R v Warwick (No.76)

1. [1]

   At the conclusion of proceedings yesterday, I reserved my decision until this morning on an application made on a voir dire by the Crown to tender the statements of Mr Paul Kohout, Mr Guillermo Guzman and Mr Jose Capparelli on the basis that each of those witnesses was, within the meaning of s 65 of the Evidence Act 1995, "not available to give evidence".

Evidence Act 1995

1. [2]

   Section 65 applies to criminal proceedings and provides that, if a person, who made a previous representation, is not available to give evidence about an asserted fact, then the “hearsay rule does not apply to the evidence of that previous representation...”

2. [3]

   Whether or not a person is unavailable to give evidence about an asserted fact is the subject of definition in Clause 4 of Part 2 of the Dictionary to the Evidence Act. Only one sub-part of that clause is here relevant. The sub-part reads:

3. [4]

   Clause (4)(2) provides that in all other cases the person is taken to be available to give evidence about the asserted fact.

Legal Principles

1. [5]

   There are not many decisions dealing with the legal principles to be applied in coming to a conclusion that a person is mentally or physically unavailable to give evidence. Clearly, these are cases which must be determined according to particular facts which will undoubtedly vary. The mere fact that a person has memory difficulties, or may not recall evidence which they may once have been able to give, is not of itself, and without more, a circumstance falling within the description "mentally" or "physically” unable to give evidence. However, if a particular mental or physical condition has caused a memory loss or amnesia, then that may lead to a different result.

2. [6]

   As well, it seems to me that if a witness would suffer significant adverse consequences, (mentally or physically) from giving evidence, then that is a fact which can be taken into account.

3. [7]

   Equally, it is not necessary to show, in my view, that there is an absolute inability to give evidence. In Alzawy v The Coptic Orthodox Church Diocese of Sydney [2016] NSWSC 1122 at 32, I ruled that it is not a relevant consideration for the court to form any view as to whether the evidence (which a witness is to give) may or may not be accurate or reliable, or whether the giving of evidence by the witness might need to be the subject of particular arrangements.

4. [8]

   In that decision, I remarked that the question was simply whether the witness was mentally or physically unable to give the evidence, being the hearsay evidence which is sought to be adduced.

5. [9]

   In respect of each of the three proposed witnesses, it is necessary now to consider the relevant evidence, and their respective inability to give evidence.

Paul Kohout

1. [10]

   The hearsay evidence which it is sought to be adduced from Mr Paul Kohout is that contained in a statement given to Detective Senior Constable Fisher on 11 November 2014 and, as well, the evidence recorded in a running sheet numbered 760/16 compiled on 14 February 1985. The photographs referred to in those documents are also the subject of the tender. These were marked as Exhibit VD42.

2. [11]

   The evidence on the voir dire, contained in Exhibits VD44 and VD45 establish that, as at January 2018, Mr Kohout was 82 years old. He described himself in these terms:

3. [12]

   Mr Kohout also referred to the fact that he was under the care of a general practitioner, Dr Steven Yakich. The Crown has tendered a report of Dr Yakich written in January 2018, in which he sets out the past medical history of Mr Kohout and records that he has been treating Mr Kohout for eight years. He also records that he has notes relating to Mr Kohout’s medical history dating back a further nine years. It would not be appropriate to recount that medical history in detail. It is clear that in the last five years or so, Mr Kohout has been treated for the consequences of cancer, heart conditions and other medical conditions which relate to his physical capacity.

4. [13]

   Dr Yakich provides this opinion:

5. [14]

   Dr Yakich asks the Court to grant his patient leave from having to appear in these proceedings. He then sets out, in short form, the past medical history of Mr Kohout. In the report, the medications which Mr Kohout was taking were listed and included five different sorts of medications taken each day.

6. [15]

   The medical evidence about Mr Kohout was not contradicted, nor was the opinion of Dr Yakich challenged; rather, the submissions on behalf of the accused concentrated on the fact that the material about Mr Kohout's condition was dated in January 2018 and could not be regarded as a contemporaneous report about Mr Kohout's present capacity.

7. [16]

   The evidence, in my view, abundantly supports the conclusion that, as at January 2018 Mr Kohout was, through physical incapacity, unable to give evidence and that it would not be reasonably practicable to overcome that inability.

8. [17]

   As I have earlier noted, Mr Kohout was 82 in January 2018. Although his date of birth is not revealed in the documents, he must now be at least 83 and perhaps 84.

9. [18]

   The nature of his conditions is not such that, applying ordinary logic and common sense, they will have improved. Mr Kohout’s conditions have been present for many years prior to January 2018. There is no reason to think that the passage of a further 18 months after a description of him being “frail, unwell and anxious” will have alleviated his conditions.

10. [19]

    The nature of Mr Kohout’s medication prescribed for his medical history as described by his doctor cannot be regarded as temporary or short-term and it is clear from the description in the report that Mr Kohout is subject to ongoing monitoring by his general practitioner.

11. [20]

    In all of those circumstances, I am satisfied that Mr Kohout is a person who is unavailable to give evidence about the facts set out in the documents I have earlier described because he is mentally and physically unable to give that evidence and it is not reasonably practicable to overcome that inability.

Guillermo Guzman

1. [21]

   It is necessary then to consider the evidence with respect to Mr Guillermo Guzman. Mr Guzman's evidence is contained in a single page statement dated 8 January 1986 which was marked as Exhibit VD46.

2. [22]

   A medical report from Dr Debbie Le, Mr Guzman’s general practitioner, dated 9 September 2019, has been tendered as part of the evidence on the voir dire. That report is not challenged and there is no other evidence relevant to the health of Mr Guzman before this Court.

3. [23]

   Dr Le, a Fellow of the Royal Australian College of General Practitioners, reports:

4. [24]

   Mr Guzman's past medical history, recorded in detail in that report, supports the statement of Dr Le about previous spinal surgery occurring in 2011, 2017 and 2018. It also records that in July 2019, Mr Guzman underwent surgery for prostate cancer.

5. [25]

   The Accused submits that difficulty with travel, sitting or standing for long periods would not be sufficient to establish that a person is mentally or physically unable to give evidence because arrangements could be made for the witness' evidence to be taken by audiovisual link (“AVL”) from a place close to where the witness lives. It follows, says the Accused, that there is no issue about the witness having to sit or stand for long periods or to travel.

6. [26]

   If the only condition of Mr Guzman was that relating to the physical consequences of his spinal surgeries, I would be inclined to the view that whilst he may be physically unable to give evidence, the Crown had not demonstrated that it was not reasonably practicable to overcome that inability because his evidence could be taken by AVL.

7. [27]

   However, Mr Guzman is noted by his general practitioner as having had recent surgery for cancer and is still in the course of rehabilitation from that surgery. In those circumstances, I am satisfied that Mr Guzman is mentally or physically unable to give the evidence which the Crown seeks to tender and that it is not reasonably practicable to overcome that difficulty.

8. [28]

   In my view, Mr Guzman is not available to give evidence and, accordingly, the Crown is entitled to tender his statement.

Jose Capparelli

1. [29]

   The final witness, the subject of this application, is Mr Jose Capparelli. The evidence of Mr Capparelli is contained in a statement dated 20 October 1985 which was marked Exhibit VD48. Mr Capparelli is apparently a resident of Queensland. The Crown relies upon a medical certificate dated 9 September 2019. It is a brief certificate from Dr Vanessa Serrano, who is also a Fellow of the Royal Australian College of General Practitioners. She writes:

2. [30]

   The Accused submits that unfitness to travel interstate is not sufficient to justify a conclusion that Mr Capparelli is not available. That is because, the Accused submits, Mr Capparelli can give evidence by AVL and that, accordingly, it is reasonably practicable to overcome the inability to travel interstate. In this instance, I agree.

3. [31]

   The present trial has featured many witnesses giving evidence by AVL. That process has worked well and there is simply no basis to conclude, by reason of unfitness to travel from interstate, that a person is thereby "not available".

4. [32]

   The additional matter in Mr Capparelli's case is that he is said to have a current diagnosis of mild cognitive impairment. That diagnosis is left unexplained in any further way. What effect, if any, the impairment has on his capacity to give the evidence which the Crown seeks to tender is unexplained in the evidence. It is certainly not said that the cognitive impairment is of a kind which would prevent him from giving any evidence at all, or any of the evidence contained in his statement.

5. [33]

   The brief medical certificate provided does not enable a conclusion to be drawn that Mr Capparelli is mentally or physically unable to give the hearsay evidence which the Crown seeks to tender. Nor does it establish that it is not reasonably practicable to overcome that inability.

6. [34]

   Accordingly, I am unpersuaded that Mr Capparelli is a person within the meaning of s 65 of the Evidence Act who is not available to give evidence about the facts asserted in his statement.

Orders

1. [35]

   I will make the following formal orders based upon the reasons which I have just given:

   1. (1)

      The statement of Paul Kohout dated 11 November 2014, previously Exhibit VD42, will be admitted in the trial and marked Exhibit 686.

   2. (2)

      The running sheet numbered 760/16 dated 14 February 1985, together with three attached photographs, formerly part of Exhibit VD42, will also be admitted into evidence and will be added to Exhibit 686.

   3. (3)

      The statement of Guillermo Guzman dated 8 January 1986, which was formerly Exhibit VD46, will be admitted and marked Exhibit 687.

   4. (4)

      I reject the tender of the statement of Jose Capparelli dated 20 October 1985, formerly Exhibit VD48.