R v Chambour; R v Khallouf (No 4)

[2016] NSWDC 263

District Court

New South Wales

Medium Neutral Citation:	R v Chambour; R v Khallouf (No 4) [2016] NSWDC 263
Hearing dates:	30 September 2016
Date of orders:	30 September 2016
Decision date:	30 September 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Pursuant to s 194(1)(b) of the Evidence Act 1995, warrant issued for the arrest of Isaac Parry
Catchwords:	CRIMINAL LAW – Practice and Procedure – Subpoenas – Whether requirement to endorse address of person to be served with subpoena is complied with by stating a person’s address as “care of the Officer in Charge” and giving details of that person
Legislation Cited:	Evidence Act 1995
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 section 67 regarding isaac parry

1. HIS HONOUR: Prior to adjourning yesterday afternoon I made a ruling concerning the Crown’s application under s 67 of the Evidence Act 1995 concerning evidence that might be given by Mr Christopher James Pattison. I refused the Crown’s application, but at the Crown’s request, issued a warrant for the arrest of Christopher James Pattison.

2. This morning I had intended to make rulings in respect of three other “missing” witnesses, about whom the Crown also made applications under s 67 of the Evidence Act 1995. However, an exhibit tendered this morning, exhibit W25, tells me that Mr Christopher James Pattison is now “off shore”, that is, beyond the seas, and that witnesses Durrant Brown and Thomas James Crossling are also “off shore” meaning beyond the seas, outside the Commonwealth of Australia. However, it is not known at the current time for how long it is anticipated the witnesses who are now “off shore” might remain so.

3. The Crown is seeking to obtain such evidence and hopes to put it before me next Tuesday morning, after the coming long weekend. However it is still open to me to make a ruling about the Crown’s application under s 67 of the Evidence Act 1995 in respect of Mr Isaac Parry who is, according to exhibit W25, “on shore”.

4. Exhibit W5 contains two statements of Detective Senior Constable Sarah Thomsen. In the first of those statements, that of 15 September 2016, the Detective Senior Constable said this about Isaac Parry:

“On Saturday 6 August, I contacted Isaac Parry on the number that he provided to police when giving his statement on 11 September 2013. The number has since been disconnected. I checked the computerised operation policing system (COPS) and obtained his most recent address, being the same address as Thomas Crossling and Durrant Brown.

On the morning of Sunday 28 August 2016 Detective Senior Constable Alex Moffat attended the last known address of Isaac Parry. There were no persons home.

On Thursday 1 September 2016, the subpoena and statement were emailed to Senior Constable Larissa Felgate at Sutherland Police Station and a request was made to serve the subpoena. The following week I received in the internal post a service document from Senior Constable Felgate informing me that she had served the subpoena and statement on Parry via post to the known address, this notice was dated 01/09/2016.

On 13 September 2016, I conducted an RMS check on the address of Isaac Parry. I found that with the RMS, he had a new registered address. Also, on the same day, I submitted a request through the OIA for the registered voting address of Isaac Parry with the NSW Electoral Roll.

At 12.15pm on Wednesday 14 September 2016, I attended the address of Isaac Parry. It was a secure building and I rang the buzzer for his unit twice. No person answered the buzzer.

At 1.30pm on the same day I received a response from the OIA. The NSW Electoral Roll registered address for Isaac matched the address I had attended earlier in the day.

To date, Isaac Parry has not made contact with me.”

I should point out that I interpret the first paragraph of that part of the Detective Senior Constable’s statement as meaning that she attempted to contact Isaac Parry on a telephone number which had been disconnected.

5. This statement merely states that only one attempt had been made to contact Mr Parry at his current residential address, but that was in the middle of a working day when one would not expect most people to be at home.

6. Detective Senior Constable Thomsen’s second statement, which is also part of exhibit W5, is dated 21 September 2016. About Mr Isaac Parry it says this:

“On Tuesday 20 September 2016, I contacted Detective Sergeant Langthorne at Surry Hills Police Station and requested that he serve the subpoena for Isaac by placing it in his letter box. I informed him that I had conducted the electoral roll check and an RMS check to confirm the address as [a specified home unit at a specified street address in a specified street in a Sydney suburb which I will refer to merely as WL]. Later the same day I received an email from Detective Sergeant Langthorne informing me that the subpoena had been served. He attached the affidavit of service to the email.”

Exhibit W20 is a notice of the attempt to serve Mr Parry at his previous address, that is the same address as Thomas Crossling and Durrant Brown, that subpoena having been issued on 26 July 2016 on behalf of the prosecutor and returnable on Monday 19 September 2016. It is essentially irrelevant but does prove some attempt by the Crown to obtain the attendance of Mr Parry at Court. Exhibit W23 is the result of the RMS inquiry made by Detective Senior Constable Thomsen. That shows that the address of Isaac Parry has been since 5 August 2014 in the place in WL to which I have earlier referred. Prior to that time his address was the same as that of Thomas Crossling and Durrant Brown. Exhibit W24 is the electoral roll inquiry which gives the address of Mr Parry the same as being that in WL to which I have earlier referred.

7. Exhibit 21 is an affidavit of a member of the police force, Winston Knight Langthorne, which annexures a subpoena to give evidence issued by the prosecutor on 19 September 2016 returnable on Wednesday 28 September 2016. The affidavit attests to personal service of Mr Parry on 20 September 2016. However exhibit W22 is a further affidavit of Winston Knight Langthorne in essence telling me that service effected on 20 September 2016 was not personal service but in fact it was service by placing the subpoena in the letterbox of Mr Parry at the address in WL. I accept, therefore, that on the 20 September 2016 police placed in Mr Parry’s post box at his current residential address a subpoena returnable on the 28 September 2016. When Mr Parry was called three times outside the court on that day there is no appearance by him.

8. Yesterday in relation to Christopher James Pattison I pointed out that the service effected in the present matter by Constable Langthorne was as good as and better than proving service by placing the subpoena in the ordinary course of the post. I accept that the Crown has drawn the attention of Mr Parry to the requirement to attend court, and that requirement ought to have been satisfied by him last Wednesday.

9. Again the issue before me at the current time is not to seek to enforce the subpoena but to establish that he is unavailable. The Crown seeks to prove that Mr Parry is not available to give evidence because all reasonable steps have been taken by the Crown to find him or to secure his attendance at court but without success. I accept that Mr Parry has been “found” however I do not accept that the Crown has taken all reasonable steps to secure his attendance. The Crown has not sought to enforce the subpoena. Again, as I held when discussing Mr Christopher James Pattison this appears not to be a case within clause (1)(f) the definition of “Unavailability of persons” contained in Part 2 of the Dictionary to the Evidence Act but rather a case which appears in my view to fall within par (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. The Crown not having sought the issue of a warrant for the arrest of the witness, I cannot find that the Crown has taken all reasonable steps as required by par (g) of the definition. For those reasons the application under s 67 is at this time refused.

10. I should at this stage address one issue that was raised by Mr Vasic on behalf of the accused, George Chambour. That objection was that the prescribed Form 74AC, a Supreme Court form applicable to proceedings in the Supreme Court requires the giving of the address of the addressee of the subpoena, but the subpoenas in the current matter are all “defective” because they give as the address of each of the witnesses whom it has been sought to serve with the subpoena the following matter by way of address: “C/- OIC Det S Thomsen, City Central Police Station, 192 Day Street, Sydney, NSW, 2000”. In other words the only address given for each of the addressees of the subpoenas is care of the officer-in-charge of the police case.

11. No form or rule to which I have been taken requires the provision of a residential address nor the provision of a business address or the provision of the usual place of work of the addressee. It is also trite that a subpoena can be served upon a person at any time or any place, saving, of course, the prohibition of serving process in the precincts of the Court, and as I understand the prohibition of serving process on a Sunday has now been repealed. It appears to me that the purpose of an address is to identify the addressee, not to tie the addressee down to an address at which he is to be served. Besides having the practical effect of identifying the addressee of the subpoena the address on the subpoena has the practical effect of directing the process server, whoever that might be, to where it is thought the person addressed in the subpoena might be found. That is entirely pragmatic. That pragmatism is resolved when the address of the person to be served is known to the police and the police intend to serve that person. In modern times we have become very protective of the personal information of members of the public, very protective of their privacy. Necessary court process is a public document and the disclosure of the address of some witnesses, particularly in criminal proceedings, is often thought to be oppressive, having the potential to cause harm to the addressee if his or her usual place of residence became known to others.

12. In the circumstances I reject the submission that the subpoena is defective because it is addressed to the addressee care of the officer-in-charge in the NSW Police. I would also add the observation that insofar as an address is sought to identify the addressee of the subpoena, another way of identifying the addressee would be to specify his or her date of birth, but that would come afoul of the same concerns of our community concerning the privacy of individuals and the unfortunate crime of “identity theft”. However as I said I am not persuaded that the subpoena is defective merely because the address of the addressee of the subpoena is care of the officer-in-charge.

13. Now Madam Crown do you have another application?

14. CROWN PROSECUTOR: I do your Honour. I ask that your Honour consider issuing a warrant pursuant to 194(1)(b) in relation to--

15. HIS HONOUR: Any objection? Neither the ruling?

16. RAHME: No your Honour, no objection.

17. HIS HONOUR: No objection from Mr Chambour nor from Mr Khallouf?

[Further submissions]

18. HIS HONOUR: Pursuant to s 194(1)(b) of the Evidence Act 1995 I direct that a warrant issue for the arrest of Isaac Parry at the residential and mailing address shown on exhibit W23. Such warrant not to be executed before 6am on Tuesday 4 October?

19. ADJOURNED PART HEARD TO TUESDAY 4 OCTOBER 2016

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Decision last updated: 24 October 2016