AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 14 September 2020

R v Wilson

[2020] NSWDC 548

Firearms & weapons
CRIMINAL LAW EVIDENCE EXCEPTION TO HEARSAY RULE WHETHER WITNESS WAS ‘NOT AVAILABLE’

Citation: R v Wilson [2020] NSWDC 548
Court: District Court of New South Wales
Date: 14 September 2020
Judge: Abadee DCJ

Background

The accused stood trial on charges including unlawful possession of a firearm, arising from an alleged incident on 1 August 2019. The Crown alleged that the accused attended a residential property, brandished a pistol, poured fuel from a jerry can over the front door, and threatened to set the house alight. The accused had already pleaded guilty to two charges relating to the threatened burning.

One of the two residents at the property, Clayton Futcher, gave evidence for the Crown. His brother, Corey Futcher, had also made a police statement on the night of the incident. That statement was said to provide some corroboration of Clayton's account, particularly regarding the sighting of a firearm and the fuel-pouring.

Corey Futcher did not attend court to give evidence. The Crown applied under s 65(2) of the Evidence Act 1995 (NSW) to have the relevant portions of his police statement admitted as an exception to the hearsay rule. The accused opposed the application on the basis that the Crown had not established that Corey Futcher was "not available" within the meaning of the Act.

  • Whether Corey Futcher was "not available" as a witness under cl 4(1)(f) and (g) of Part 2 of the Dictionary to the Evidence Act 1995 (NSW), meaning whether all reasonable steps had been taken to find him or compel his attendance.
  • Whether, if the unavailability threshold was met, the evidence was admissible under s 65(2) of the Evidence Act.
  • Whether, as an alternative, the court should exercise its discretion under s 137 to exclude the evidence on the basis that its probative value was outweighed by unfair prejudice to the accused.

Decision

The central question was whether the Crown had discharged its onus of proving that all reasonable steps had been taken to find Corey Futcher or secure his attendance. The officer in charge, Senior Constable Hannah, gave evidence of the steps taken. He had attended the address of the incident and spoken with Clayton Futcher, who informed him that his brother was "on the run" and had no intention of attending court. Corey Futcher was also subject to an arrest warrant for breaching bail and facing charges of larceny and driving whilst unlicensed.

Under cross-examination, Senior Constable Hannah accepted that he had made no inquiries through Centrelink, telecommunications providers, a motor vehicle registry, hospitals, emergency accommodation providers, Corey's sister, or other known associates. He was also unaware that the matter had been set down for trial in July 2020. Crucially, it emerged that Corey Futcher had been held in police custody from 18 to 27 July 2020, yet no subpoena was served during that period.

Abadee DCJ found that the Crown had not established unavailability. Applying the High Court's reasoning in Sio v The Queen, his Honour emphasised that admitting hearsay statements inculpating an accused is a serious matter because the accused cannot cross-examine the maker. Drawing on ZL v The Queen, his Honour noted that the greater the importance of a witness, the more extensive the required inquiries. The range of inquiries left untaken, combined with the missed opportunity to serve a subpoena while Corey Futcher was in custody, meant the Crown fell well short of the statutory threshold.

Because the precondition of unavailability under cl 4 of the Dictionary was not satisfied, s 65 was not enlivened at all. It was therefore unnecessary for the court to consider the notice requirement under s 67 or the s 137 discretion to exclude. The application was refused.

Orders Made

  • The Crown's application to admit portions of Corey Futcher's police statement under s 65(2) of the Evidence Act 1995 (NSW) was refused.

Key Takeaways

  • The District Court held that the Crown bears the onus of proving, on the evidence, that all reasonable steps were taken to find an absent witness or secure his or her attendance before the hearsay exception in s 65(2) of the Evidence Act 1995 (NSW) can be engaged.
  • Under cl 4(1)(f) and (g) of Part 2 of the Dictionary to the Evidence Act, "not available" requires more than a hope that the witness will attend voluntarily; active and thorough efforts to locate and compel attendance are required.
  • The greater the importance of the witness to the Crown case, the more extensive the steps a court will expect to have been taken, consistent with the Victorian Court of Appeal's reasoning in ZL v The Queen, which Abadee DCJ applied.
  • Failing to serve a subpoena on a witness while that witness was in police custody for ten days was identified as a significant and unexplained gap in the Crown's efforts.
  • Where the unavailability precondition is not satisfied, s 65 is not enlivened and there is no need to consider either the notice requirement under s 67 or the s 137 exclusionary discretion.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 65, 67, 137; Part 2, cl 4 of the Dictionary

Cases
- Sio v The Queen (2016) 259 CLR 47 (High Court of Australia)
- ZL v The Queen (2010) 208 A Crim R 325 (Victorian Court of Appeal)