R v Rogerson; R v McNamara (No 19)

The Crown has led evidence from a number of friends and acquaintances of the deceased who went searching for him in the Padstow area at or about the time of his disappearance. In the course of that evidence, reference has been made to the presence of two Asian males who were seen in the vicinity of the location at which the parked car of the deceased was found.

One of the witnesses who has given such evidence is Hubert Sha. The Crown is seeking to lead the contents of paragraph 23 of a statement made by Mr Sha on 7 July 2014 which is in the following terms:

It will be evident that that paragraph contains a number of representations said to have been made by one or other of the Asian males to Mr Sha. It is these representations upon which the Crown seeks to rely. In doing so, the Crown calls in aid the provisions of ss. 65(1) and (2) of the Evidence Act 1995 (NSW) (“the Act”) which are in the following terms:

In addition, s. 4 of Part 2 of the Dictionary to the Act is in the following terms:

Ms Shead, who appears on behalf of the accused McNamara, has objected to the evidence, and has submitted that I could not come to the conclusion that either of the Asian males is a person who is not “available" for the purposes of s. 65. Even if I were to reach a contrary conclusion, Ms Shead submits that I should nevertheless exclude the evidence pursuant to s. 137 of the Act. In that regard, she points, in particular, to the admission made by Mr Sha that he did not understand the entirety of the conversation due to the fact that it was conducted in a language with which he was not completely familiar.

In support of the proposition that the two Asian males to whom Mr Sha spoke are not available, the Crown called evidence from Detective Phillips, who is one of the police in charge of the investigation. Detective Phillips purported to identify the two Asian males as being a Mr Chan and a Mr Fung. He gave evidence that both of those persons have left Australia and have not returned.

However in the course of being cross-examined by Ms Shead, and particularly at T269 L21-26, Detective Phillips effectively conceded that despite thorough investigations, he could not positively identify the persons in question as being Mr Chan and Mr Fung. He said that he held a "strong suspicion" as to their identity, but could not go further than that.

In my view, before one reaches the position of having to consider the question of availability for the purpose of s. 65, there is a preliminary issue, namely whether or not the person who is said to be unavailable can be positively identified. In my view, the evidence falls short of affirmatively establishing that the two persons in question are in fact the persons Chan and Fung. It may well be that Detective Phillips holds a strong suspicion that this is the case. However in my view that suspicion, in the terms in which he expressed it, falls substantially short of a positive identification of either person.

The Crown submitted that even if that point were reached, it would not preclude a conclusion that the two persons were not available. Indeed, the Crown went so far as to submit that if I concluded that neither person could be positively identified as Mr Chan or Mr Fung, its position would be strengthened. I am unable to accept that submission. In my view, as a matter of common sense, one cannot assert that a person is not available unless and until that person is positively identified in the first instance. For that reason, it is not open to the Crown to rely upon s. 65 as I am not satisfied that either of the two Asian males to whom Mr Sha refers is not available to give evidence. The evidence should therefore be rejected.

In view of the conclusions that I have reached, it is not necessary for me to consider Ms Shead's alternative submission in respect of s 137. However I should say that had I concluded that it was open to the Crown to rely upon s. 65, I would have been minded, subject to hearing any further submissions from the Crown, to exclude the evidence under s. 137 in any event. Clearly, on the basis of Mr Sha's own evidence about the language in which the conversation was conducted, he was not in a position to understand the majority of what was being said.

For all of those reasons, the evidence is rejected.