R v Krivosic

HIS HONOUR: The Crown seeks an advance ruling pursuant to s 192A of the Evidence Act 1995 on the admissibility or use of evidence proposed to be adduced. The evidence in question is contained in the statement of Adam Robertson dated 30 August 2018. It is agreed for present purposes that all attempts to secure Mr Robertson’s attendance at Court have been unsuccessful and that he is a person who both made a previous representation and is unavailable to give evidence about an asserted fact: s 65(1) of the Act.

Section 65(2) of the Act provides as follows:

The Crown contends that paragraphs (b) and (c) apply to the evidence, in the following circumstances.

The events that give rise to these proceedings concern the death of George Nassif caused by a gunshot wound on 22 July 2018. The Crown alleges that Marko Krivosic shot Mr Nassif at an apartment in Warwick Farm and then fled the scene. Mr Robertson has provided a statement to the police in the following relevant terms:

I am informed that the Crown intends to rely upon material concerning the phone call made using Mr Robertson’s phone to support an inference that it was Mr Krivosic who came to Mr Robertson’s apartment at about 5.30pm on 22 July 2018.

The Crown maintains that Mr Robertson’s statement was made shortly after the asserted facts occurred and in circumstances that make it highly unlikely that it is a fabrication. Alternatively or additionally, they contend that it was made in circumstances that make it highly probable that it is reliable.

Despite his usual persuasive and helpful submissions, I am unable to accept Mr Steel’s contention that the statement does not satisfy either paragraph of s 65(2) of the Act. Applying common sense to the evidence concerned, it seems to me to be highly probable that the statement is reliable. It is difficult to conceive of circumstances in which a statement such as Mr Robertson’s statement would have been provided to the police if it were not generated by the very incidents that it describes. Moreover, the statement was provided to the police when they contacted Mr Robertson as the subscriber of the phone referred by him in the statement. Such circumstances make it highly unlikely in my view that anything contained in the statement is a fabrication.

I consider that the portions of the statement which the Crown wishes to tender are admissible.