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District Court 23 October 2024

R v Askarou

[2024] NSWDC 552

Firearms & weapons
CRIME PRE TRIAL UNAVAILABILITY OF PERSONS “ALL REASONABLE STEPS” FACTORS TO BE TAKEN INTO ACCOUNT

Citation: R v Askarou [2024] NSWDC 552
Court: District Court of New South Wales
Date: 23 October 2024
Judge(s): D Barrow SC DCJ

Background

The accused faces retrial in the District Court at Parramatta on a charge of shooting with intent to murder, with an alternative charge of discharging a firearm with intent to cause grievous bodily harm. The charges arise from a July 2016 shooting in which the victim was rendered a paraplegic. The accused was convicted at his first trial in 2019 but the Court of Criminal Appeal quashed that conviction in October 2023 and ordered a retrial.

The prosecution's case depends heavily on the evidence of WL, the witness who identified the accused to police in January 2018 and gave evidence at the first trial. WL left Australia in August 2022 and has not returned. His whereabouts are known to the ODPP and NSW Police but not to the accused.

After WL emailed the Officer in Charge in September 2024 saying he was no longer prepared to give evidence, the Crown filed a Notice of Motion seeking to admit his earlier trial evidence under section 65(3) of the Evidence Act 1995 on the basis that WL was "unavailable." The accused opposed the motion.

Legal Issues

  • Whether WL is "unavailable" for the purposes of section 65(3) of the Evidence Act 1995, specifically whether the Crown has taken "all reasonable steps" to secure his attendance, as required by clause 4(1)(f) of the Dictionary to that Act.
  • Whether, if WL were found unavailable, his prior evidence should be excluded under section 137 of the Evidence Act 1995 (this issue was ultimately not reached).

Decision

Issue 1: Whether all reasonable steps were taken to secure WL's attendance

The onus rested on the Crown to establish that all reasonable steps had been taken to secure WL's attendance. The court applied the framework from Huang v Wei [2022] NSWSC 222, which identifies relevant considerations including the nature of the proceeding and the significance of the witness's evidence. The court also drew on ZL v The Queen [2010] VSCA 345 and Tasmania v Dolega [2016] TASSC 65, both of which emphasise that delays in engaging with a reluctant witness can themselves defeat a finding of unavailability (at [75]-[78]).

The court found the efforts made fell well short of what was required. There was no contact between the OIC and WL from 15 February 2024 until 30 July 2024, and the first verbal contact between any prosecution representative and WL occurred on 13 August 2024, a day after the trial was due to commence (at [83]-[87]). WL repeatedly requested access to his statements during this period and received no substantive response (at [85]).

When WL subsequently raised concerns about a broken leg, employment impacts, security in Australia, and his mental health, no attempt was made to address those concerns or to revisit the possibility of him giving evidence from his country of residence (at [88], [92]). When WL communicated on 13 September 2024 that he would not give evidence at all, the OIC's only response was "OK thanks for letting me know" (at [90]).

The court was also critical of the section 67 Notice issued on 19 February 2024. That Notice incorrectly stated that all reasonable steps had been taken to secure WL's attendance when, at that time, the ODPP and police understood WL was likely to cooperate. The communications underlying this were not disclosed to the accused and only came to light through a subpoena (at [63]-[65]). The court was not persuaded, on balance, that WL is unavailable, and dismissed the Crown's Notice of Motion (at [96]).

Issue 2: Section 137 exclusion

The court had indicated during the hearing that it would also address the accused's submission regarding section 137 exclusion. Having determined that WL is not unavailable, the hearsay exception in section 65(3) is not engaged. Section 137 only arises if the hearsay rule does not apply to the evidence, so the court declined to consider it further (at [97]).

Orders Made

  • The Crown's Notice of Motion is dismissed.

Key Takeaways

  • Under clause 4(1)(f) of the Dictionary to the Evidence Act 1995, the onus falls on the party seeking a finding of unavailability to prove that all reasonable steps to secure the witness's attendance were taken without success. The standard is not satisfied by perfunctory or delayed engagement with a reluctant overseas witness (at [70], [91]).

  • A significant gap in communication with a crucial prosecution witness, in circumstances where that witness had a known history of reluctance, weighed heavily against the Crown's unavailability finding. The District Court drew on Victorian and Tasmanian authority to hold that delays in engagement can be decisive (at [77]-[78]).

  • Issuing a section 67 notice as an "insurance policy" while simultaneously expecting a witness to attend voluntarily was found to be problematic, particularly where the representations within the notice, that all reasonable steps had been taken, were inaccurate at the time of issue (at [64]).

  • The court identified concrete steps that were not taken: no ODPP conference with WL, no further exploration of giving evidence from his country of residence after he broke his leg, no substantive response to his repeated requests for his statements, and no engagement with his concerns after he declined to give evidence on 13 September 2024 (at [91]-[95]).

  • Failure to produce oral evidence from the OIC or the previously careless solicitor on the Notice of Motion also contributed to the inadequacy of the material before the court in support of the unavailability finding (at [92]).

Legislation and Cases Referenced

Legislation
- s65(3) Evidence Act 1995
- s5B Evidence (Audio and Audio Visual Links) Act 1998
- Crimes Act 1900

Cases
- Askarou v The King [2023] NSWCCA 246
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286
- R v Geeves (No 4) [2024] NSWSC 938
- R v Hawi (No 2) [2011] NSWSC 1648; 216 A Crim R 64
- Huang v Wei [2022] NSWSC 222
- AJW and 2 ors v State of New South Wales [2003] NSWSC 803
- Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976
- Quintano v B W Rose Pty Ltd [2008] NSWSC 1012
- ZL v The Queen (2010) 208 A Crim R 325; [2010] VSCA 345
- Tasmania v Dolega (2016) 26 Tas R 312; [2016] TASSC 65
- Inc v John Deere Ltd (No 2) (2000) 181 ALR 108; [2000] FCA 1903
- Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435
- R v Sarbandi (2012) 229 A Crim R 39; [2012] ACTSC 180