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Supreme Court 14 December 2018

R v Khazma

[2018] NSWSC 2055

Homicide
CRIMINAL LAW EVIDENCE ADMISSIONS CRIMINAL PROCEDURE ACT 1986 (NSW) S 281 UNRECORDED STATEMENTS MADE TO POLICE EVIDENCE

Citation: R v Khazma [2018] NSWSC 2055
Court: Supreme Court of New South Wales
Date: 14 December 2018
Judge: Fullerton J

Background

The accused stood charged with the murder of a two-year-old girl (referred to as DB) who died on 20 December 2016 from blunt force head and spinal cord injuries. Post-mortem examination also revealed extensive bruising, bite marks consistent with adult dentition, thermal injuries attributed to a cigarette lighter, and penetrative anal injuries. The Crown alleged the accused, who had been living with the child and her mother for approximately two weeks before the death, inflicted all of these injuries.

The accused denied responsibility and foreshadowed a defence that the child's mother (Ms AS) had inflicted the fatal and non-fatal injuries, and had fabricated her police account to conceal her own guilt. Ms AS had pleaded guilty to manslaughter on the basis of her failure to protect or obtain medical assistance for her daughter, and was sentenced and released on parole prior to the accused's trial.

This judgment addressed a series of pre-trial (voir dire) admissibility disputes that arose before the trial commenced, covering tendency evidence, the admissibility of unrecorded statements made by the accused to police, and whether Ms AS's recorded police interview could be tendered as her evidence-in-chief.

  • Whether tendency evidence of Ms AS's alleged prior physical abuse of her children, to be adduced by the accused, had significant probative value under s 97 of the Evidence Act 1995 (NSW) so as to rationally affect proof of the identity of the person who inflicted the child's injuries.
  • Whether unrecorded statements made by the accused to police were admissible under s 281 of the Criminal Procedure Act 1986 (NSW), including whether those statements were made in the course of "official questioning" and whether any reasonable excuse existed for the absence of a recording.
  • Whether Ms AS's recorded police interview of 19 December 2016 could be admitted as her evidence-in-chief, including under s 66 of the Evidence Act 1995 (NSW) and ss 289 or 306 of the Criminal Procedure Act 1986 (NSW), given her status as an available witness.

Decision

Tendency Evidence

The court considered whether evidence from several proposed witnesses about Ms AS's alleged physical abuse of DB and her brother TW on prior occasions had "significant probative value" for the purposes of s 97 of the Evidence Act. Significance, in this context, requires that the evidence have the capacity to rationally affect proof of a fact in issue to a significant degree, here the identity of who inflicted the child's injuries. The court examined the proposed witness statements in detail, including accounts of Ms AS slapping, hitting, and physically abusing TW on multiple occasions, as well as observations of injuries on DB attributed to Ms AS.

The court's analysis distinguished between proposed tendency evidence that met the threshold of significant probative value and evidence that did not reach that standard. Witnesses whose accounts were more direct and detailed in describing deliberate physical harm to the children were more likely to satisfy the test. The court's ruling on the tendency notices turned on the nature, frequency, and specificity of the alleged prior conduct described by each proposed witness.

Unrecorded Statements to Police

Under s 281 of the Criminal Procedure Act, admissions made by an accused to police in the course of official questioning are generally inadmissible unless recorded or a reasonable excuse for non-recording is established. The court considered whether particular unrecorded statements attributed to the accused fell within the concept of "official questioning" and whether any exception applied. The analysis turned on the circumstances in which each statement was made and whether those circumstances engaged the recording requirements of the provision.

Ms AS's Recorded Interview as Evidence-in-Chief

The Crown sought to tender Ms AS's recorded police interview as her evidence-in-chief rather than calling her to give oral testimony in the conventional way. Three potential bases were examined: the hearsay exception in s 66 of the Evidence Act (which applies where the maker of a prior representation is available to give evidence); and the special witness provisions under ss 289 and 306 of the Criminal Procedure Act, which can allow vulnerable witnesses to give evidence by alternative means.

The court rejected all three bases. Ms AS was an available witness in the ordinary sense and s 66 does not operate to replace viva voce testimony simply because a prior statement exists. The special witness provisions were not satisfied because the court was not persuaded that Ms AS suffered a "cognitive impairment" within the statutory definition, even accepting the diagnoses of PTSD and major depressive disorder offered by two clinicians. The court found that a nexus between the mental illness and cognition, sufficient to constitute cognitive impairment, had not been established on the evidence before it. Accordingly, the Crown was required to adduce Ms AS's evidence-in-chief orally at trial.

Orders Made

• Ms AS's evidence-in-chief will need to be adduced by the Crown viva voce.

Key Takeaways

  • Under s 97 of the Evidence Act 1995 (NSW), tendency evidence adduced by an accused to implicate another person in the offence must still satisfy the "significant probative value" threshold, meaning the evidence must have the capacity to rationally affect proof of the relevant fact in issue, here identity, to a significant degree.
  • A diagnosis of PTSD or major depressive disorder does not automatically constitute "cognitive impairment" for the purposes of the special witness provisions in the Criminal Procedure Act 1986 (NSW). The Supreme Court held that a nexus between the mental illness and the witness's cognitive functioning must be established before that threshold is met.
  • Section 66 of the Evidence Act 1995 (NSW) does not provide a pathway for the Crown to tender a witness's recorded police interview as a substitute for oral evidence-in-chief where the witness is available to testify; the provision operates as a hearsay exception, not as a mechanism to dispense with viva voce testimony.
  • Where a witness is both available and not cognitively impaired, the Crown must call that witness to give evidence in the conventional oral manner, regardless of the existence of a detailed prior recorded statement.
  • Admissibility of unrecorded statements made to police turns on whether the statement was made in the course of "official questioning" within the meaning of s 281 of the Criminal Procedure Act 1986 (NSW), with the circumstances of each statement requiring individual assessment.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 66, 97
- Criminal Procedure Act 1986 (NSW), ss 281, 289, 306
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Mental Health Act 2007 (NSW)
- Interpretation Act 1987 (NSW)

Cases
- Bryant v R [2011] NSWCCA 26
- HML v The Queen (2008) 235 CLR 334
- Hughes v The Queen (2017) HCA 20
- IMM v The Queen (2016) 257 CLR 300
- McPhillamy v The Queen [2018] HCA 52
- R v Donohue [2017] NSWCCA 174
- R v Esposito (1998) 45 NSWLR 442
- The Queen v Bauer [2018] HCA 40
- R v AS [2018] NSWSC 930