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District Court 9 April 2025

R v Alameddine (No 2)

[2025] NSWDC 425

Theft & property
CRIME EVIDENCE

Citation: R v Alameddine (No 2) [2025] NSWDC 425
Court: District Court of New South Wales
Date: 09 April 2025
Judge(s): Neilson DCJ

Background

The accused stood trial on an indictment including a count relating to a dwelling house in Redfern occupied by a man named Igoe at the time of the alleged offence. The Crown's case relied significantly on Igoe as a witness to events that took place at the premises.

Igoe had been served with a subpoena and given long notice of the trial date. Despite repeated attempts by police to execute a bench warrant, multiple phone calls, and two personal undertakings from Igoe to attend, he did not appear in court and could not be located.

The Crown applied to adduce Igoe's written statement dated 6 July 2023 and recordings from police body-worn cameras capturing Igoe's account shortly after the events. The accused opposed the application, arguing that the evidence should be excluded under the Evidence Act 1995.

Legal Issues

  • Whether Igoe was "unavailable" to give evidence within the meaning of the Dictionary to the Evidence Act 1995 (Pt 2, cl 4)
  • Whether the Crown's body-worn camera recordings and Igoe's written statement were admissible as hearsay evidence of an unavailable witness
  • Whether the evidence should be excluded under section 137 of the Evidence Act 1995 on the basis that the danger of unfair prejudice to the accused outweighed its probative value
  • Whether the general exclusionary discretion under section 135 of the Evidence Act 1995 applied

Decision

Issue 1: Unavailability of Igoe

Neilson DCJ found that Igoe had been served with a subpoena and had adequate notice of the trial (at [6]). All reasonable steps, including execution of a bench warrant and multiple direct phone calls, had been taken to secure his attendance, and all had failed (at [6]). His Honour was satisfied that Igoe was unavailable within the meaning of the Dictionary to the Evidence Act 1995, Pt 2, cl 4(1)(f) and (g) (at [6]).

Issue 2: Reliability and character of the evidence

The body-worn camera recordings captured Igoe's account within minutes of the relevant events, and his written statement was made at the police station the same evening, roughly an hour after those events (at [32]). His Honour observed that two minor errors appeared in the written statement, an incorrect date reference and a spelling error, but found that minor inconsistencies between accounts generally point to authenticity rather than fabrication (at [7]-[8], [32]).

Issue 3: Exclusion under section 137

The defence submitted that the danger of unfair prejudice outweighed the probative value, relying on the inability to cross-examine Igoe and cases including R v Le, R v TAI, R v A (No 3), and R v RN. His Honour accepted that the absence of cross-examination can cause prejudice, but held that this does not automatically result in a jury misusing the evidence, particularly where the trial judge can give appropriate directions (at [24]). His Honour distinguished the circumstances from TAI and R v A (No 3), noting that the prejudice identified in those cases arose from specific and concrete difficulties not present here (at [26]-[28]).

His Honour found the evidence highly probative and almost contemporaneous with the events described (at [33]). The defence had not adequately identified the specific danger of unfair prejudice beyond a general assertion that the jury might convict, and his Honour observed that the prospect of evidence being used to convict is not itself unfair prejudice (at [35]). The court was not persuaded that the danger of unfair prejudice outweighed the probative value, and accordingly rejected the exclusion application (at [36]).

Orders Made

  • The Crown's application to adduce the body-worn camera recordings and Igoe's written statement was granted.

Key Takeaways

  • The District Court confirmed that a witness's failure to attend despite service of a subpoena, multiple police attempts to execute a bench warrant, and personal undertakings to appear can satisfy the unavailability requirements under the Dictionary to the Evidence Act 1995, Pt 2, cl 4(1)(f) and (g) (at [6]).

  • Under section 137 of the Evidence Act 1995, the inability to cross-examine an absent witness does not automatically establish that a jury will misuse the evidence; the court assessed this as one factor in a broader weighing exercise rather than a decisive consideration (at [24], [31]).

  • Almost contemporaneous statements, including body-worn camera recordings made within minutes of relevant events, carry significant probative weight, and minor inconsistencies between accounts made at different times tend to support rather than undermine authenticity (at [32]-[33]).

  • A defence submission that evidence may lead the jury to convict does not, without more, establish the kind of "unfair prejudice" required to enliven the exclusionary obligation in section 137; the court must identify a specific danger of misuse, not merely that the evidence is damaging (at [35]).

  • Where the defence cannot articulate a specific mechanism by which the jury might misuse the impugned evidence, the court retains scope to admit that evidence and address concerns through appropriate jury directions (at [29], [35]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 , ss 33B(2), 113(3)
- Evidence Act 1995 , ss 135, 137 Pt 2 cl 4

Cases
- R v A (No 3) [2015] NSWSC 79 at [8] – [12]
- R v Le [2002] NSWCCA 193 at [93] – [93]
- R v RN [2005] NSWCCA 413 at [11] – [12]
- R v TAI, Alatini [2016] NSWCCA 207 at [31]