Citation: R v WM [2019] NSWDC 860
Court: District Court of New South Wales
Date: 22 November 2019
Judge(s): P Taylor SC DCJ
Background
The accused was charged with two counts of sexual intercourse without consent alleged to have occurred on 28 May 2015. Following a finding of unfitness to be tried under s 14 of the Mental Health (Forensic Provisions) Act 1990, the matter proceeded as a special hearing under s 19 of that Act, conducted by a judge alone without a jury.
The Crown sought to tender statements signed by two witnesses (referred to here as "Pago" and "Efu") the day after the incident, and an electronically recorded interview with a third witness ("Paisa") conducted nearly two years later. None of these three witnesses attended the special hearing to give evidence in person.
The accused objected to the tender of all three documents. The court conducted a voir dire (a preliminary hearing to determine admissibility) to resolve whether the materials could be received in evidence under s 65 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether each of the three absent witnesses was "not available to give evidence" within the meaning of s 65(1) of the Evidence Act, read with cl 4 of the Dictionary to that Act
- Whether the representations in the two witness statements were made in circumstances making fabrication unlikely, satisfying s 65(2)(b)
- Whether the representations in the recorded interview were made in circumstances making reliability highly probable, satisfying s 65(2)(c)
- Whether the probative value of any of the materials was outweighed by the danger of unfair prejudice to the accused under s 137, or substantially outweighed by the danger of misleading or confusing the tribunal of fact under s 135(b)
Decision
Unavailability of witnesses. The officer-in-charge gave detailed evidence of his attempts to locate each of the three witnesses. In the case of Efu, whose lifestyle involved no fixed address and multiple failed contact attempts across many months, the court was satisfied that all reasonable steps had been taken without success. For Pago, who had attended court on one occasion but then failed to return and became uncontactable, similar conclusions were reached. The court held that a step is only "reasonable" for the purposes of cl 4 of the Dictionary if there is a real possibility it would locate the person or secure their attendance, not merely because it could be taken without undue difficulty. On that basis, all three witnesses were taken not to be available to give evidence.
Anti-fabrication and reliability requirements. The court examined the circumstances in which each statement or interview was made. The witness statements were made the day after the incident, and the court found the surrounding circumstances made fabrication unlikely under s 65(2)(b). The recorded interview with Paisa, conducted by police, was assessed against the s 65(2)(c) standard of high probability of reliability, with the court finding that standard was met.
Unfair prejudice and discretionary exclusion. The court acknowledged that the inability to cross-examine the makers of out-of-court statements is a serious matter and has, in other cases, grounded exclusion under ss 135 and 137. However, the court distinguished the present case as a judge-alone special hearing. A judge is required to give a reasoned decision, to articulate the relevant cautions, and to assess the weight of untested hearsay with awareness of its limitations. The court found there was no unfair prejudice that could not be appropriately addressed in that process, and declined to exercise the discretion to exclude.
Result. The Crown's application under s 65 succeeded. All three documents were admitted into evidence.
Orders Made
- The recorded audio interview of the witness referred to as Paisa was admitted as Exhibit M.
- The statement of the witness referred to as Pago was admitted as Exhibit N.
- The statement of the witness referred to as Efu was admitted as Exhibit O.
Key Takeaways
- Under cl 4(f) of the Dictionary to the Evidence Act 1995, "all reasonable steps" to locate a witness does not require every conceivable step to be taken. A step is only relevantly reasonable if there is a real possibility it would succeed in locating the person or securing their attendance.
- Where a witness lives with no fixed address, has disconnected phone numbers, and cannot be located through police databases, electoral rolls, or family contacts despite sustained efforts over many months, a court may be satisfied that the unavailability threshold under s 65(1) is met.
- In a judge-alone hearing, the risk of unfair prejudice from untested hearsay is materially different from the risk in a jury trial. The District Court found that a judge's obligation to reason transparently and apply appropriate caution can cure prejudice that might otherwise ground exclusion under ss 135 or 137.
- The inability to cross-examine remains a significant consideration and is not automatically displaced in a judge-alone context, but the court held it was not determinative where the judge could assess and expose the limitations of the evidence in a reasoned judgment.
- Witness statements made the day after an incident, and a police interview conducted in structured circumstances, can each satisfy the distinct reliability thresholds in ss 65(2)(b) and 65(2)(c) respectively, provided the surrounding circumstances support those inferences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 578A
- Evidence Act 1995 (NSW), ss 65, 135, 137; cl 4 of the Dictionary
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 19
Cases
- Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- R v TAI, Alatini [2016] NSWCCA 207
- Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32