Director of Public Prosecutions v Azizi (Ruling No 2)

[2012] VSC 600

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0107 of 2012

DIRECTOR OF PUBLIC PROSECUTIONS

v

SOLTAN AZIZI

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2012
DATE OF RULING:	27 November 2012
CASE MAY BE CITED AS:	DPP v Azizi (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 600

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CRIMINAL LAW – Murder – Evidence – Admissibility of hearsay evidence – No notice by prosecution of intention to call evidence – Prejudice to accused – Evidence not admitted – Evidence Act 2009 (Vic) s 65(2)(b) and (c), s 67.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms M Williams SC	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J McMahon and Ms M O’Brien	Robert Stary Lawyers

HIS HONOUR:

1. In this matter, the accused man Soltan Azizi is charged with the murder of his wife Marzieh Rahimi on 20 November 2007.  At his previous trial, he was convicted of that charge.  On appeal, the Court of Appeal set aside that conviction and ordered that the accused be retried.  See Azizi v The Queen.[1]  The Court of Appeal gave judgment to that effect on 30 August 2012.

   [1][2012] VSCA 205.

1. In the current trial, the prosecution served on the defence a hearsay notice pursuant to s 67 of the Evidence Act on 20 November.  The trial commenced the next day, on 21 November.  On that day, I heard argument as to the admissibility of the evidence which was sought to be adduced by the Crown as set out in that notice, and I gave a ruling in relation to that matter on 22 November.[2]

   [2]DPP v Azizi (Ruling No 1) [2012] VSC 568.

1. The jury was then empanelled on the next day, Friday 23 November.  Counsel for the prosecution, Ms Williams of senior counsel, and leading counsel for the accused, Mr McMahon, who appears with Ms O’Brien, made their openings to the jury, and I gave the jury directions relating to the issues which had been exposed by the openings.

1. Yesterday, 26 November, the prosecution called three witnesses, namely the deceased woman’s sister Shookria Abid, the interpreter Monis Khaliqy, and Ms Catherine MacKinnon.

1. The evidence by Ms MacKinnon included reference to a telephone call made to her at about 12.30 p.m. on 1 November, in which Marzieh Rahimi appeared to be distressed and told Ms MacKinnon that she had tried to contact the police.

1. Mr McMahon commenced his cross‑examination of Ms MacKinnon in the afternoon, but it is, I think, clear that he has a number of other matters which he will be addressing in cross‑examination today.

1. Last evening the prosecution gave verbal notice to the defence that it now intends to adduce further hearsay evidence from Ms MacKinnon concerning the conversation which she had with Marzieh Rahimi on the telephone on 1 November 2007.  The substance of that conversation is set out at page 67 of the depositions.  Ms Williams informed me today that she only wishes to adduce three aspects of the conversation, which have not yet been the subject of evidence.  Those aspects are, firstly, that Marzieh had told Ms MacKinnon that her husband had been shouting at her and threatening to harm her on the previous night and into the early morning.  Marzieh described that the children were upset.  She advised that she had called the police twice at 1 a.m. but they did not attend advising that they would get a Dari interpreter.  Secondly, that Marzieh Rahimi told Catherine MacKinnon, and I quote, “He hit me on the back when I tried to get away from him”.  And thirdly, the prosecution seeks now to adduce evidence from Ms MacKinnon that in the course of that phone call, Ms Rahimi told Ms MacKinnon that there was verbal abuse and that the accused man had threatened that he would kill her.

1. Mr McMahon has objected to the admissibility of the evidence. 

1. By way of background I note that, in the course of submissions last week in relation to the hearsay evidence, Ms Williams did foreshadow that if the interpreter could be located and identified, through whom Ms MacKinnon spoke to Ms Rahimi on the telephone on 1 November, she would be seeking to adduce the evidence, which I have just summarised.

1. The prosecution has now served notices of two additional witnesses on the defence, namely, the statement of Abbas Kazemi, the interpreter who translated to Ms MacKinnon what Ms Rahimi stated, and Mr Butcher who was the booking department manager for “On Call Interpreters”, who arranged for Mr Kazemi to translate that telephone call. 

1. The evidence is clearly hearsay.  Ms Williams has submitted that it is admissible under s 65(2)(b) and (c) of the Evidence Act.  As hearsay evidence, it would only be admissible if the Crown had given reasonable notice, under s 67(1) of the Act, that it intended to call that evidence.  It has not given such notice and, accordingly, Ms Williams has applied for a direction by me under s 67(4) that she be permitted to call the evidence, which I have just set out, despite the failure of the prosecution to give reasonable notice to the defence in relation to it.

1. Mr McMahon has objected to the evidence, firstly, on the basis that the evidence does not fall within s 65(2)(b) and (c) of the Evidence Act, and further, in any event, he submitted that I should not give the prosecution leave to call the evidence under s 67(4) of the Act.

1. I have reached the conclusion, for reasons which I will shortly state, that the evidence should not be admitted.

1. Without expressing any concluded view on the matter, my tentative view, albeit formed under the pressure of giving a ruling quickly in the matter, is that the evidence probably would be admissible under s 65(2)(b).  However, in my view if the evidence were to be called, without the appropriate notice having been given to the defence, it would, firstly, result in incurable unfairness and injustice to the accused, and, secondly, it would disrupt the trial and compromise the proper conduct of this trial.

1. I say that I have reached a tentative conclusion that the evidence is admissible because, in my opinion, the statements made by Ms Rahimi to Ms MacKinnon on the telephone probably fulfil the requirements of recency and spontaneity which are required in order that the evidence be admissible under s 65(2)(b).  I also consider that the statements on the telephone were made to Ms MacKinnon in circumstances which made it unlikely that the representations were a fabrication.  However, it is not necessary for me to express a concluded view as to that matter.

1. On the issue of fairness, the arguments are very much one way.  In the first place, it is clear that the prosecution has not given reasonable notice to the defence of its intention to call the evidence which I have set out. 

1. As Bongiorno JA stated at paragraph [32] of the decision of the Court of Appeal in Azizi v. The Queen: 

“The requirement for the hearsay notice to be given is not an empty formality, but rather, the existence and form of the notice are necessary conditions precedent subject to judicial dispensation to the non‑application of the hearsay rule”.

1. No explanation has been offered, nor could it be offered, by the prosecution for the failure to give such notice in this case.  It is quite clear from the judgment of the Court of Appeal which, as I say, was delivered on 30 August 2012, that the view of the Court of Appeal was that the evidence which is now sought to be adduced may well have been admissible under s 65(2)(b) of the Evidence Act subject to the calling of the interpreter. 

1. In the course of the judgment of the court, Bongiorno JA made it plain that the difficulty with calling that evidence and the reason why it would otherwise be inadmissible was that the conversation took place through an interpreter, and unless the Crown were in a position to call the interpreter to prove the accuracy of the translation, the evidence would be inadmissible as secondhand hearsay.

1. That point was made clear in the decision of the Court of Appeal.  The prosecution had the decision of the Court of Appeal available to it from 30 August.  The evidence is not collateral or incidental, it is important evidence and, as I say, no explanation has been advanced on behalf of the Crown as to why proper notice has not been given and, indeed, it is only on the third day of this trial after empanelment of the jury that the prosecution now seeks to take this course.

1. In short, the prosecution has created the problem and I should say that the difficulty which has now arisen has been due in no way at all to any fault on behalf of the defence.  That to me is the starting point.  But more importantly it is quite clear that if the prosecution had given proper notice of the evidence, and if I had admitted it, the defence may well have taken a quite different approach both in preliminary openings to the jury and in cross‑examination of the two witnesses whose evidence has been completed.  In particular, I agree with Mr McMahon that there were issues relating to the telephone call of 1 November which may have been the subject of appropriate cross‑examination by him of Shookria Abid, given that Shookria Abid spoke to Marzieh Rahimi twice after 1 November.

1. In addition to that, if the evidence were now to be admitted in the middle of the cross‑examination by Mr McMahon of Ms MacKinnon, that process would give the evidence, sought now to be given, undue prominence and excessive weight in the atmosphere of a criminal trial.  In my view, were I to accede to the application on behalf of the Crown, the calling of that evidence at this critical stage in the trial would elevate its importance totally out of proportion to its appropriate weight.  I agree with Mr McMahon that it would not be an exaggeration to say that the calling of the evidence at this stage would significantly change the tenor and course of the trial.

1. In my view, the prejudice which would be thus occasioned to the defence could not be offset by any appropriate direction by me.  Indeed, as Mr McMahon has foreshadowed, if the evidence were to be admitted I would need to give very serious consideration to discharging the jury which would be highly undesirable.

1. In addition to those matters, Mr McMahon has quite properly indicated that if I were otherwise minded to admit the evidence, he would wish to have a voir dire, in which he could examine the evidence of the interpreter, Mr Kazemi, and he has identified aspects of the statement of the interpreter which it would seem to me would make it not only appropriate but important that such a voir dire be conducted.

1. The prosecution has attempted, but has so far been unable to find Mr Kazemi or get in contact with Mr Kazemi, today.  If I were to rule the evidence admissible, there would need to be the voir dire with further delay.  But in addition to all of that, if I were to admit the evidence, the prosecution would then need to call Mr Kazemi.  His evidence no doubt would be the subject of cross‑examination on the trial.  The prosecution may need to call Mr Butcher, particularly if the evidence of Mr Kazemi is, as I apprehend, so vague as to whether or not he translated the evidence, that the prosecution would need to adduce proper evidence that it was Mr Kazemi who performed the translation exercise.

1. It is also possible that the admission of the evidence could raise the relevance of Magitsas Suresh as a witness and at this stage it is not intended that she be called.

1. Thus, if I were to admit the evidence, there would be disproportionate delay in a trial which otherwise is to be of quite short and concise duration.

1. Over and above all that, it seems to me that there are insurmountable procedural difficulties in calling the evidence at this stage.  As I have stated, Mr McMahon is in the course of cross‑examination of Ms MacKinnon.  Ms Williams has candidly and properly conceded that it would be very cumbersome and difficult at this stage to interpose further evidence‑in‑chief of the type which she seeks to adduce, thereby interrupting the course of cross‑examination in an important criminal trial in which the charge is one of murder.  Ms MacKinnon is an important witness and it would seem to me, particularly given the texture of the current trial, that any interposition of the type of evidence, which is now sought to be adduced, would create a number of procedural difficulties which in themselves would, I apprehend, cause improper unfairness to the defence.

1. I have reached the conclusion I have with a degree of regret, because the evidence is relevant, and were it not for the factors I have outlined, the Crown ought to be entitled to call at least part of it.  It is important evidence and I do not gainsay that proposition.  However, the evidence is also prejudicial, and if it is not called in a proper and timely way, in my view, it can cause incurable prejudice and unfairness to the accused.

1. In the exercise of my discretion I would not grant and do not grant the prosecution leave to call it under s 67(4) of the Evidence Act and I therefore rule that the evidence is inadmissible.