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 me, that he is attempting to evade service.
On the material before me I am also satisfied that it is likely that service of documents other than personally will come to his attention if the proposed methods of service set out in the application are adopted. Those proposed methods of service are service by the police of the subpoena:
a) firstly on the mother of the witness;
b) secondly a legal practitioner acting for the witness who has a history of acting on behalf of the witness; and
c) thirdly, any other person who is present at the aforementioned address in the ACT.
In addition to which I propose to direct that the Crown send an email to the witness at the email address which has been provided and also send a text message to the witness at the mobile phone number which has been provided. The messages should be to the effect that a subpoena has been issued requiring his attendance at Court and a copy has been sent to his home address, to his mother and to his lawyers.
Orders:
The formal orders that I make are:
a) firstly, that the requirement for the personal service of the subpoena addressed to BE be dispensed with;
b) secondly, that a subpoena and copy of the orders that I am now making be delivered to any person at [redacted] requiring the witness to appear at Court on 17 September 2020;
c) thirdly, that a copy of the subpoena and the orders that I am making be served on the mother of the witness;
d) fourthly that a copy of the subpoena and a copy of the orders that I am making be served personally on [redacted]. I direct that a text message be sent to mobile telephone number [redacted] advising the witness that a subpoena has been issued requiring his attendance at Court on 17 September 2020, that a copy has been sent to his home address, to his mother and to his lawyer which the Court has declared is a binding order on him to attend; and
e) fifthly; I further direct that an email be sent to the witness at the email address [redacted] advising the witness that a subpoena has been issued requiring his attendance at Court on 17 September 2020 and that a copy has been sent to his home address, his mother and his lawyer which the Court has declared is a binding order on him to attend.
I will further order that any conduct money payable to the witness is to be payable in cash upon his attendance at Court on 17 September 2020 and that the delivery of the documents in accordance with the orders that I have made be deemed to be good service of the subpoena on the witness. I direct that this not be published until the conclusion of the trial of both accused.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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