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District Court 8 May 2017

R v Li

[2017] NSWDC 144

Sexual offences
CRIMINAL

Citation: R v Li [2017] NSWDC 144
Court: District Court of New South Wales
Date: 8 May 2017
Judge: Judge S Norrish QC

Background

The accused faced three charges of a sexual nature arising from events alleged to have occurred on or about 31 March 2014. The Crown case was that the complainant, who had no memory of the relevant events, had been subjected to non-consensual sexual intercourse while affected by prescribed drugs.

Two potential witnesses, Ms Ye Zhang and a man referred to throughout the judgment as "Kevin," had each provided statements to police but were in China at the time of trial and declined to return to Australia to give evidence. The Crown applied under section 65 of the Evidence Act 1995 to have their out-of-court representations admitted as hearsay evidence on the basis that both witnesses were "unavailable."

The accused had been in custody since his arrest in April 2014 when he attempted to depart Australia. The committal did not occur until July 2016, more than two years after the initial charges, and the trial was listed for May 2017.

Legal Issues

  • Whether Ms Zhang was "unavailable" as a witness within the meaning of clause 4 of Part 2 of the Dictionary to the Evidence Act 1995.
  • Whether Kevin was "unavailable" as a witness under the same provision.
  • Whether Kevin's representations in his police statement of 8 May 2014 were made "shortly after the asserted fact occurred" for the purposes of section 65(2)(b).
  • Whether Kevin's representations were made in circumstances making it highly probable they were reliable, for the purposes of section 65(2)(c).
  • Whether any representations from Ms Zhang's statements satisfied the admissibility requirements under section 65(2)(b) or (c).

Decision

Issue 1: Unavailability of Ms Zhang

The court was not satisfied that Ms Zhang was relevantly unavailable under clause 4(1)(f) of Part 2 of the Dictionary because all reasonable steps had not been taken to locate her or secure her attendance (at [9], [25]). The prosecution's efforts were confined almost entirely to sending emails to an address Ms Zhang had not responded to since August 2015, without making any independent inquiries of the complainant or others known to be in contact with her (at [17]-[18]). The court characterised these efforts as superficial and half-hearted, drawing on the language of Nettle J (as he then was) in the Victorian decision of R v ZL (at [27]). The failure to make broader inquiries was compounded by the fact that the available evidence about attempts to locate Ms Zhang was produced to the court very late, and only after the judge's own prompting (at [27]).

Issue 2: Unavailability of Kevin

Kevin's situation was distinguished from Ms Zhang's. He had promptly responded to a letter from the Crown's solicitor in April 2017, demonstrating he was aware of the proceedings, but stated through his family that he would not attend. The court was satisfied under clause 4(1)(g) that all reasonable steps had been taken to compel his attendance without success, noting there was little any New South Wales authority could do to compel an overseas witness (at [33]).

Issue 3: Whether Kevin's statement was made "shortly after" the asserted facts

The court held that Kevin's statement, made 36 to 37 days after the relevant events, was not made "shortly after the asserted fact occurred" for the purposes of section 65(2)(b) (at [35], [43]). Applying the reasoning in Harris v R [2005] NSWCCA 432 and Conway v R [2000] 98 FCR 204, the court emphasised that the phrase "shortly after" requires a sense of proximate pressure connected to the occurrence of the asserted facts. No such proximate pressure existed in relation to Kevin's statement, given the length of time that had passed, Kevin's evident alignment with the complainant, and his opportunity to discuss events with others before making his statement (at [43]).

Issue 4: Whether Kevin's representations were admissible under section 65(2)(c)

The court accepted that some of Kevin's representations had sufficient hallmarks of reliability to satisfy section 65(2)(c), being those that related to independently provable facts (at [47]). Representations that could have been influenced by discussions with the complainant or other witnesses were not regarded as highly probable to be reliable and were not admitted (at [47]).

Issue 5: Ms Zhang's statements and admissibility under section 65(2)(b) and (c)

Because the court found Ms Zhang was not relevantly unavailable, there was no strict need to rule on the admissibility of her representations. However, the court observed that neither of her statements, including the statement of 5 April 2014, was made shortly after the asserted facts in the sense required by Harris (at [49]). Any claimed admission from the accused contained in Ms Zhang's representations would not satisfy the requirements of section 65(2)(b) or (c), given her relationship with the complainant and her intimate knowledge of the allegations (at [51]-[52]).

Orders Made

  • Ms Zhang: found not relevantly unavailable as a witness because reasonable inquiries had not been made by the prosecuting authority; application to admit her representations refused on that basis.
  • Kevin: found to be unavailable as a witness; only limited representations from his police statement admitted as admissible under section 65(2)(c).

Key Takeaways

  • Satisfying the "unavailability" requirement under clause 4 of Part 2 of the Dictionary to the Evidence Act 1995 demands more than sending repeated emails to a contact address the witness has not responded to for an extended period. The District Court found that a failure to pursue independent inquiries through other known contacts rendered the prosecution's efforts insufficient (at [17]-[25]).

  • The phrase "shortly after the asserted fact occurred" in section 65(2)(b) carries a qualitative meaning focused on proximate pressure rather than a fixed time limit. A statement made 36 to 37 days after the relevant events, by a witness who had ample opportunity to discuss matters with aligned parties, did not meet this threshold (at [35]-[43]).

  • Under section 65(2)(c), the court may look to the factual setting surrounding a representation, including events before and after it was made and other statements by the same person. Only those representations tied to independently proved facts were regarded as carrying sufficient hallmarks of reliability in this case (at [46]-[47]).

  • Where a potential witness overseas has made clear they will not return to give evidence, and nothing further can practically be done to compel attendance, a court may find unavailability established even if the witness's stated reasons for refusing are not credible (at [33]).

  • Protracted pre-trial delay attracting criticism from the court does not alter the legal tests for admissibility, but the chronology of investigative steps taken (or not taken) to contact overseas witnesses is directly relevant to whether the unavailability threshold has been met (at [11]-[25]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995

Cases
- Conway v R [2000] 98 FCR 204
- Harris v R [2005] NSWCCA 432
- R v Ambrosoli [2002] 55 NSWLR 603
- R v Kazzi [2013] NSWCCA 241
- R v ZL (2010) 208 A Crim R 325
- Sio v R [2016] HCA 32
- Youkhana v R [2013] NSWCCA 85