R v Yavuz (No. 4)

The background to this matter is set out in R v Yavuz (No. 1) [2017] NSWSC 1645.

At the retrial in this matter the Crown sought to tender, during the evidence of Youness Elmrabt, the recording and transcript of the triple-0 call which Mr Elmrabt made immediately after the stabbing of the deceased occurred. Mr Littlemore QC objected to the tender on the basis that it was a prior consistent statement, that s 108(3)(b) of the Evidence Act 1995 (NSW) dealt with prior consistent statements, and that what is provided in s 108(3)(b) does not make it admissible.

The Crown relied on s 66A for the admissibility of the material, but in the alternative on s 66.

I ruled that the triple-0 call was admissible. These are my reasons for so doing.

The Evidence Act relevantly provides:

Mr Littlemore submitted that the triple-0 call was a prior consistent statement. He submitted that s 66 was not a licence to admit prior consistent statements. It was not a provision for credit bolstering by the admission of such statements. Mr Littlemore submitted that the witness had given his evidence of what he observed. The triple-0 call would only become admissible if, effectively, he were under attack concerning his evidence, particularly if it was asserted that the evidence was recent invention.

He submitted that s 66(2) assumes that evidence of what is contained in the representation has not been given, and that the representation itself is the only source of the evidence. Otherwise, giving evidence of the representation would be merely giving evidence of a prior consistent statement. If the evidence has been given, then evidence of the representation is just credit bolstering. He pointed to s 108(3)(b) of the Evidence Act as showing the circumstances where a prior consistent statement is admissible.

In relation to s 66A, Mr Littlemore submitted that the word “knowledge”, on which the Crown relied, must be read ejustem generis with the other words in the section so that when knowledge is referred to it is not knowledge of facts in issue but in relation to things such as the witness’s own health, feelings, sensations etc.

There can be no doubt that, in the first instance, the evidence contained in the triple-0 call is relevant inasmuch as it could rationally affect the assessment of the probability of the existence of the fact in issue. The facts in issue are what Mr Elmrabt observed and heard at and around the time of the stabbing. What Mr Elmrabt said in the triple-0 call is hearsay because it is evidence of a previous representation made by a person to prove the existence of those facts: s 59(1). However, the exception in s 66 means that the hearsay rule does not apply to evidence of the representation that is given by the person who made the representation if they are available to give evidence, and if, when the representation was made, the occurrence of the asserted facts was fresh in the memory of that person.

Section 108 is concerned with the credibility rule and re-establishing credibility. There is no such issue here. At the time the Crown sought to tender the triple-0 call Mr Elmrabt’s credit was not in issue because he had not then been cross-examined. Section 108(3) does not impliedly make prior consistent statements inadmissible. The sub-section is a provision which allows admission of evidence of a prior consistent statement which would otherwise be excluded by the credibility rule. This was emphasised by the High Court in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57, where the joint judgment said at [35]:

The matter was picked up by the Court of Criminal Appeal in Odisho v R [2018] NSWCCA 19 at [157] as follows:

The argument is also similar to what was raised IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [71], albeit that was a case concerned with complaint evidence. The joint judgment of French CJ, Kiefel, Bell and Keane JJ said at [71]-[72]:

In that case the evidence had been admitted under the exception in s 66 (see at [6]), and the High Court upheld that decision although it quashed the conviction on another ground.

Mr Littlemore submitted that if the person had given the evidence which is contained in the earlier representation, the earlier representation has no more status than a prior consistent statement, and there must be some restriction on the admissibility of prior consistent statements.

The difficulty for that argument is that, unless a prior consistent statement is excluded by reason of the credibility rule in s 108A or the hearsay rule, it may be, and here is, relevant evidence under s 55 and therefore admissible under s 56.

I agree with the learned author of Stephen Odgers, Uniform Evidence Law, 2018, 13th Ed, Law Book Co. at paragraph [EA.101A.150] where he says:

Mr Littlemore agreed that if the evidence of the representations in the triple-0 call had been given first before Mr Elmrabt gave his evidence of what happened on the day, the triple-0 call may have been admissible. He submitted, however, that where that evidence had been given before the triple-0 call, the evidence of the call was simply unnecessary.

It cannot be that the evidence of the triple-0 call could be admissible if given first but inadmissible if given second where, on the face of ss 55 and 66 there is nothing to preclude the evidence being given, and those sections permit its admission. In any event, that course is prima facie prohibited by s 66(4).

Here, the circumstances set out in s 66(2) are satisfied because at the time the representation in the call was made it was fresh in the memory of Mr Elmrabt, and he was called to give evidence.

I note in passing that in R v Castaneda (No 2) [2015] NSWSC 979 Wilson J cited s 66 in admitting a triple-0 call made by an accused immediately after a killing where the accused relied on self-defence. Wilson J said at [21]:

For these reasons, I ruled that the evidence contained in the triple-0 call was admissible.

Since ruling in this matter on 14 November, Mr Elmrabt was cross-examined robustly, and his credit was certainly put in issue, even touching his evidence in the triple-0 call. In those circumstances, it would have been open to the Crown to have tendered the call in re-examination based on s 108(3)(b).