R v Aguer (No 2) - [2024] ACTSC 169

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Aguer (No 2)
Citation:	[2024] ACTSC 169
Hearing Dates:	28-30 May 2024
Decision Date:	30 May 2024
Before:	Mossop J
Decision:	1. The hearsay rule does apply to the evidence of the previous representations set out in the Notice of Intention to Adduce Evidence of Previous Representation filed by the Crown on 24 May 2024.
Catchwords:	EVIDENCE – ADMISSIBILITY AND RELEVANCY – Hearsay – Crown application for ruling that hearsay rule does not apply – written witness statements made in 2018 – witnesses either no longer able to be contacted or reluctant to give evidence at trial – whether witnesses are not available to give evidence for the purposes of s 65 of the Evidence Act 2011 (ACT) – Crown had not satisfied the requirement of “all reasonable steps” to find the witnesses or secure their attendance – hearsay rule applies to exclude witness statements
Legislation Cited:	Criminal Code (Cth), s 135.1(3) Evidence Act 2011 (ACT), ss 65, 137, 142, Dictionary
Cases Cited:	Guojin Huang v Jinghong Wei [2022] NSWSC 222 Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352
Parties:	The King Ruben Aguer ( Accused)
Representation:	Counsel M Keks ( Crown) J Moffett ( Accused)
Solicitors Commonwealth Director of Public Prosecutions Fraser Criminal Law ( Accused)
File Number:	SCC 96 of 2022

MOSSOP J:

Introduction

1․The Crown has asked for an advance ruling that the hearsay rule does not apply to the witness statements of five persons who the Crown says are not available to give evidence.
2․Those persons are:
(a)Adit Atem;
(b)Sarah Biar;
(c)Anderia Chol;
(d)Deng Mayen; and
(e)Linda Hayden.

3․Their evidence is said to be subject to the exception to the hearsay rule set out in s 65(2)(c) of the Evidence Act 2011 (ACT). Section 65 provides, relevantly:
65Exception—criminal proceedings if maker not available
(1)This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(c)was made in circumstances that make it highly probable that the representation is reliable; or

…
NoteSection 67 imposes notice requirements relating to this subsection.

…

4․A critical concept in subs (1) is that the person is “not available to give evidence”. The meaning of that is provided by the Dictionary to the Act. Section 4 of Pt 2 of the Dictionary to the Evidence Act provides:
4Unavailability of people
(1)For this Act, a person is taken not to be available to give evidence about a fact if—
…
(f)all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person’s attendance, but without success; or
(g)all reasonable steps have been taken, by the party seeking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Aguer (No 2)

Details

AGLC: R v Aguer (No 2) [2024] ACTSC 169
Case: [2024] ACTSC 169
Decision Date: 30 May 2024

CaseChat Overview and Summary

In the case of R v Aguer (No 2), the applicant, the Crown, sought to adduce hearsay evidence in the form of written witness statements made in 2018. The statements were from witnesses who were either no longer contactable or reluctant to testify at the trial. The case was heard in the ACT Supreme Court, presided over by Justice Hall. The primary legal issue before the court was whether the hearsay rule should be excluded from applying to the evidence in question, and specifically, whether the witnesses were unavailable for the purposes of section 65 of the Evidence Act 2011 (ACT).

The court examined the requirement that "all reasonable steps" must be taken by the Crown to locate or secure the attendance of the witnesses. The Crown argued that despite their efforts, the witnesses could not be found or were unwilling to testify. Justice Hall held that the Crown had not met the burden of demonstrating that all reasonable steps had been taken. Consequently, the hearsay rule applied, and the evidence of the previous representations was inadmissible. The court determined that the witnesses were not truly unavailable as required by the statutory provisions, leading to the exclusion of the statements.

The court's decision was grounded in the legislative requirement that the Crown must demonstrate all reasonable steps to secure the attendance of witnesses. The evidence provided by the Crown did not sufficiently meet this threshold, resulting in the application of the hearsay rule. The court's ruling underscores the importance of diligent efforts to locate and secure the attendance of witnesses before relying on hearsay evidence. The court's decision was clear and definitive, and it resulted in the exclusion of the contested evidence from the trial.

Orders

Orders of the court

1. The hearsay rule does apply to the evidence of the previous representations set out in the Notice of Intention to Adduce Evidence of Previous Representation filed by the Crown on 24 May 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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