R v Amir Reza Abdolali Sarbandi
[2012] ACTSC 180
•7 December 2012
R v AMIR REZA ABDOLALI SARBANDI
[2012] ACTSC 180 (7 December 2012)
EVIDENCE – Evidentiary matters relating to witnesses – Admissibility – First hand hearsay – Evidence Act 2011 (ACT) s 65 – Whether “all reasonable steps” taken to secure witness attendance – Where witness in Saudi Arabia – Where witness not offered reimbursement for cost of attending – Where no application to take evidence by telephone link – Section 65 threshold not satisfied.
Evidence Act 2011 (ACT), s 65, Dictionary pt 2 s 4
Evidence Act 1995 (NSW), Dictionary pt 2 s 4
Evidence Act 1995 (Cth), Dictionary pt 2 s 4
Foreign Evidence Act 1994 (Cth)
Evidence on Commission Act 1995 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Court Procedures Rules 2006 (ACT), rr 6606, 6703
Caterpillar Inc v John Deere Ltd and Ors(No 2) (2000) 181 ALR 108
Fox v Percy (2003) 214 CLR 118
Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361
Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976
R v Alchin (2006) 200 FLR 204
Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435
Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411
Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598
SCC No. 11 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 7 December 2012
IN THE SUPREME COURT OF THE )
) SCC No. 11 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
AMIR REZA ABDOLALI SARBANDI
ORDER
Judge: Refshauge J
Date: 24 October 2012
Place: Canberra
THE COURT ORDERS THAT:
The evidence of Najla Alqahtani is not admissible.
The trial of the accused, Amir Reza Abdolali Sarbandi, on one count of sexual intercourse with the victim without her consent, being reckless as to whether she was consenting and, in the alternative, one count of committing an act of indecency upon the victim without her consent, knowing that she was not consenting or reckless as to whether she was consenting, commenced on 29 August 2012.
Unfortunately, it then had to be adjourned as the time available from that date was not sufficient to allow the evidence to be completed.
The matter was re-listed to resume on 24 October 2012. When the matter resumed, the Crown applied under s 65 of the Evidence Act 2011 (ACT) (the Evidence Act), to have admitted into evidence a statement taken by police from Najla Alqahtani.
An affidavit in support of the application stated the following:
On 21 April 2011 Ms Najla Alqatahni made a statement to the Australian Federal Police in the matter of Amir Sarbandi;
...
In [sic] 22 May 2012, Detective Senior Constable Thi Ngyuen advised that Ms Alqahtani was not contactable;
On 4 June 2012 Detective Senior Constable Thi Ngyuen advised that checks had been made within immigration which showed that Ms Algahtani [sic] had returned to Saudi Arabia in January 2012;
...
On 21 August 2012, Detective Senior Constable Thi Ngyuen advised that Ms Alqahtani was in Saudi Arabia and would not be available to attend to give evidence on either the 29th or 30th August 2012 [the days on which the trial was listed for hearing];
...
The matter was listed for 24 October 2012 by consent of the parties ...
Ms Alqahtani still resides in Saudi Arabia and is unavailable to attend court on 24 October 2012;
On 22 October 2012 the prosecution enquired by email whether the accused would consent to Ms Alqahtani giving evidence from Saudi Arabia via telephone link-up;
On 23 October 2012 counsel for the accused advised that there was no consent to Ms Alqahtania [sic] giving evidence from Saudi Arabia via telephone link-up;
On 23 October 2012, following the advise [sic] referred to [directly above], the prosecution advised of its intention to make an application to tender the statement of Ms Alqahtani on the basis of her being unavailable to give evidence.
The application came before me and I heard submissions.
THE LEGISLATIVE FRAMEWORK
Under s 65 of the Evidence Act, the hearsay rule does not apply in circumstances set out in that section where it is sought to adduce evidence of a previous representation when the person who made that previous representation is not available to give evidence about it. It is not necessary to set out the circumstances under s 65(2) where such a previous representation, such as the statement made by Ms Alqahtani, might be admitted.
At issue in the application was whether Ms Alqahtani was unavailable.
Section 4 of pt 2 of the Dictionary to the Evidence Act deals with “unavailability of people”. The provision is in the following terms:
(1) For this Act, a person is taken not to be available to give evidence about a fact if –
(a)the person is dead; or
(b)the person is, for any reason other than the application of section 16 (Competence and Compellability – judges and jurors), not competent to give the evidence; or
(c)the person is mentally or physically unable to give the evidence and is not reasonably practicable to overcome that inability; or
(d)it would be unlawful for the person to give the evidence; or
(e)a provision of this Act prohibits the evidence being given; or
(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.
This provision is relevantly identical to s 4 of pt 2 of the Dictionary to the Evidence Act 1995 (NSW), but slightly different to s 4 of pt 2 of the Dictionary to the Evidence Act 1995 (Cth). In both the Evidence Act and the New South Wales Act, sub-s (c) refers to the mental or physical ability of a person to give evidence. That does not appear in the Commonwealth Act. Thus, in both the NSW Act and the Evidence Act, sub-s (f) is equivalent to sub-s (e) of the Commonwealth Act and it is important to bear that in mind when reading cases about these provisions. I shall, in these reasons, refer to the provisions of the EvidenceAct unless otherwise specified.
At issue here is whether Ms Alqahtani will attend to give evidence, that is, whether she is unavailable within the meaning of sub-s (f), not whether she would actually give evidence in the proceedings. That was the issue in R v Alchin (2006) 200 FLR 204. There has been some controversy about the relationship between sub- ss (f) and (g). In Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 at [14]–[18], Hamilton J analysed the relationship between these two sub-sections and held, contrary to the view expressed in some decisions, that sub-s (f) is concerned with steps taken “to find the person” or those taken “to secure the person’s attendance”, the latter being done by, for example, compulsive or coercive process, the simplest example being a subpoena. The purpose of sub-s (g) is to deal with the situation where the attendance of the witness has been secured but it is impossible to obtain the evidence, because, for instance, the witness declines to give it on the ground of privilege or simply refuses to give it, whatever threats are made concerning the consequences arising out of contempt of court. That analysis accords with the approach of Connolly J in R v Alchin.
This case, however, is concerned with securing the attendance of Ms Alqahtani, that is, sub-s (f).
THE PARTIES’ SUBMISSIONS
Ms K Weston-Scheuber, who appeared for the Crown, contended that all reasonable steps had been taken, as set out in the affidavit. She further submitted that since the evidence was not central to the case, the assessment by the Court of what is “reasonable” must be moderated accordingly.
Mr J Lawton, who appeared for Mr Sarbandi, referred me to the decision of Heerey J in the Federal Court of Australia in Caterpillar Inc v John Deere Ltd and Ors(No 2) (2000) 181 ALR 108. His Honour said (at 112; [19]):
The reasonableness of the steps taken by Deere in the present case can be assessed by comparison with a hypothetical example. Let it be assumed that Deere wished to secure the attendance of some other important American witness, but without any preconceptions as to whether or not the witness might be cooperative. It could be expected that Deere would write to the witness asking if he or she would be prepared to come to Australia to give evidence and offering to meet all expenses and compensate for the interruption of his or her business, including payment of professional fees if appropriate. If no response were received, especially where the address was three years old, it might also be expected that Deere US would try to make personal contact with the witness, ascertain whether the witness had changed address or whether there were any impediments such as health or previous commitments, and, if so, try to work out mutually satisfactory arrangements. None of this was done in the present case.
Mr Lawton submitted that there was no evidence to suggest that this approach with appropriate financial arrangements had been offered to Ms Alqahtani to cover her costs and expenses of attending and, if necessary, any fees caused by the requirement to attend in Australia.
For this reason, he submitted, it was not possible to show that all reasonable steps had been taken to secure Ms Alqahtani’s attendance.
Ms Weston-Scheuber very properly advised the Court that there had been no discussions with Ms Alqahtani as to the payment of her costs and expenses. It was in that context that she submitted that “reasonable steps” had to be construed in the light of the significance of the evidence. Mr Lawton did not submit that the evidence was more important than as characterised by Ms Weston-Scheuber.
CONSIDERATION
It might be suggested that what was identified by Heerey J as necessary put a high bar for an applicant for an order under s 65 to surmount. Nevertheless, the approach has been approved in a number of cases: Mindshare Communications Ltd v Orleans Investments Pty Ltd (at [17]), Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435 at [12].
In any event, it seems to me that the need to meet the expenses of a witness is central to the question of securing their attendance. Even where a person is amenable to a subpoena, r 6606 of the Court Procedures Rules 2006 (ACT) provides that the addressee in a subpoena, that is the person to be served with the subpoena and whose evidence is required, need not comply with the requirements of the subpoena to attend and give evidence unless conduct money has been handed to him or her or tendered a reasonable time before the date when the evidence is to be given.
I was not asked to assume that Ms Alqahtani would have understood that her costs would be paid. I would not, in any event, be prepared to make that assumption. I have no idea, for example, whether Ms Alqahtani has a relevant understanding of Australian law such as to enable me to assume she would have had that knowledge.
Further, it would seem to me that it would be necessary to have a much clearer factual basis for making that assumption than is present in this case. Indeed, it may be that such an assumption could only be made in special or exceptional circumstances. It is not relevant here.
The issue of giving evidence by telephone link
Although not particularly pressed by Ms Weston-Scheuber, it seemed to me that I needed to consider the issue of the offer to have Ms Alqahtani give evidence by telephone. I note that this was not an offer to give evidence by video-link. It is not uncommon in civil proceedings, particularly personal injuries proceedings, for medical experts to give evidence by telephone. In those cases, the issue of credibility is, perhaps, somewhat different to the issue of credibility of witnesses to facts in issue as opposed to expert opinion. As Heydon, Crennan and Bell JJ said in Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361 at 387; [69], “[j]udges are entitled to take into account the demeanour of party-witnesses, not only in the witness box, but while they enter and leave it”.
I am aware, of course, of the observation of Atkin LJ in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152:
I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison evidence with known facts, is worth pounds of demeanour.
See also Fox v Percy (2003) 214 CLR 118 at 129; [30].
Nevertheless, there is provision in this jurisdiction for evidence to be given by electronic communication. Thus, r 6703 of the Court Procedures Rules provides:
(1)The court may receive evidence or submissions by telephone, video link or another form of communication in a proceeding.
(2)The court may, by order, impose conditions for subrule (1).
This rule applies to criminal proceedings: r 6000.
In this case, however, no application was made for evidence to be given in this way. As noted above (at [4]), Mr Sarbandi’s counsel indicated that consent was not given. No application was made for me to consider that.
Would this have sufficed?
The issue has been considered. In Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598, Barrett J there considered, amongst other things, whether the relevant provision (the equivalent of sub-s (f) which his Honour described as
“clause 4(1)(e)”) applied to evidence taken under provisions such as the Foreign Evidence Act 1994 (Cth) or the Evidence on Commission Act 1995 (NSW).
His Honour, however, also considered whether evidence taken by video link (in that case under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)), would apply. His Honour said (at 601; [13] and 605; [24]–[25]):
13.There is immediately a question as to the meaning of ‘attendance’. In a context such as the present where cl 4(1)(e) is applied in answering the question posed by s 63(1), it is, to my mind, clear that the relevant form of ‘attendance’ is that which puts the person into position to give evidence to the court. The words ‘secure his or her attendance’ in cl 4(1)(e) must, in the context, refer to such form of attendance as will allow the person in question to do that with which s 63(1) is concerned, that is, ‘to give evidence’. In the ordinary course, this will involve the person’s physical presence in the courtroom in which the relevant proceeding is being conducted (or, as it is put by s 36(1) of the Evidence Act, presence ‘at the hearing of’ the proceeding).
...
24.In a case such as the present arising under s 63 of the Evidence Act, the ‘attendance’ referred to in cl 4(1)(e) of the dictionary (being, of its very nature, attendance ‘to give evidence’) is attendance by way of physical presence in the courtroom or other place in which the relevant proceeding is being conducted, with that courtroom or other place understood as encompassing any remote location deemed by the Evidence (Audio and Audio Visual Links) Act to be included in it. A person for the time being in a foreign country, although not physically present in the place where the court is sitting, may be relevantly in ‘attendance’ by means of a link of the kind with which the Evidence (Audio and Audio Visual Links) Act is concerned. ...
25.It follows that when the extent of the ‘steps’ taken by a party to ‘secure’ a person’s ‘attendance’ is under consideration for the purposes of cl 4(1)(e), attention will be directed only to steps which, if taken, will or might cause the person to be physically present in the courtroom or other place in which the court is sitting or to attend at a location from which an audio or audio visual link can be established. Steps that will or might cause the person to be in a place for the purpose of being examined pursuant to the Evidence on Commission Act are not relevant to the inquiry; nor are steps that will or might cause a record of such an examination to be available for tender by a party to the proceedings. The inquiry is concerned with steps to secure a person’s physical presence, not steps to secure statements from the person with a view to tendering them.
See also Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411.
All reasonable steps were not taken
No application having been made for the evidence of Ms Alqahtani to be taken via telephone link, it seems to me that it cannot be said that “all reasonable steps” had been taken. When combined with the failure to offer Ms Alqahtani reasonable costs and expenses of attending in person, it was clear that the obligation under the Evidence Act had not been met and, accordingly, I refused the application.
I said that I would publish my reasons in due course. These are my reasons.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 7 December 2012
Counsel for the Crown: Ms K Weston-Scheiber
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr J Lawton
Solicitor for the defendant: Legal Aid ACT
Date of hearing: 24 October 2012
Date of judgment: 7 December 2012
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