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 to prove the person is not available, to compel the person to give the evidence, but without success.

(2)In all other cases the person is taken to be available to give evidence about the fact.

5․The Crown’s application was based on either paras (f) or (g). I consider that para (f) is the applicable provision, given that the persons have not been found so as to be able to give them a subpoena to secure their attendance.

6․For the purposes of the present application, the burden of demonstrating the conditions of admissibility of evidence under the Evidence Act lies upon the tendering party: Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 at [17]. The standard of proof for the facts necessary for deciding a question whether evidence should be admitted or not admitted is the balance of probabilities: Evidence Act, s 142.

7․Counsel for the accused advanced four submissions in response to the Crown’s application:

(a)the notice given was not reasonable;

(b)the relevant persons have not been shown to be “not available to give evidence”;

(c)each representation was not made “in circumstances that make it highly probable that the representation is reliable”; and

(d)s 137 of the Evidence Act means that the evidence cannot be admitted because the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.

8․Both parties made detailed submissions in relation to all of these issues. Notwithstanding that it will not do justice to the detail and quality of the submissions that were made, for the reasons that follow, it is not necessary to address each of these contentions. In my view, the Crown has not proved that any of the persons who made the representations contained in the witness statements are not available to give evidence. The consequence is that s 65 cannot be relied upon to avoid the hearsay rule. In those circumstances, it is unnecessary to address the other issues that would have arisen had s 65 been otherwise applicable.

The context for determining whether all reasonable steps have been taken

9․The context in which the question of unavailability must be decided is a criminal case alleging 31 counts of breaching s 135.1(3) of the Criminal Code (Cth): dishonestly causing a loss to the Commonwealth. The maximum penalty is 10 years’ imprisonment on each count.

10․The representations that are sought to be admitted are those in the witness statements signed by each of the relevant witnesses. Certain paragraphs or other parts of those statements are identified by the Crown as not being sought to be relied upon. It is unnecessary to describe those in detail.

11․Each of the witnesses was providing evidence in their statement relevant to one or more of the counts. All witnesses, except Ms Hayden, gave evidence about the provision of childcare to a child. The witness was either a parent of a child who could say who provided care, or one of the carers (referred to in the jargon as an “educator”) who could say whether they provided care to a particular child. In each case (except for the statement of Ms Hayden), the evidence sought to be relied upon is significant because it is to the effect that:

(a)the witness did not provide care for a particular child in relation to whom claims asserting that care had been provided to that child were made to the Commonwealth; or

(b)the witness’ child was not cared for by a particular person in relation to whom claims asserting that care had been provided by that person to that child were made to the Commonwealth.

12․Those two issues are essential components of the charges against the accused. Whether or not care was provided is likely to be one of the two significant issues at the trial. The other is likely to be whether the Crown has established beyond reasonable doubt that the accused was aware that he was making claims for care that had not been provided.

13․The significance of the evidence of the witnesses in relation to individual counts is as follows:

(a)Adit Atem provides part of the evidence in relation to count 10, along with a witness who is available. She provides part of the evidence for count 22, along with two of the witnesses said to be unavailable. On count 11, her evidence is the only evidence.

(b)Deng Mayen provides part of the evidence in relation to counts 9 and 29, along with two other available witnesses.

(c)Sarah Biar provides part of the evidence in relation to count 18, along with one witness who is available and one witness who is said to be unavailable. She provides part of the evidence relating to count 30, along with one witness who is available and one witness who is said to be not available. She provides part of the evidence on counts 22 and 27, along with witnesses who are said to be unavailable.

(d)Anderia Chol provides part of the evidence in relation to counts 18, 30 and 31, along with witnesses who are available. He also provides part of the evidence in relation to counts 22 and 27, along with witnesses who are said to be unavailable.

(e)Linda Hayden’s evidence is relevant to count 7 and is corroborative of the evidence of another available witness.

14․The reasonableness of the steps taken to secure the attendance of witnesses must be assessed in this context. In summary, it involves multiple serious criminal charges, some of which are dependent upon the evidence of unavailable witnesses and some of which are not solely dependent upon unavailable witnesses. There are a significant number of charges which are not affected by the evidence of witnesses said to be unavailable.

Evidence

15․Evidence as to the steps taken in order to secure the attendance of the persons was contained in the affidavit of Daniel Charles Morrison, a lawyer at the Commonwealth Director of Public Prosecutions (CDPP), dated 24 May 2024. He was cross-examined on that affidavit. Evidence was also given by the informant Claudia Mullin and Alyse MacPherson, who were both, at the relevant time, officers of the Commonwealth Department of Education.

16․The steps taken in relation to each of the witnesses were helpfully summarised in a schedule to the written submissions made on behalf of the Crown. The taking of those steps was not the subject of dispute. There was some dispute as to what additional steps may reasonably have been taken.

17․Both parties made reference to a number of authorities relevant to the question. Given the fact-sensitive nature of the exercise, it is unnecessary to refer to those authorities.

Submissions

18․Counsel for the Crown submitted that all reasonable steps had been taken to find the person or secure their attendance but without success, or, alternatively, that all reasonable steps had been taken by the Crown to compel the person to give evidence but without success. As I have indicated earlier, I consider that the first of those formulations is the relevant one. Counsel submitted that right up until the making of the application, there was reason to hope that the witnesses would be able to be secured. Although he did not say that Australian Federal Police (AFP) assistance was unavailable, he did identify that the need to make a request for assistance from the AFP was a “friction point” in the efforts to secure the attendance of witnesses.

19․Counsel for the accused placed emphasis upon the failure to seek assistance from the AFP in relation to the service of the subpoenas and the absence of enquiries made of other Commonwealth records, or the records of third parties, which may have assisted in identifying addresses at which each of the witnesses could be served.

Consideration and conclusions

20․The general considerations to be taken into account on an application such as this are outlined by Kunc J in Guojin Huang v Jinghong Wei [2022] NSWSC 222 at [41]-[42]. The parties referred to a variety of other cases in which reasonable steps have been found or not found to have been taken. As Kunc J pointed out in Huang, the factors to be taken into account will be as various as the facts of individual cases, and what is reasonable is a deeply fact‑sensitive question. As his Honour pointed out, the following matters will be relevant:

(a)the nature of the case;

(b)the importance of the evidence;

(c)the enquiries that have been made and their outcome;

(d)who is the party making the enquiries and about whom the enquiries are being made;

(e)the likelihood of any specific step yielding useful information; and

(f)the cost and delay that any particular step might cause.

21․In the present case, it is relevant to note that the case is a criminal prosecution, the evidence of each of the witnesses is significant (noting that the evidence of Ms Hayden is less significant) and the party seeking to secure the attendance of the witnesses is the Crown. The fact that, as a result of the administrative arrangements within the Commonwealth, the informant is a public servant within the Department of Education rather than a police officer, does not, in my view, detract from what might be considered to be reasonable steps to secure the attendance of a witness.

22․Dealing with the witnesses collectively, each of the relevant witnesses made a statement to officers of the Department in 2018. The approach, following the taking of statements, was to attempt to keep in contact with the witnesses by telephone up until subpoenas were issued. Many of the telephone calls to the witnesses went unanswered or the conversations were such as to indicate a reluctance on the part of the witness to give evidence. Subpoenas were issued by the court on 22 February 2024, requiring the attendance of each witness to give evidence. The last day for service of those subpoenas was 17 May 2024. In each case, a process server was engaged to attempt to serve the relevant subpoena. It is notable that, so far as the evidence discloses, the engagement was simply as a process server rather than a private investigator and, as a consequence, there is only evidence of very limited activities beyond attendance and attempt at service by the process server. In each case, attempts were made to serve the subpoena which were unsuccessful. The only other steps that were taken involved telephone calls made by the informant and the solicitor from the CDPP. Those calls were either unanswered or did not result in any information allowing the subpoena to be served. Notwithstanding the lack of success in locating and serving the witnesses, no assistance was sought from the AFP to either:

(a)serve the subpoena; or

(b)provide intelligence or make enquiries that may have assisted the informant to provide instructions to the process server so as to allow the subpoena to be served.

23․The evidence did not establish that there was some barrier to obtaining this form of intra‑governmental cooperation. There was evidence that assistance had been obtained from the AFP at earlier stages of the investigation in relation to applications for search warrants and their execution, and the provision of a criminal history.

24․The evidence was that, although the informant had available to her some access to a Centrelink database which might assist in locating the witnesses, that was not complete access to all relevant information held by Centrelink. Precisely what was available to her was not elaborated upon in the evidence. Further, no other searches were made of government or police records which might have allowed the persons to be located and served.

25․The critical period for attempts to secure the attendance of the witnesses was between 22 February 2024 and 17 May 2024. That was the period from the issue of the subpoenas until the last day for the service of those subpoenas upon each of the witnesses. Although communications prior to 22 February 2024 were of some relevance, insofar as they indicated reluctance on the part of some witnesses to give evidence, that is not an uncommon situation, and it is really only in the period from about the time when subpoenas were issued that additional steps may have been taken in order to enable those subpoenas to be served. The three months available for service of the subpoenas was a substantial period in which to achieve service.

26․In relation to each of the witnesses, the specific evidence as to the efforts made to secure their attendance and my conclusions as to whether or not the witness is unavailable are as follows.

Adit Atem

27․The statement signed by Ms Atem is dated 6 August 2018. Between March 2023 and April 2024, the informant contacted or attempted to contact Ms Atem by telephone on at least eight occasions. A lawyer from the CDPP contacted her by telephone on 20 May 2024 but the call ended soon after it started and a subsequent call to the number was not answered. Two attempts at service at her previous address were made on 8 and 14 March 2024. On the second occasion, a neighbour informed the process server that Ms Atem had moved address six months ago. The process server spoke to Ms Atem over the phone and she confirmed she no longer resided at that address. She did not provide a new address.

28․The informant does not have any updated address details.

29․As I have indicated, subsequent to the attempt at service, a telephone call to her on 5 April 2024 was unsuccessful. On 8 April 2024, the informant spoke to her, but she said that she could not talk. On 20 May 2024, the lawyer from the CDPP spoke to her and she said she would call back but she did not.

30․There is no evidence of any other enquiries having been made in order to locate her new address and allow her to be served with a subpoena.

31․I am not satisfied that the steps proven to have been taken in relation to Ms Atem meet the standard of “all reasonable steps”. In particular, no real attempt appears to have been made to locate any updated address. No attempt was made to obtain the assistance of the AFP to serve the subpoena or provide information that might assist in the service of the subpoena.

Sarah Biar

32․Ms Biar signed a witness statement on 3 August 2018. The informant made a number of telephone calls to her in 2023. On two occasions, in April and November 2023, the witness expressed some reluctance to give evidence. On 8 March 2024, a process server attempted service of the subpoena at an address in Amaroo in the Australian Capital Territory. The property was observed to be empty. No contact was made with any occupants or neighbours.

33․Ms Biar was contacted by telephone and said that she would call back but did not. She indicated that she had a young baby. The informant made three unsuccessful telephone calls to the witness in April 2024. A new address for her was located. The only evidence as to how this was obtained was that of Mr Morrison, the CDPP lawyer, who said that he inferred that it had been obtained from updated Centrelink details. This was an address in Western Australia. On 13 and 16 May 2024, attempts were made to serve her at that address. The property was empty and there was no sign of any activity there. On 24 May 2024, a lawyer from the CDPP left a voicemail for her.

34․I am not satisfied that the steps taken to serve Ms Biar and thereby procure her attendance satisfy the requirement of “all reasonable steps”. In particular, in my view, upon the failure to serve on 8 March 2024, it would have been reasonable to immediately search any government records for an updated address and, assuming the Western Australian address was identified, to arrange service at that address. If that service was not successful, it would have been reasonable to obtain assistance from the AFP to provide intelligence relating to her whereabouts or to undertake the service of the subpoena.

Anderia Chol

35․Mr Chol is Ms Biar’s husband. He made a statement on 3 August 2018. In two telephone calls in 2023, when he was told of the trial date, he indicated a reluctance to give evidence. On 8 March 2024, a process server attended the same premises in Amaroo as for Ms Biar. It was empty. Mr Chol was contacted by telephone but was unwilling to provide a current address and terminated the call. After that, the informant made two attempts to contact him by telephone. On 8 April 2024, the informant contacted him but, once again, he expressed a reluctance to give evidence. The only thing that happened after that was that a lawyer from the CDPP left a voicemail for him on 20 May 2024.

36․I am not satisfied that the steps taken to serve Mr Chol satisfy the requirement of “all reasonable steps”. No attempt was made at personal service after 8 March 2024. There is no evidence of any enquiries having been made on any government database so as to identify a new address for him. It is not clear whether he is still in a relationship with Ms Biar. If so, no attempt was made to serve him at the Western Australian address. No request was made to the AFP to provide intelligence relating to his whereabouts or to undertake service of the subpoena.

Linda Hayden

37․Ms Hayden made a statement on 17 April 2018. On 14 November 2023, her availability to give evidence at the trial was confirmed in a telephone call with the informant. On 8 March 2024, a process server attempted to serve her at Edgar’s Inn, a local pub in Ainslie. The evidence does not establish why it was thought she might be there. A male employee and the manager had not heard of her. A voicemail message was left on her phone. On 18 March 2024, the process server called her mobile phone number. She answered. She said that Edgar’s Inn was an old work address. She was told that the reason for contact was because of a matter involving Mr Aguer. She was not familiar with the name. She was told that she was requested to give evidence. She said that she was not prepared to provide her new residential address and was going to speak to her lawyer. The process server confirmed that she was employed by Beryl Women Inc. On 8 April 2024, and 14, 15 and 20 May 2024, four attempts were made by the informant or a lawyer at the CDPP to contact Ms Hayden by telephone. On three occasions, voicemails were left. The lawyer at the CDPP also telephoned the number for Beryl Women Inc, but there was no answer.

38․No other attempt was made to get in contact with Beryl Women Inc, even though the website was searched and an email address available. No other government records were searched in order to locate Ms Hayden’s address or the address of Beryl Women Inc, where she is a worker. The AFP were not requested to assist with the service of the subpoena by either providing intelligence which may assist the informant to arrange service or by undertaking service of the subpoena themselves. It is highly likely that the AFP would have been able to identify the location of Ms Hayden’s place of employment, given that it is a women’s refuge.

Deng Mayen

39․Mr Mayen signed a witness statement on 18 July 2018 at the premises of the Department of Education and Training on Marcus Clarke Street. In April and November 2023, in conversations with the informant, he had expressed reluctance to give evidence. The reasons for that reluctance were not disclosed. A telephone call to him on 15 February 2024 was unsuccessful. A voicemail was left for him on 16 February 2024. On 8 March 2024, a process server attempted service at an address in Cook in the Australian Capital Territory. The property was empty. No contact was made with any occupants or the neighbours. A telephone call made to him was diverted to voicemail and a message left.

40․On 14 March 2024, a phone call by the process server was answered by a female who did not confirm that this was the correct number for Mr Mayen. Telephone calls by the informant on 3 and 5 April 2024 were unanswered. On 8 April 2024, the informant rang the phone number and it was answered by an unknown female. On 20 May 2024, a lawyer from the CDPP telephoned the number and it was answered by an unknown female.

41․I am not satisfied that “all reasonable steps” have been taken to secure the attendance of Mr Mayen. Following the unsuccessful service on 8 March 2024, there is no evidence of searches being made of Commonwealth government records that might identify a new address for him. No attempt was made to engage the assistance of the AFP to either provide intelligence that might allow him to be served or to undertake the service of the subpoena itself.

Conclusion

42․Because I do not consider that the Crown has proved on the balance of probabilities that any of the witnesses are “not available to give evidence” within the meaning of s 65(1) of the Evidence Act, s 65 is not applicable and cannot be relied upon to permit the admission into evidence of the statements in the relevant witness statements. Because of that conclusion, it is not necessary to reach a conclusion on the other matters that were put in issue, namely:

(a)the adequacy of notice;

(b)whether or not the representations were made in circumstances that make it highly probable that they were reliable; or

(c)the operation of s 137 of the Evidence Act.

Ruling

43․The ruling that I make, which is based upon the formulation in the application in proceeding dated 28 May 2024, is:

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.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 17 June 2024