Citation: R v Krivosic [2021] NSWSC 444
Court: Supreme Court of NSW
Date: 3 May 2021
Judge(s): Harrison J
Background
The accused faces a murder charge arising from the death of George Nassif, who was killed by a gunshot wound on 22 July 2018 at an apartment in Warwick Farm. The Crown alleges the accused shot the deceased and fled the scene.
A key piece of Crown evidence is a statement made by a witness, Adam Robertson, on 30 August 2018. Despite all efforts to secure his attendance, Mr Robertson was unavailable to give evidence at trial.
The Crown applied for an advance ruling under s 192A of the Evidence Act 1995 (NSW) on whether portions of Mr Robertson's statement could be admitted as hearsay evidence through s 65(2) of the Act, which allows the use of previous representations made by an unavailable witness in certain circumstances.
Legal Issues
- Whether Mr Robertson's out-of-court statement satisfied the requirements of s 65(2)(b) or (c) of the Evidence Act 1995 (NSW), such that it could be admitted despite his unavailability as a witness
- Specifically, whether the statement was made in circumstances making it highly unlikely to be a fabrication, or highly probable that it is reliable
Decision
Admissibility under s 65(2):
Harrison J found that the statement satisfied both limbs of s 65(2) that the Crown relied upon (at [7]). The Crown submitted that the statement was made shortly after the events it described and in circumstances making fabrication highly unlikely, and separately that it was made in circumstances making it highly probable to be reliable (at [6]).
The court reasoned that it would be very difficult to conceive of a situation in which Mr Robertson would have provided such a statement to police if it had not been prompted by the very incidents it described (at [7]). The statement was given when police contacted Mr Robertson as the registered subscriber of a phone he mentioned in that statement, a context the court considered highly inconsistent with fabrication (at [7]).
Applying common sense to those circumstances, Harrison J concluded the statement was highly probable to be reliable and highly unlikely to contain fabrication (at [7]). The portions of the statement the Crown sought to tender were therefore admissible (at [8]).
Orders Made
- The portions of Mr Robertson's statement that the Crown seeks to tender are admissible.
Key Takeaways
- Under s 65(2) of the Evidence Act 1995 (NSW), a previous representation by an unavailable witness may be admitted where circumstances make it either highly unlikely to be fabricated or highly probable to be reliable, and both limbs can be satisfied simultaneously.
- The Supreme Court applied a common-sense analysis to the surrounding circumstances of the statement's creation, rather than examining its content in isolation, to assess reliability and the absence of fabrication (at [7]).
- Where a witness made a statement to police in direct response to an investigative contact specifically connected to the subject matter of that statement, that context weighs significantly against any finding of fabrication (at [7]).
- Advance rulings under s 192A of the Evidence Act 1995 (NSW) provide a mechanism for the Crown to resolve admissibility questions before trial, and the court here exercised that power to rule on hearsay evidence from an unavailable witness ahead of the substantive proceedings.
- Unavailability of a witness, agreed between the parties, is a threshold requirement under s 65(1) before the hearsay exceptions in s 65(2) can be engaged (at [1]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65, 192A
Cases
- Not stated