R v Chambour; R v Khallouf (No 3)

Case •

[2016] NSWDC 262

•

29 September 2016

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Chambour; R v Khallouf (No 3) [2016] NSWDC 262
Hearing dates:29 September 2016
Date of orders: 29 September 2016
Decision date: 29 September 2016
Jurisdiction:Criminal
Before: Neilson DCJ
Decision:

Application pursuant to s 67 of the Evidence Act 1995 refused

Warrant issued pursuant to s 194(1)(b) of the Evidence Act 1995 for the arrest of Christopher James Pattison requiring his attendance to give evidence
Catchwords:

CRIMINAL LAW – Practice and procedure – Subpoena to give evidence – Form of – Whether Supreme Court Rules Pt 75 apply to proceedings in the District Court – Whether Supreme Court Prescribed Form 74AC must be used in the District Court – Whether District Court Act 1973 section 171D mandates use in the District Court of Supreme Court Form 74AC

CRIMINAL LAW – Practice and procedure – Mode of service of subpoena – Whether delivery of a subpoena to the postal box of witness adequate under District Court Rules Pt 53 r 19

EVIDENCE – Evidence Act 1995, s 67 – Whether witness unavailable – Whether Crown can prove unavailability where no attempt made to enforce a subpoena which had been served

ALTERNATIVE RELIEF – When finding not made that witness unavailable, application for issue of warrant under Evidence Act 1995 s 194(1)(b)
Legislation Cited: Civil Procedure Act 2005
Criminal Procedure Act 1986
District Court Act 1973
Evidence Act 1995
Justices Act 1902
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Category:Procedural and other rulings
Parties: Director of Public Prosecutions (NSW) (Crown)
George Chambour (Accused)
Youssef Khallouf (Accused)
Representation:

Counsel:
Ms R Rodger (Crown)
Mr B Vasic (Accused Chambour)
Ms A Francis (Accused Khallouf)

  Solicitors:
Solicitor for the Director of Public Prosecutions (NSW) (Crown)
Elie Rahme & Associates (Accused Chambour)
Barakat Lawyers (Accused Khallouf)
File Number(s):2013/271652; 2013/271657
Publication restriction:No

ruling under s 67 regarding christopher pattison

  1. HIS HONOUR: There are currently before me four applications under s 67 of the Evidence Act 1995. The application is to adduce firsthand hearsay from witnesses who are alleged to be not available. The first allegedly unavailable witness is Mr Christopher James Pattison. The second allegedly unavailable witness is Mr Isaac Parry. The third allegedly unavailable witness is Mr Durrant Brown, and the fourth allegedly unavailable witness is Mr Thomas Crossling. From my first evidentiary ruling it ought be clear that the four witnesses were part of the first group of people which interacted with the second group of people at the Opera Bar and the car park of the Sydney Opera House in the early hours of Sunday, 8 September 2013.

  2. The Crown has attempted to serve each of the four gentlemen in question with a subpoena to give evidence. An issue arose in argument yesterday about the adequacy and propriety of the documents which the Crown has sought to serve upon each of the four “missing” witnesses. The argument concerning the form of the subpoena has taken some considerable time. The subpoenas in question were issued by an officer of the DPP. The form of the subpoena is an historic one, but its exact providence has not been ascertained by me or indeed by any of the parties before me. I have attached a copy of the subpoena issued in relation to Chris Pattison, which forms part of exhibit W10, to these reasons: (Subpoena Chris Pattison 190916 (18.8 KB, pdf)). That form is one that I dealt with on 26 September 2016.

  3. Mr Vasic, who appears for the accused George Chambour, initially raised an objection to this subpoena on the basis that it did not contain the witness’s address. He submitted that the document ought contain the witness’s address as the address was required by the “prescribed form”. He submitted that the prescribed form was Form 74AC of the forms issued under the Supreme Court Rules. That gave rise to a submission that the Supreme Court Rules were applicable to criminal litigation in this Court. The argument was this. Schedule 3 the Supreme Court Act 1970 is headed, “Criminal Proceedings”. It contains paragraphs numbered between (a) and (i). Paragraphs numbered (a1) and (a2) are these:

“(a1)

proceedings (Including committal proceedings) for the prosecution of offenders on indictment (“indictment”) including any information presented or filed as provided by law for the prosecution of offenders in the Court or in the District Court,

(a2)

proceedings (whether in the Court or the District Court) under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986,”.

Part 75 of the Supreme Court Rules is headed, “CRIMINAL PROCEEDINGS”. It is divided into two Divisions. The Division 1 is headed “General” and Division 2 is headed “Summary jurisdiction”. The relevant rules are these:

“1 Application

Subject to section 17 of the Act and except as provided in this Part, the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule to the Act.

1A Criminal Appeal Rules

The Criminal Appeal Rules remain in force.

2 Rules Applicable

The following provisions of these rules apply, so far as applicable, to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies:

(a) Part 1 (preliminary matters), other than Part 1 rule 11(3),

(b) Part 1A (sittings and vacations),

(c) Part 2 (time),

(d) Part 55 (procedure for punishment for contempt),

(e) Part 61 rules 1(4), (5) and (6), 2 and 3 (registrars),

(f) Schedule F, forms 74AA, 74AB, 74AC and 74AD (subpoenas),

(g) clause 1 or the matter relating to the Jury Act 1977 in Schedule J.”

Part 75 3 makes provision for the applicability of certain of the Uniform Civil Procedure Rules to criminal proceedings. Rule 3AA provides that the forms approved by the Uniform Rules Committee are not to be used in criminal proceedings. The rest of the rules in Division 1 are not relevant to the current application. Mr Vasic submitted that because of the provisions of the Third Schedule these Supreme Court Rules are applicable to the proceedings in this Court. I cannot accede to that submission.

  1. The Third Schedule to the Supreme Court Act 1970 as originally enacted was headed “Excluded Criminal Proceedings”. The current heading is “Criminal Proceedings”, but when the change was made has not been ascertained and is currently irrelevant. The current par (a) is the original par (a) and was immediately succeeded by the current par (b) which refers to gaol delivery. The Third Schedule has been amended from time-to-time. However, it is important to realise how the Third Schedule came to be enacted. Section 17 of the Supreme Court Act in its current form is this:

“(1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.

(2) Rules may be made under this Act:

(a) for regulating and prescribing the practice and procedure of the Court, and

(b) without limiting the generality of paragraph (a), for:

(i) providing for the regulation of the sittings and order of business of the Court and the regulation of the vacations and holidays to be observed by the Court and in the offices of the Court, and

(ii) prescribing the duties and functions of the Prothonotary and other officers of the Court and the records to be kept by them,

in relation to any of the proceedings in the Court which are specified in the Third Schedule.

(2A) The provisions of this Act, including Part 9 (subsections (1) and (4) of section 124 excepted), apply in relation to rules made pursuant to subsection (2) as they apply in relation to other rules.

(3) Subsection (1) does not affect the operation of sections 1, 2, 5, 6, 7, 41, 53, 54, 55, 72, 101 (5) and 130.”

It is clear that s 17 has been amended over the years since its enactment, but it is clear that, as originally enacted, it was to exclude from the operation of the Supreme Court Act, and the rules made under the Supreme Court Act, criminal proceedings. Section 17(2) then goes on to provide a special rule-making power for criminal proceedings. When Pt 75 of the Supreme Court Rules was enacted, there was no reference in the Third Schedule of the Supreme Court Act to the District Court at all, as I am about to seek to show. Therefore, when the Supreme Court Rules concerning criminal proceedings were enacted, and enacted they were by being a Schedule to the Supreme Court Act 1970 which could be amended by the Rules Committee of the Supreme Court, they dealt with criminal matters heard in the Supreme Court, and in the Supreme Court only.

  1. One will note that on any proper reading of s 17(2) of the Supreme Court Act 1970 that it permits the Supreme Court to make rules for regulating and prescribing the practice and procedure of the Supreme Court in respect of its criminal jurisdiction, but it does not give the Supreme Court Rules Committee power to make rules regarding the practice and procedure of this Court.

  2. The Third Schedule of the Supreme Court Act 1970 was amended by Act 250 of 1987 which received the Royal Assent on 16 December 1987 and came into force on 18 December 1987. That amended the original par (a) of the Third Schedule to read thus:

“Proceedings in the Court that are for, or that relate to proceedings in the District Court for the prosecution of offenders on indictment (“indictment” including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted.”

The same Act also inserted a new paragraph (a1) which was in the following terms:

“proceedings in the Court –

(i) under the provisions of s 51A of the Justices Act 1902; or

(ii) relating to proceedings in the District Court under those    provisions:”

The short title of that Act was “Supreme Court (Appeals) Amendment Act 1987”. The long title of the Act was this:

“An Act to amend the Supreme Court Act 1970 to exclude an application to appeal to the Court of Appeal from the District Court where such an application or appeal would not lie on the same matter arising in the Supreme Court.”

The reason for the amendment is clear. It was to exclude appeals from this Court exercising its criminal jurisdiction to the Court of Appeal. It did so by including criminal proceedings in this Court in the definition of excluded criminal proceedings contained in Sch 3.

  1. The Schedule was further amended by Act 20 of 1988. That amendment returned par (a) of the Third Schedule to its original form and omitted par (a1) and inserted two new paragraphs:

“(a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment (‘indictment’ including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court;

(a2) proceedings (whether in the Court or the District Court) under section 51A of the Justices Act 1902.”

The Third Schedule was further amended by Act number 121 of 2001 when reference to s 51A of the Justices Act 1902 was replaced with a reference to Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986.

  1. The purpose of Schedule 3 was to exclude certain proceedings from the general jurisdiction of the Supreme Court and, in particular, the Court of Appeal and to set up a special regime for criminal proceedings, a special set of criminal procedure rules. Initially there was no reference in the Third Schedule to the District Court and hence it was a convenient means of referring to criminal proceedings by referring to matters in the Third Schedule. When the Third Schedule was amended to exclude certain criminal proceedings in this Court, the draftsmen neglected to modify Schedule 3, as used in SCR Part 75 to apply only proceedings in the Supreme Court, but one must read it down in such fashion because the Supreme Court does not have power under s 17(2) to prescribe the practice and procedure of this Court in its criminal jurisdiction. Therefore, by reason of the Supreme Court Rules Form 74AC, the form of subpoena to give evidence in criminal proceedings prescribed by the Supreme Court Rules, is not applicable in this Court.

  2. Mr Vasic, however, then argued that the District Court Act 1973 mandated the use of the same form. Section 171 of the District Court Act 1973 relates to criminal procedure rules and permits the Rule Committee of this Court to make rules regulating the practice and procedure of this Court in its criminal jurisdiction. Section 171 is lengthy and I shall not repeat it but it is clear that it was intended to give this Court a very wide rulemaking power. However the Act also includes s 171D. That section is this:

“Practice and procedure of Supreme Court to be followed unless other provision made.”

Subject to this Act and the rules, the procedure and practice of the District Court when exercising its criminal jurisdiction shall, as far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction.”

Section 171D was inserted by Act 170 of 1984 and came into force on 1 July 1985. It was perhaps enacted to fill any lacuna in the provisions of the Rules of this Court relating to criminal practice and procedure.

  1. I have had cause to consider the Rules of this Court as they were prior to the commencement of the Civil Procedure Act2005 and the UCPR, Part 53 of the District Court Rules did not make any provision as to the form of subpoena to be used or any other relevant matter except that the issuing of subpoenas was governed by Pt 53 r 8 which was repealed in 2007. Since the passage of the Uniform Civil Procedure Rules, DCR Pt 53 r 18 to 25 were gazetted at the same time that the r 8 was repealed. Again, no form of subpoena has been prescribed by the rules or by any practice note issued by the Chief Judge. As far as I can ascertain no form of subpoena to give evidence has ever been prescribed under the District Court Act and Rules and hence one might think the origin of the “historic form” which I set out at the commencement of these reasons.

  2. However, Mr Vasic’s point is that because of s 171D it is appropriate, in fact, mandatory that the form prescribed under the Supreme Court Rules be used in the District Court. With that submission I cannot agree. A general provision that subject to the District Court Act 1973 and any rules made under s 171 of that Act the practice and procedure of the District Court when exercising its criminal jurisdiction should be the same as the procedure and practice of the Supreme Court does not mean that the forms prescribed in the Supreme Court must be used in this Court. Section 171D contains the words “so far as practicable”, thereby indicating that the practice and procedure of the Supreme Court ought be followed where it can practicably be done. A direction to follow the practice and the procedure of the Supreme Court is not, in my view, a mandatory direction that the same forms used in the Supreme Court be used in this Court. The real question, if there be a question, is whether the form used is adequate to convey the same direction the addressee of the subpoena as the form that is currently prescribed by the Supreme Court.

  3. Clearly the form of subpoena used by the DPP invokes the jurisdiction of this Court, although it has been many, many years since the Criminal Jurisdiction of this Court was called the “Criminal and Special Jurisdiction” of the Court. The document is headed “Subpoena to give evidence” and most lay men and women in Australia have heard of the word “subpoena”. The form of subpoena “requires” the addressee to attend court for the purpose of giving evidence. The word “requires” was long used in subpoenas to give evidence. It specifies when and where the witness must attend court and requires him to attend court each day until either excused or to the completion of the matter, and importantly tells the addressee that if he does not comply with the subpoena is liable to be arrested. The only differences between the form used by the DPP and Form 74 AC under the Supreme Court Rules is the notation that if the subpoena is issued “at the request” of a solicitor for the DPP the subpoena should be endorsed: “If you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed”. It can be found from many sources that in criminal proceedings the Crown is not required to pay conduct money. The Crown may be liable to pay witnesses’ expenses, but witnesses’ expenses are payable after they are incurred, whereas conduct money must be paid in advance. The other notation that the form used by the DPP does not contain is that being excused from compliance with one subpoena does not excuse the addressee from complying with another subpoena, but there is no suggestion in the current matter that any witness has been served with a subpoena by any other party and logic dictates that strictly such is not necessary, although it might be very prudent to endorse such a notation.

  4. The other differences between the form used by the DPP and form 74AC are the advice that the addressee does not need to comply with the subpoena if the party who requested it has excused the addressee from compliance, and the advice that the addressee may be advised in writing or orally that he can attend Court at a time later than that specified in the subpoena. These endorsements may make compliance of the subpoena less onerous but they do not affect the validity of the subpoena. They modify the strictness of compliance with the subpoena but do not, in my view, affect the validity of the subpoena itself.

  5. The learned Crown Prosecutor drew my attention to s 171(5) of the District Court Act, 1973. I have already stated that s 171 gives the Rules Committee of this Court, an extensive rule-making power in respect of criminal proceedings. Subsection (5) is in these terms:

“(5) Despite any other provision of this Act, the provisions of Part 3 of the Chapter 4 of the Criminal Procedure Act 1986 and any rules under that Part apply to proceedings in the Court in its criminal jurisdiction.

The relevant sections of the Criminal Procedure Act 1986 are those between s 220 and 232. Section 171(5) came into force on 29 November 2006. The important point to note is that s 222(2) of the Criminal Procedure Act 1986 provides:

“If the prosecutor in proceedings is a public officer or a police officer, the officer may, subject to and in accordance with the rules, issue any such subpoena. The subpoena is to be filed and served in accordance with the rules.”

In other words, the DPP, as a public officer, is entitled to issue subpoenas which otherwise would be issued by the Registrar of the Court. There is a provision in the Rules concerning filing of a subpoena. However, that rule does not actually require filing. In Pt 53 r 19 is this:

“A party that issues a subpoena must, if required to do so by the Court, make a copy available for filing on the return date of the subpoena.”

I am unaware of any general direction or indeed any practice applicable in this Court requiring the DPP to file copies of subpoenas. However, it would appear to me that, in a particular case, the Court might do so if there were any dispute about, for example, the issuing of a subpoena or the form of a subpoena.

  1. As pointed out by the learned Crown Prosecutor, s 224 of the Criminal Procedure Act 1986 in essence does not require the issue of conduct money with a subpoena issued by a prosecutor and s 227 permits a subpoena to be set aside by the addressee of the subpoena. That provision was pointed to by the learned Crown Prosecutor because Mr Vasic’s client, Mr Chambour, was not the addressee of the subpoena in question. Before the learned Crown Prosecutor drew that to my attention I had already pointed out that the only person who could move to set aside a subpoena is the person to whom the subpoena is addressed. However, Mr Vasic is quite entitled to point to any irregularity and to argue that the Court must take that into account in deciding whether there has been, that which is very important in the current proceedings, proof of the unavailability of the alleged “missing” witnesses.

  1. Part 2 of the Dictionary attached to the Evidence Act states this about the “Unavailability of persons”.

“(1)   For the purposes of 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 s 16 (Competence and vompellability: judges and jurors), not competent to give the evidence, or

(c) the person is mentally or physically unable to give the evidence and it 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 secure his or her 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.”

I turn then to the evidence concerning each of the allegedly missing witnesses. The first allegedly missing witness is Mr Christopher james Pattison.

  1. Exhibit W11 establishes the residential address of Mr Pattison at a home unit in a specified street in a Sydney suburb which I will identify merely as PH. That has been the residential address of Mr Pattison since 23 August 2016 according to the records of Roads and Maritime Services. For that organ of government to record that as being his residential address that address must have been communicated to the RMS by Mr Pattison. Exhibit W10 is an affidavit of a police officer, Cons. Housam Khatib, who affirmed that he personally served a true copy of a subpoena upon Mr Pattison at that address. The subpoena has been dated 19 September 2016 by the issuer and was returnable on Wednesday 28 September 2016. Mr Pattison was called outside the Court but did not appear. The affidavit was affirmed on 20 September 2016 and one could infer, therefore, that the subpoena was served by Cons. Khatib on 20 September 2016. Unfortunately Cons. Khatib is not available as he has gone on six weeks’ leave. There is some doubt however as to whether, despite what the affidavit says, Cons Khatib personally served Mr Pattison, or merely left it in Mr Pattison’s letterbox.

  2. Exhibit W12 is a New South Wales electoral roll enquiry concerning Mr Christopher Pattison. That gives as his address a former address that he had prior to 23 August 2016, and that can be shown on the unredacted copy of exhibit W11. However, it means that it is talking about the same person. Exhibit W13 are enquiries made of the Department of Immigration and Border Protection. They show that Mr Pattison has been, since 12 August 2016, in Sydney, and the immigration records further tell me that, as at 29 September 2016, he was still “onshore”, meaning that he had not departed from Australia.

  3. At the request of the prosecutor I issued a subpoena to give evidence in the “historic form”, signed it, and placed on it the seal of this Court, and an attempt was made to serve the subpoena on Mr Pattison on the evening of 26 September 2016, when, I am told, that attempt was unsuccessful. I was told by the learned Crown Prosecutor that there was no one at home when the subpoena sealed on 26 September 2016 was sought to be served on Mr Pattison at his residential address.

  4. There is some further information concerning Mr Pattison that is important. The officer in charge of the current prosecution is Detective Senior Constable Sarah Thomsen. Her statement of 15 September 2016, part of exhibit W5, says this:

“On Monday 6 September 2016 I obtained Pattison’s contact phone number. At midday on Tuesday 7 September 2016 I contacted Pattison on a telephone. He informed he had no intention of intending court and assisting police. He said ‘I don’t want to bring up stuff from the past.’ Later that day I received a subpoena from Sam Flint to be served on Christopher Pattison.

On Wednesday 8 September 2016 I conducted an RMS check on Christopher Pattison. I obtained his most recent address. I created a General Station Pad message and sent it through to Bankstown police station along with a copy of the subpoena. I requested that it be served on Pattison.

We received notification that police attended the location on 10 September and we were informed Pattison was in Queensland and he would not be returning until the evening of Sunday 11 September. Police were allocated to attend his address on Monday 12 September but were unsuccessful.

I attended his location at 10.20am on Wednesday 14 September 2016. A male by the name of Jamie answered the door and told me that Pattison was at work. He did not disclose where his workplace was. I left a business card and requested Jamie to tell Pattison to contact me as a matter of urgency.

To date [15 September 2016] Christopher Pattison has not made contact.”

Exhibit W5 contains a further statement from Detective Senior Constable Thomsen which contains this matter:

“[7] On Tuesday 20 September 2016 I contacted Senior Constable Stone at Bankstown police station. I requested that he [have] a car crew attend the address of Christopher at [PH]. I informed him that we had conducted an electoral roll check and a RMS check to confirm his address and that the subpoena could be placed in his letterbox. On the morning on Wednesday 21 September 2016 I received a signed Affidavit of Service from Constable Katib informing me that he had served that subpoena.”

The last paragraph is important because it indicates that, although the affidavit of service of Constable Katib suggests personal service, it may well be that the subpoena was merely left in Christopher Pattison’s letterbox. The other important thing to note is that it is clear from the telephone discussion recited Detective Senior Constable Thomsen that Christopher Pattison knew that the police were seeking to have him attend Court.

  1. It is unfortunate that Detective Senior Constable Thomsen did not leave the subpoena with ‘Jamie’ who appeared to be living at the same address as Pattison at 14 September 2016. Further, and unfortunately, the District Court Rules Pt 53 r 20 does not permit service of a natural person by leaving the subpoena at the person’s residence with a person who appears to be a resident of that same place and appears to be over the age of 16 years.

  2. A problem with the subpoena that has been left by the police in Christopher Pattison’s letterbox is that it is arguable that that does not comply with Pt 53, r 20, (2)(e). Part 53, r 20(1) provides that a subpoena ‘must’ be served on the person named, that is the addressee, in accordance with that rule. Subrule (2) describes modes of service but uses the word ‘may’ which suggests permission rather than necessity, i.e. the word ‘may’ usually indicates a permissive way of doing things, not a mandatory way of doing things. The distinction between ‘must’ in subrule (1) and ‘may’ in subrule (2) is, in my view, remarkable. Paragraph (e) of subrule (2) is this:

“If the person is not a police officer or a public officer, by sending it by post or facsimile to the person’s residential address.”

The question is, does a police officer leaving an item in a postbox amount to sending it by post? The usual mode of sending a document by post is by putting it in a pre-paid and addressed envelope, with the requisite stamps and putting it in a postbox, in the pious expectation that it will be delivered to the addressee. An affidavit of service would then attest to the posting of the subpoena and not to its actually being placed in the letterbox of the addressee. The rules are our servants, not our masters. A police officer who can attest to placing a subpoena in a letterbox is a better form of proof of service than merely proving the posting of a document in the normal course of post. Accordingly, I hold that the placing of a subpoena in an addressee’s postal box by a member of the police force is the equivalent of sending it by post to the addressee in the normal course of post. If service by post is good service, which it is under Pt 53, r 20 (2)(e), than what was done to serve Christopher Pattison was, in my view, good service.

  1. The question then becomes, as far as Mr Christopher Pattison is concerned, whether all reasonable steps have been taken by the Crown to find him or secure his attendance, but without success. I know he is in Australia, I know he is resident in a suburb of Sydney. I know he works locally. What has the Crown done to secure his attendance? The Crown has left a subpoena in his postbox and he has not obeyed it. The Crown has not asked me to issue a warrant for his arrest.

  2. In my view this is not a question of unavailability within (1) (f) of the definition of “Unavailability of persons” contained in the Dictionary to the Evidence Act but this is a question of unavailability within par (g) of the same provision. The question is whether all reasonable steps have been taken by the Crown to compel him to give evidence but without success. The Crown has not asked me to issue a warrant for his arrest and no-one has sought to serve any warrant on him. Accordingly I cannot be satisfied that Mr Christopher Pattison is unavailable and the application under s 67 is accordingly refused.

[FURTHER APPLICATION AND SUBMISSIONS]

  1. HIS HONOUR: For those same reasons I order that a warrant issue for the arrest of Christopher James Pattison requiring his attendance before this Court to give evidence. I order that the warrant not be served prior to 6.00 am on Tuesday 4 October 2016. That warrant issues under s 194(1)(b) of the Evidence Act 1995.

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Decision last updated: 24 October 2016

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