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Supreme Court 4 April 2022

R v Omar

[2022] NSWSC 371

Homicide
EVIDENCE HEARSAY EXCEPTIONS CRIMINAL PROCEEDINGS WHETHER THE WITNESS WAS UNAVAILABLE

Citation: R v Omar [2022] NSWSC 371
Court: Supreme Court of NSW
Date: 4 April 2022
Judge: Davies J

Background

The accused stood trial for the murder of a man shot outside a residential address in Riverwood in April 2012. A friend and associate of the accused, referred to here as the witness, was alleged to have been in the company of the accused shortly before the killing and in telephone contact with him prior to the shooting.

The witness was served with a subpoena to appear at a Basha inquiry (a pre-trial hearing to assess whether evidence is admissible) and subsequently at the trial itself. On both occasions he was sworn in, gave his name, and then refused to answer any further questions. He stated that his refusal was not based on any fear of self-incrimination.

The Crown applied to tender portions of the witness's evidence given before the NSW Crime Commission in 2018. The accused opposed the tender on several grounds, including unavailability, the proper interpretation of section 65 of the Evidence Act 1995 (NSW), and whether the evidence would be unfairly prejudicial under section 137.

Legal Issues

  • Whether the witness was "unavailable" to give evidence within the meaning of clause 4 of the Dictionary to the Evidence Act 1995 (NSW)
  • Whether leave should be granted to the Crown under section 67(4) despite no notice having been given of the intention to tender hearsay evidence
  • Whether section 65(3) of the Evidence Act operated to exclude section 65(2), such that the Crime Commission transcripts could not be admitted on any basis
  • Whether each of the seven representations from the Crime Commission transcripts was against the witness's interests under section 65(2)(d)(i)
  • Whether each representation was made in circumstances likely to make it reliable under section 65(2)(d)(ii)
  • Whether the evidence should be excluded under section 137 as unfairly prejudicial to the accused

Decision

Issue 1: Unavailability

Davies J confirmed that a person who attends court but refuses to give evidence is not available to give evidence within the meaning of clause 4(1) of the Dictionary to the Evidence Act, applying the High Court's decision in Sio v The Queen and the Court of Criminal Appeal's decision in R v Suteski (at [12]). The witness's refusals at both the Basha inquiry and at trial therefore rendered him unavailable (at [4]-[5]).

Issue 2: Notice under section 67

The Crown had not given the notice ordinarily required by section 67 before tendering hearsay evidence under section 65. The court found that notice had not been given because it was not known until the witness was called at trial that he would refuse to testify (at [15]). The accused did not raise any opposition solely on the basis of the missing notice during the hearing, and the court was satisfied, having regard to section 192(2) of the Act, that no prejudice resulted from the absence of notice. Leave was granted under section 67(4) (at [18]).

Issue 3: The section 65(3) argument

The accused submitted that section 65(3), which deals with prior evidence given in an "Australian or overseas proceeding", was the only applicable provision and that, because the accused had no opportunity to cross-examine the witness before the Crime Commission, the hearsay rule applied to exclude the evidence. Davies J rejected this argument on three grounds. First, authority established that section 65(3) is not the exclusive pathway for admissibility. Second, section 65(3) is engaged only where cross-examination did occur or a reasonable opportunity to do so existed; its non-engagement does not mean the hearsay rule automatically applies. Third, the same submission had been rejected in R v Suteski (at [24]-[25]).

Issue 4: Against interests and reliability of the seven representations

Davies J assessed each of the seven representations individually. The first was admitted as contextual material explaining the relationship between the witness and the accused (at [31]-[32]). Representations two through seven each related to the witness's admissions about his presence with the accused before the shooting, and his knowledge of the accused's attempts to obtain a gun secreted near the witness's home. The court found these representations were against the witness's interests because they tended to show he may have committed an offence as an accessory before the fact and that he had lied in earlier evidence (at [34]-[35]). The court was satisfied each was made in circumstances likely to make it reliable: the witness gave evidence under oath with a formal warning that false evidence was an offence, and his admissions came after an adjournment to confer with his lawyer (at [43]-[45]). The argument that the witness should be treated as an accomplice whose evidence was inherently unreliable was rejected as going to the jury's overall assessment, not to the reliability of the particular representations in the circumstances in which they were made (at [46]-[47]).

Issue 5: Exclusion under section 137

Davies J declined to exclude the evidence under section 137, which requires exclusion where the danger of unfair prejudice substantially outweighs probative value. The evidence had significant probative value: it placed the accused at the scene hours before the killing and showed he had sought a gun from the witness shortly before the deceased was shot (at [65]). The inability to cross-examine the witness was acknowledged as a source of some prejudice, but the court observed that the safeguards built into section 65(2) itself partly address the absence of cross-examination (at [72]). The submission that jurors would misuse the evidence as the only evidence of someone asking for a gun was rejected, partly because the court took judicial notice of the prevalence of shootings in Sydney (at [73]-[74]). The court found that any danger of unfair prejudice did not outweigh the significant probative value of the evidence (at [78]).

Orders Made

  • The hearsay rule does not apply to the evidence of the seven representations identified by the court.

Key Takeaways

  • A witness who attends court, is sworn in, but then refuses to answer questions is "unavailable" within the meaning of clause 4(1) of the Dictionary to the Evidence Act 1995 (NSW), consistent with Sio v The Queen and R v Suteski (at [12]).
  • Section 65(3) of the Evidence Act does not operate as the exclusive gateway for admitting prior evidence given in Australian proceedings. Where the accused had no opportunity to cross-examine the maker of a representation before a body such as the NSW Crime Commission, section 65(2) remains available as a separate basis for admission (at [24]-[25]).
  • Under section 65(2)(d), the reliability inquiry is directed at the circumstances in which the particular representation was made, not the overall credibility of the maker. Evidence given under oath before an investigative body, with a formal warning about false evidence and an opportunity to obtain legal advice before answering, can satisfy the reliability requirement (at [43]-[45], [47]).
  • Statements that tend to show a witness committed an offence as an accessory before the fact, or that expose the witness's prior lies to an investigative body, satisfy the "against interests" requirement in section 65(7), even if the maker was simultaneously seeking to minimise personal culpability (at [34]-[35], [39]-[40]).
  • In applying section 137, the inability to cross-examine a witness is a relevant consideration but not automatically determinative. The safeguards within section 65(2) itself address some of the prejudice flowing from the absence of cross-examination, and a high degree of probative value can outweigh remaining prejudicial effect (at [72], [78]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 61, 65, 67, 137, 165, Sched 2

Cases
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v El Masri [2010] NSWSC 1277
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286
- R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
- Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316