R v Carbone

1. [1]

   The Accused is charged with murdering Bradley Dillon on 11 August 2014. The Crown now seeks to lead hearsay evidence of a witness Kale Turner on the basis that Kale Turner is not available to give evidence. A Notice under s 67 of the Evidence Act 1995 (NSW) was given on 1 November 2016.

2. [2]

   The evidence sought to be adduced is contained in a statement made by Mr Turner to the NSW Crime Commission on 25 May 2015. As paragraph 5 of the statement makes clear the statement was an induced statement made after police investigating the deceased's death attended at Mr Turner's unit to enquire about his knowledge of the deceased's murder. It has been agreed between the Crown and those acting for the Accused that much of the material contained in the statement will not be adduced. The material sought to be adduced consists of some background information showing how Mr Turner came to meet the Accused. This happened by virtue of their membership at a Fight Gym called “St Michael’s Christian Fight Club” in Petersham or Lewisham. Mr Turner knew the accused as Beaver although he also knew his correct first name was Diego. On the apparently few occasions on which Mr Turner met or saw the Accused it was through a mutual friend with whom Mr Turner shared a flat called Tom Sayer.

3. [3]

   The particular evidence which the Crown seeks to adduce is as follows:

4. [4]

   The remainder of the evidence sought to be adduced concerns Mr Turner and his flatmate Tom giving the Accused about $1,500 or $1,800 that they had in the house.

5. [5]

   Section 65 of the Evidence Act relevantly provides:

6. [6]

   Clause 4 of the Dictionary sets out the situations where a person is taken not to be available to give evidence as follows:

7. [7]

   The s 67 Notice seeks to rely on s 65(2)(d). The Crown submitted that the representation was against the interest of Mr Turner because it tended:

8. [8]

   The Crown submitted that Mr Turner was not available because:

9. [9]

   The Accused opposes the admission of the evidence.

10. [10]

    It is necessary for the Crown to establish:

Unavailability of the witness

1. [11]

   There is a statement from Senior Constable Marie Sawtell from the Queensland Police Service. She said that on 24 October 2016 she attended at an unnamed address and spoke to two persons who said that they were Mr Turner’s parents. Her statement said that she asked them of the whereabouts of Mr Turner. The statement then goes on to say:

2. [12]

   An email from the Officer in Charge of the investigation, Detective Sergeant Hunt, to the DPP disclosed that investigations with the Immigration Department showed that Mr Turner had departed Australia on 11 June 2015 and had not returned. That was consistent with information obtained from an estate agent that Mr Turner and his girlfriend had moved out of premises they were renting in about June 2015.

3. [13]

   Email addresses were obtained for Mr Turner and his girlfriend and on 19 October 2016 another officer of the Homicide Squad sent an email to Mr Turner informing him that the trial was due to commence on 7 November, that it was believed Mr Turner might be residing in the United Kingdom, that he was required to give evidence and that arrangements could be made to do this via AVL. The officer asked for Mr Turner to contact her at his earliest convenience.

4. [14]

   Mr Turner replied by email on 28 October 2016 and said this:

5. [15]

   Detective Hunt gave evidence before me on the application. His evidence was that he first found out two weeks ago that Mr Turner had left Australia in June 2015. He understands that Mr Turner is travelling around Europe but he does not know where he is. He has no address for him.

6. [16]

   Although, in the first instance, it might be thought that making attempts to have a witness attend to give evidence some two or three weeks before a trial does not demonstrate that all reasonable steps have been taken, the circumstances of Mr Turner’s whereabouts must be considered. Even if the Crown had sought some months earlier to locate Mr Turner and make arrangements for him to give evidence, whether by AVL, or by being brought home to do so, it seems clear that the outcome would have been the same as it now is. Mr Turner appears not to want to give evidence and will not co-operate to enable that to occur.

7. [17]

   A similar situation arose in R v Kazzi; R v Williams; R v Murchie [2003] NSWCCA 241; 140 A Crim R 545. That was an appeal by the Crown pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against the decision by the trial judge refusing to admit the evidence of a statement by a Mr Gujral who was unable to be found. It seemed that Mr Gujral was somewhere in India and, although the police made extensive inquiries about his whereabouts within Australia, they did not make enquiries about his whereabouts in India.

8. [18]

   Justice Ipp (Grove and Dowd JJ agreeing) said:

9. [19]

   In circumstances where it seems only to be speculated where Mr Turner is or was at any given time, the Crown does not fail by showing that all reasonable steps have not been taken notwithstanding the fairly recent commencement of their enquiries.

Is s 65(2)(d) satisfied?

1. [20]

   Section 65(2)(d) has recently been considered by the High Court in Sio v The Queen [2016] HCA 32; (2016) 90 ALJR 963. The Court there stressed that a compendious approach to the evidence sought to be adduced does not conform to the requirements of the Act. Attention needs to be given to each relevant fact sought to be proved by tendering the evidence under s 65. The Court said:

2. [21]

   In the present case, the significant representations sought to be relied upon are those contained in paragraphs 41 and 42 of the statement. It is apparent that, when what is there set out in that statement is regarded separately, it cannot be said that the representation was against the interests of Mr Turner by reason of his involvement with drugs, the St Michael’s Fight Club or other involvement in criminal activities. There is simply nothing in the conversation recorded that relates to those matters. In any event, there is nothing in the statement which suggests any criminality or wrongdoing associated with the Club, nor is there anything else in the statement concerning wrongdoing on Mr Turner’s part except for his involvement with drugs.

3. [22]

   On the other hand, the statement suggests that, having received the information he did about the shooting of the “guy from school” Mr Turner did not, until he made the statement now sought to be adduced in evidence, take any action to report the involvement of the Accused or Tony in a serious indictable offence. Moreover, Mr Turner said that he assumed that the Accused wanted the money he asked for and was given “to get away”. That would make Mr Turner an accessory after the fact to the offence constituted by the shooting.

4. [23]

   I am satisfied, therefore, that the representation in paragraph 41 of the statement was made against the interests of Mr Turner at the time it was made. It is also necessary for the Crown to show that the representation was made in circumstances that make it likely that the representation is reliable.

5. [24]

   Detective Baskar, who in 2015 was with the Homicide Squad, gave evidence about the making of the statement. He said that Mr Turner wanted to make an induced statement because of concern about his own involvement in drugs and his association with drug dealers. Detective Baskar said that Mr Turner had a criminal record but he did not know for what offences he had been convicted.

6. [25]

   The Crown points to other evidence in the brief of evidence to point to the reliability of the information provided. That evidence shows the presence of the accused at the scene including DNA evidence. It shows evidence of intended flight and other evidence of the money the accused had at the airport when he attempted to leave Australia. The Crown submits that what was said by Mr Turner in paragraphs 41 and 42, when he did not know about the DNA evidence or the finding of money on the Accused at the airport, is consistent with that other evidence and therefore points to its reliability.

7. [26]

   When viewed as a whole in that way there is some support for its reliability but as noted earlier the High Court said it is necessary to consider each particular representation relied upon. The most significant is what is contained in what Mr Turner asserts the Accused said in the first three lines of paragraph 41 which was this:

8. [27]

   Further, the fact the statement was induced because of concerns by Mr Turner about his own position, his involvement with drugs, his assistance to the accused, and his failure to report a serious indictable offence, do not necessarily lead to a conclusion of reliability. Indeed the contrary may be true. In Sio the Court said at 65:

9. [28]

   There is certainly nothing in the timing of the making of the statement which points to reliability. It was not, as in Sio, so contemporaneous with the events that made it unlikely that the statement was a fabrication (as in s 65(2)(b)).

10. [29]

    I cannot be satisfied from the paucity of the evidence that the representation was made in circumstances that make it likely that it was reliable.

11. [30]

    Even if s 65(2)(d) had been satisfied it would be incumbent upon me to take into account the matters in s 192(2) and in particular paragraph (b) being the extent to which the right to rely on the statement would be unfair to the Accused. Coupled with that is the necessity of refusing the admission of evidence in s 137 if the probative value is outweighed by the danger of unfair prejudice to the Accused. The probative value is high but, for that very reason, the unfair prejudice to the Accused in not being able to test the evidence is significant. As the High Court said in Sio at [60]:

12. [31]

    On one view there is a lower threshold of unfairness under s 192(2)(b) that is involved in the balancing exercise under s 137 which in any event concerns unfair prejudice.

13. [32]

    In any event two matters in particular satisfy me that unfair prejudice would be caused to the Accused by the admission of the statement. First, Mr Turner's credit would a significant issue, given his background and involvement with drug dealers, his behaviour after the post offence contact with the Accused, his criminal record and his knowledge asserted by the defence of the deceased's involvement with drugs.

14. [33]

    Secondly, and significantly, the Crown has said it is not calling Tom Sayer who was Mr Turner's flatmate and who, according to Mr Turner's statement, was present at the time of the crucial event and conversation recorded in paragraphs 41 and 42. The absence of Tom Sayer adds further unfairness to the Accused's position if this statement is admitted.

15. [34]

    The Crown submitted that any unfairness or unfair prejudice could be met by clear direction to the jury concerning the fact that Mr Turner's evidence has not been tested. Although the Court of Criminal Appeal has said more than once that it is necessary to work on the basis that juries obey directions given to them, any direction here would involve an evaluative judgment on the weight to be given to untested evidence and in circumstances where the recipient of the inculpatory statement is not called.

16. [35]

    In my opinion the requirements of s 65(2)(d) are not satisfied, and even if they were I would refuse to admit the evidence by reason of its unfairness to the Accused and because its probative value is outweighed by unfair prejudice.