R v Rogerson; R v McNamara (No 21)

Hubert Sha, who is currently giving evidence in the Crown case, made a statement to police on 7 July 2014. Paragraphs 22 and 23 of that statement relate to a conversation at which the witness was present with two persons he has described as "two Asian males". The conversation is said to have occurred in the area of Davies Road in Padstow on 20 May 2014 at a time when the witness and a number of other persons were searching for the deceased.

Paragraphs 22 and 23 are in the follows terms:

Mr Thomas of counsel, who appears on behalf of the accused Rogerson, seeks to cross-examine the witness with a view to eliciting the contents of those two paragraphs, but particularly the contents of paragraph 23.

Paragraph 23 was the subject of an earlier judgment which I delivered yesterday: R v Rogerson; R v McNamara (No 19) [2016] NSWSC 74. On that occasion, the Crown had sought to rely upon s. 65 of the Evidence Act 1995 (NSW) (“the Act”) to support the admission of representations said to have been made by the two Asian males to Mr Sha as set out in paragraph 23 of his statement. In the light of the evidence that was tendered in relation to that application, I was not able to conclude that either of the Asian males could be regarded as being "unavailable" in the sense contemplated by the Act.

I also observed that even if I had reached a contrary view in respect of that issue, I would have been minded to exclude the evidence pursuant to s. 137 of the Act. As will be apparent from the reasons I gave on that occasion, I placed some emphasis on Mr Sha’s concession that he understood only part of the conversation because it was conducted principally in Mandarin which is not his mother tongue.

The circumstances in which the issue has now arisen are slightly different, in the sense that the evidence is sought to be elicited in cross-examination. In that regard, I have been referred to s. 65(8) of the Act:

Although, when the matter previously arose, reliance was placed by the Crown on ss. 65(1) and (2), it remains the case, for the reasons set out in my earlier judgment, that I am not satisfied that either of the Asian males is not available.

Further, in the course of Mr Sha being cross-examined before the jury on 12 February 2016, he said the following (commencing at T631 L4):

Irrespective of questions of the availability of either person, counsel for McNamara objects to the evidence being given on the basis that the circumstances lend themselves to the application of s. 135 of the Act which is in the following terms:

Ms Shead has pointed, in particular, to the fact of Mr Sha’s limited understanding of Mandarin (that being the language in which Mr Sha says that the majority of the conversation was conducted) and has submitted that in those circumstances, any evidence which might be given by Mr Sha is likely to be misleading or confusing.

Mr Thomas has submitted that the evidence ought not be excluded. He pointed to the fact that Mr Sha, on any view of the evidence, has stated that only some of the conversation was in Mandarin, and that there is therefore a clear inference that part of the conversation was in a language, or languages, that Mr Sha could understand. Mr Thomas has submitted that in those circumstances, none of the provisions of s. 135 are applicable.

It is apparent from Mr Sha’s statement that there were parts of the conversation which were in Mandarin, and which he therefore he did not understand. It is also clear that Cantonese is Mr Sha’s mother tongue, and that there was, as he described it, only "a little bit" of the conversation which was conducted in that language.

In my view, issues of availability aside, the difficulty with the evidence being admitted is that on Mr Sha’s own admission he could understand only part of the conversation. It follows that any evidence Mr Sha can give of the conversation is not a complete account of what was said, such that his account would be necessarily disjointed and incomplete. That gives rise to the possibility of the evidence being misleading or confusing.

For all of these reasons, I refuse to admit the evidence.