendance on 28 September 2016. The Crown sought a ruling that Parry was "unavailable" within the meaning of the Act, which would permit his prior statement to be admitted in evidence.
A separate procedural challenge arose when counsel for the accused Chambour argued that the subpoenas issued against Parry and other witnesses were defective. The subpoenas listed each witness's address as "C/- OIC Det S Thomsen, City Central Police Station, 192 Day Street, Sydney NSW 2000" rather than the witness's residential or personal address.
Legal Issues
- Whether the Crown had taken "all reasonable steps" to compel Isaac Parry to give evidence, so as to establish he was "unavailable" under the dictionary definition in the Evidence Act 1995
- Whether a subpoena is defective when the addressee's address is listed as "care of" a police officer rather than as the witness's personal residential or business address
Decision
On the question of Parry's unavailability, Neilson DCJ found that while Parry had been located, the Crown had not taken all reasonable steps to compel his attendance. The relevant provision was paragraph (g) of the dictionary definition of "unavailability" in the Evidence Act, which requires that all reasonable steps have been taken to compel the person to give evidence, but without success. Because the Crown had not sought a warrant for Parry's arrest before making the section 67 application, his Honour was not satisfied that threshold had been met, and the application was refused.
On the defective subpoena issue, his Honour rejected the submission that listing an address as "care of" the officer in charge rendered the subpoena invalid. The court reasoned that the purpose of an address on a subpoena is to identify the addressee and to direct the process server to where the person might be found, not to specify a fixed place of personal service. A subpoena can be served at any time and any place, and there is no rule requiring a residential or business address to be stated.
His Honour also noted broader policy considerations. Court documents are public records, and disclosing a witness's home address, particularly in criminal proceedings, can expose that person to risk or harm. The "care of" formulation was treated as a practical and appropriate means of identifying the addressee while protecting their privacy. The subpoenas were held to be valid.
Following the refusal of the section 67 application, the Crown applied under section 194(1)(b) of the Evidence Act 1995, and the court issued a warrant for Parry's arrest, directed to his confirmed residential address, not to be executed before 6am on Tuesday 4 October 2016.
Orders Made
- The Crown's application under section 67 of the Evidence Act 1995 in respect of Isaac Parry was refused
- A warrant for the arrest of Isaac Parry was issued pursuant to section 194(1)(b) of the Evidence Act 1995, directed to his residential address as shown in the exhibits, not to be executed before 6am on 4 October 2016
- The matter was adjourned part-heard to 4 October 2016
Key Takeaways
- The District Court held that a subpoena addressed to a witness "care of" a police officer satisfies the requirement to provide an address, provided the addressee is otherwise sufficiently identified. No rule requires that a residential or personal address be stated.
- The purpose of an address on a subpoena is twofold: to identify the person to be served, and to guide the process server. It does not fix a location at which service must occur.
- Privacy considerations, including the risk of disclosing a witness's home address in criminal proceedings, support the use of "care of" addressing in appropriate circumstances.
- Under the dictionary definition of "unavailability" in the Evidence Act 1995, paragraph (g) requires a party to have taken all reasonable steps to compel a located witness to attend, not merely to find them. Failure to seek a warrant before applying under section 67 will not satisfy this threshold.
- Where a section 67 application is refused on the basis that compulsion steps remain available, the court retains the power to issue an arrest warrant under section 194(1)(b) at the same time, preserving the Crown's ability to secure live attendance.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 67, 194(1)(b); Dictionary, Part 2 (definition of "Unavailability of persons", paras (f) and (g))
Court Forms:
- Prescribed Form 74AC (Supreme Court subpoena form)
Cases cited: None recorded in the judgment.