R v Droudis (No. 7)
[2016] NSWSC 1274
•05 September 2016
Supreme Court
New South Wales
Medium Neutral Citation: R v Droudis (No. 7) [2016] NSWSC 1274 Hearing dates: 5 September 2016 Date of orders: 05 September 2016 Decision date: 05 September 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: For the purpose of s.65(2) Evidence Act 1995, the hearsay rule applies to the first representation but not the second representation arising from the evidence of Sonia Conciatore.
Catchwords: CRIMINAL LAW – Judge-alone trial for murder - Crown seeks to rely upon two representations for the purpose of s.65(2) Evidence Act 1995 - maker of representations “not available” - hearsay rule applies to first representation but not to second representation Legislation Cited: Children (Criminal Proceedings) Act 1987
Evidence Act 1995Cases Cited: Sio v The Queen [2016] HCA 32 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown)
Amirah Droudis (Accused)Representation: Counsel:
Solicitors:
Mr M Tedeschi QC; Mr DT Scully (Crown)
Mr MJ Ierace SC; Mr RJ Wilson (Accused)
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)
File Number(s): 2013/345405 Publication restriction: ---
JUDGMENT
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JOHNSON J: The Crown has called as a witness in its case Sonia Conciatore. Ms Conciatore was a close friend of the deceased. I will not identify the deceased in this judgment as it may serve to identify the two children of her marriage to Man Monis: s.15A Children (Criminal Proceedings) Act 1987.
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The Crown has adduced evidence from Ms Conciatore of things which were said to her by the deceased over a period of time. Before the topics which have given rise to the present objection, Ms Conciatore has given evidence about what the deceased had told her concerning her relationship with her former husband (Monis), with those matters being sourced to Monis.
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The Crown has sought to adduce evidence from Ms Conciatore with respect to things which the deceased said to her arising from direct communications between the deceased and the Accused, Amirah Droudis.
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The statements obtained by police from Ms Conciatore on 22 April 2013 and 14 May 2013 (MFIs 27 and 28 respectively) were in a type of narrative form. Against this background, an objection was indicated before Ms Conciatore entered the witness box to evidence which she may give concerning what the deceased said to her about the deceased's communications with the Accused.
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It was agreed by counsel that the best way forward was when that point of her examination-in-chief was reached, a voir dire be commenced with the evidence to be led with the witness being asked to give her best recollection, in the first person, of what the deceased told her had been said between the deceased and the Accused.
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The voir dire took place and submissions have occurred since. During the course of the voir dire, I granted leave to the Crown to allow Ms Conciatore to refresh her memory under s.32 Evidence Act 1995 by reference to parts of her 22 April 2013 statement (MFI27) (T438).
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The issue presently under consideration is whether certain evidence given by Ms Conciatore may be admitted for the purposes of s.65(2) Evidence Act 1995. This section has been recently considered by the High Court of Australia in Sio v The Queen [2016] HCA 32. Put shortly, the High Court makes clear that it is necessary, where a s.65 issue arises, for the particular representation or representations to be identified with some precision and, secondly, for the requirements of s.65 to be considered separately and not in a compendious way.
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With those principles in mind, the Crown has identified two representations which are sought to be relied upon under s.65. It is appropriate to bear in mind that these representations should identify the facts which are sought to be proved in an admissible fashion by use of s.65.
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The first representation arises from the evidence of Ms Conciatore about a conversation, in about January 2013, where the deceased and the Accused were discussing the use of the term "Mummy" said to be attributed by the deceased's children to the Accused.
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The second representation arises from a conversation about two weeks before 21 April 2013, where there is said to have been an argument between the Accused and the deceased about the boys, with the Accused allegedly saying she wanted the boys to “live with Michael” (that is, Monis).
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The evidence the Crown seeks to adduce from Ms Conciatore concerns her conversation with an “unavailable person” (the deceased) as to what the deceased said that the Accused had said to her.
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Senior Counsel for the Accused advanced an argument that this was in fact second-hand hearsay and attention was drawn to s.62 Evidence Act 1995.
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I am not presently persuaded that the two alleged representations arise in a setting of second-hand hearsay. Having considered the various persons involved in the chain of communication involved with these conversations, I am satisfied, for present purposes, that it constitutes firsthand hearsay.
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The terms of s.65 need to be approached, as the High Court said in Sio v The Queen, with each element being applied to the representation under consideration.
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I commence with the second representation, namely, what is said to have happened about two weeks before the death of the deceased, where there is said to have been an argument with the Accused having said something to the deceased about her wanting the boys to live with Monis.
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Considering the components of s.65(2), I do not consider that s.65(2)(a) has any application. A question arises as to whether s.65(2)(b) is satisfied. In this respect, Ms Conciatore says that she was told soon after the event in question of the argument involving the Accused allegedly saying that the children should belong with Monis. I note that Ms Conciatore referred to this event in general terms in her statement of 22 April 2013 (MFI27), and said it had occurred about two weeks before.
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I am satisfied that this representation was made shortly after the asserted fact occurred, and in circumstances that make it unlikely that the representation is a fabrication. In that regard, I refer generally to the pattern of the deceased's communications with Ms Conciatore where she reported events which had occurred in her life and, in particular, in this period with respect to her past relationship with Monis, the two sons of that relationship and the Accused, who was described as “the girlfriend”.
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Section 65(2)(c) requires the Court to consider whether the representation was made in circumstances that make it highly probable that the representation is reliable. In the circumstances I have just outlined for the purposes of s.65(2)(b), there is a foundation for such a conclusion.
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I note the submission on behalf of the Accused that there is a video of a particular occasion where persons came together which does not support this claim. I do not consider that aspect can be clearly and completely sheeted home to this event.
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In any event, the ultimate question of the use that may be made of this evidence, and what factual findings ought be made, will be a matter to be considered in the light of all the evidence.
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Finally, for the purposes of s.65(2)(d), it is necessary to consider whether the representation was against the interests of the person who made it at the time it was made, and that it was made in circumstances that make it likely that the representation is reliable. I am satisfied that these aspects are met with respect to the second representation. I am satisfied, therefore, that the second representation should be admitted and treated as being admissible under s.65 Evidence Act 1995.
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As to the first representation, there is a fundamental difficulty. It seems to me that there are, on my understanding of the evidence, two versions given by Ms Conciatore. One of them attributes a conversation with respect to the use of the word "Mummy" by the children to Monis. The other appears to attribute that to a conversation with Monis and “the girlfriend” (the Accused). The evidence of Ms Conciatore is uncertain as to the particular timing of that conversation, let alone any clear statement that attributes it to the Accused as opposed to Monis.
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I note that Ms Conciatore’s statement of 22 April 2013, at paragraphs 13 and 14, does not attribute a representation along the lines of the first representation to the Accused.
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For the purpose of considering the elements of s.65(2), I state shortly my conclusion that the Court cannot make findings favourable to admission of the first representation by reference to reliability. There are, of course, understandable issues arising with respect to the precise memory of Ms Conciatore as to a number of these events.
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I do not propose to allow the first representation to be admitted for the purpose of s.65.
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Decision last updated: 07 November 2016
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