R v Cunningham; R v Moarefi (No 2) - [2020] ACTSC 263

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cunningham; R v Moarefi (No 2)
Citation:	[2020] ACTSC 263
Hearing Date:	10 September 2020
DecisionDate:	10 September 2020
Before:	Burns J
Decision:	See [9]–[10]
Catchwords:	CRIMINAL LAW – PRE-TRIAL APPLICATION – application for substituted service – whether witness evading service
Cases Cited:	R v Zradrovic [2015] ACTSC 154; 298 FLR 12
Parties:	The Queen (Crown) Christopher Cunningham (Accused) The Queen (Crown) Benjamin James Moarefi (Accused)
Representation:	Counsel M Dyason (Crown) J De Bruin (Accused) A Haban-Beer (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) Boxall Legal (Accused)
File Numbers:	SCC 214 of 2019; SCC 215 of 2019; SCC 270 of 2019

BURNS J:

This is an application effectively for an order for substituted service permitting a subpoena to be served on the witness, BE, other than personally. I will return in a moment to the proposed methods of service.

I take the relevant law to be that which is set out in the judgment of Refshauge J in

R v Zdravkovic
[2015] ACTSC 154; 298 FLR 12. I will not recite the principles that are set out in that decision, but I adopt them.

I am satisfied on the basis of the material before me which consists of an affidavit of Nicole Watkins affirmed on 7 September 2020 together with further oral evidence given by Ms Watkins in the proceedings before me today, 10 September 2020, that attempts have been made to serve the subpoena for the witness to attend the trial of

Mr Cunningham and Mr Moarefi next week by attempting to serve him at his address at [redacted]. That, I understand, is an address at which he is obliged to reside by reason of a Good Behaviour Order which is currently in force.

Those attempts have proved futile at the present time, with an attempt having been made on 30 August 2020 at which time Senior Constable Giorgio spoke to BE's mother who said that she did not know where he was and that he was “moving around all over the place”.

On 4 September 2020, Senior Constable Gallas also attended [redacted] and spoke with a male who identified himself as “ME” and he told Senior Constable Gallas that the witness did not live there and he did not know where the witness lived and he did not have any contact number for the witness.

There is evidence before me that police have been able to ascertain a further email address for the witness and also have a more recent mobile telephone number. I am satisfied that the witness is attempting to evade service of the subpoena. The affidavit speaks clearly of the fact that the witness is aware of the fact that he is required to give evidence in the upcoming trial and is aware of the fact that police are attempting to serve a subpoena on him. I have no doubt, based on the material before…

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.

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Details

Case: [2020] ACTSC 263
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory dealt with the application of two accused individuals, Christopher Cunningham and Benjamin James Moarefi, who were facing trial. The Crown sought an order for substituted service of a subpoena on a key witness, BE, who was believed to be evading service. The primary legal issue before the court was whether the witness was indeed avoiding service and if the proposed methods of substituted service would likely reach the witness. The court had to consider the principles set out in the judgment of Refshauge J in R v Zdravkovic [2015] ACTSC 154; 298 FLR 12, which outline the criteria for granting substituted service.

The court found that attempts to personally serve the subpoena on the witness at his address had been unsuccessful. The evidence showed that the witness was aware of the need to attend the trial and was actively avoiding service. The court was satisfied that the proposed methods of service, including serving the subpoena on the witness's mother, a legal practitioner acting on behalf of the witness, and any person present at the witness's address, along with sending an email and text message to the witness, were likely to be effective. Given these findings, the court granted the application for substituted service.

In summary, the court ruled that the requirement for personal service of the subpoena on the witness, BE, would be dispensed with. The subpoena and a copy of the court's orders were to be delivered to any person at the witness's address, served on the witness's mother, and personally served on the legal practitioner. Additionally, a text message and email were to be sent to the witness to inform him of the subpoena and the court's orders. The court also directed that any conduct money payable to the witness would be payable in cash upon his attendance at court. The delivery of the documents in accordance with the orders was deemed to be good service of the subpoena on the witness. The orders were not to be published until the conclusion of the trial of both accused individuals.

Orders