R v El Masri

[2010] NSWSC 1277

CITATION:	R v El Masri [2010] NSWSC 1277
HEARING DATE(S):	1/11/2010 3/11/2010
JUDGMENT DATE :	5 November 2010
JUDGMENT OF:	Hoeben J
DECISION:	Grant leave to the Crown to adduce as evidence portions of the ERISP under consideration.
CATCHWORDS:	CRIMINAL LAW - evidence - hearsay - murder trial - witness unavailable (overseas) - previous induced ERISP - whether portions of ERISP admissible.
LEGISLATION CITED:	Evidence Act 1995
CATEGORY:	Procedural and other rulings
CASES CITED:	Papakosmas v The Queen (1999) 196 CLR 297 R v Ambrosoli [2002] NSWCCA 386 R v Blick [2000] NSWCCA 61, (2000) 111 A Crim R 326 R v Clark [2001] NSWCCA 494 R v SSA [2007] NSWSC 111 R v Suteski [2002] NSWCCA 509, (2002) 56 NSWLR 182
PARTIES:	Crown Rami - El Masri - Accused
FILE NUMBER(S):	SC 2009/00158044
COUNSEL:	Mr TR Bailey - Crown Mr T Hoyle SC - Accused
SOLICITORS:	Director of Public Prosecutions - Crown Aquila Lawyers - Accused

SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 5 November 2010

2009/00158044 – R v Rami El MASRI

JUDGMENT

1 HIS HONOUR:

Nature of Application
Before the commencement of the trial, the Crown foreshadowed the tender of portions of a recorded interview by police of Farah Kurdieh. That tender was opposed by the defence. In order to minimise delays during the trial, I decided to deal with this as a preliminary matter before the jury was empanelled. There was no issue that a first hand hearsay notice had been issued by the Crown pursuant to s 67 of the Evidence Act 1995 (the Act).

2 The accused is charged with the murder of Mohamad Omar at a nightclub known as “Beirut by Night” in Parramatta Road, Homebush. It is alleged that on the night of 13/14 December 2008 he stabbed the deceased with a knife or other sharp object in the course of a fracas, which occurred on the dance floor of those premises. The accused is also charged with wounding with intent to cause grievous bodily harm. The victim in that matter was the deceased’s brother.

3 On the Crown case a dispute arose on the dance floor between the accused and the deceased which was apparently triggered by the way in which the deceased’s girlfriend was dancing with the accused. Other persons joined in so that a melee developed. It is the Crown case that Ms Kurdieh was also on the dance floor very close to where the disagreement commenced.

4 An issue likely to arise at trial is whether the accused was on the dance floor at the time when the fracas commenced and whether he participated in it. Another issue likely to arise is what the accused did shortly after the deceased’s death, in particular, whether and in what circumstances he went to Chahine’s Restaurant at Bankstown. On the Crown case the accused did so to wash blood from himself and his shirt.

5 It is against that background that the evidence of Ms Kurdieh needs to be considered.

6 On 15 December 2008 Ms Kurdieh provided a statement to the police. In that statement she said that the accused was on the upper floor of the restaurant with her when the fracas commenced. In that statement she said that when she left the premises, she drove straight home and observed the accused driving his car behind her.

7 On 22 December 2008 the accused was charged with the matters currently before the Court. Mohamad Chamma was charged with being an accessory after the fact to murder and with being an accessory after the fact to the commission of a serious indictable offence. On that same day, Farah Kurdieh was charged with being an accessory after the fact to murder, being an accessory after the fact to the commission of a serious indictable offence and concealing a serious offence. Between 3 February 2009 and 16 February 2009 negotiations took place with the police and the DPP about the making of an induced statement by Farah Kurdieh.

8 On 16 February 2009 Ms Kurdieh made an induced statement, which differed from the earlier statement, in two significant ways. The making of the induced statement was recorded on DVD and a transcript was created. In the induced statement Ms Kurdieh said that she was on the dance floor very close to the accused when he was punched by the deceased and that this was the event which brought about the fracas.

9 The second difference related to what happened when she left the nightclub. In the induced statement she said that as she was driving from the nightclub she received a phone call from the accused which directed her to a particular location. At that location the accused got into her car and drove to Chahine’s Restaurant at Bankstown. In doing so, he followed his own car, a black Lexus, which was being driven by Mohamad Chamma. Ms Kurdieh said that the accused then proceeded to wash blood off his hand, his forearm and shirt.

10 Despite having made the induced statement, Ms Kurdieh refused to give an undertaking to give evidence against the accused. On 24 August 2009 the charges against Ms Kurdieh were withdrawn and she was charged with hindering a police investigation. On 25 November 2009 she pleaded guilty to that offence and received a suspended sentence.

11 Detective Sergeant Agnew was in charge of the police investigation. He gave evidence in the application. His evidence was that on 30 September 2010 the Campsie Police received information from a community source that Farah Kurdieh was planning to leave the country to avoid giving evidence at the accused’s trial. Detective Sergeant Agnew visited her home on two occasions on 20 October 2010 and once on 21 October but was told that she was not at home. On 21 October an application was made to place an alert on Ms Kurdieh so as to inform police if she was leaving the country. This application was denied by the Federal Police.

12 Subsequent inquiries revealed that Ms Kurdieh, using her Australian passport in the name of Nancy Curtis, had purchased a ticket to Lebanon on Etihad Airways on 19 October and had left Australia for Lebanon on 21 October 2010. Ms Kurdieh’s mother left Australia for Lebanon on 23 October 2010. As of the present time, Ms Kurdieh continues to reside in Lebanon and it is not known when or if she will return to Australia.

13 In making this application the Crown relies upon s 65 of the Act. This section relevantly provides:

“65(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
(a) was made under a duty to make that representation or to make representations of that kind; or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable; or
(d) was:
(i) against the interests of the person who made it at the time it was made; and
(ii) made in circumstances that make it likely that the representation is reliable.
…
(7) Without limiting paragraph (2)(d), a representation is taken for the purposes of that paragraph to be against the interests of the person who made it if it tends:
(a) to damage the person’s reputation; or
(b) to show that the person has committed an offence for which the person has not been convicted; or
(c) to show that the person is liable in an action for damages.
…”

14 I am satisfied that the precondition for the operation of s 65 has been made out, i.e. that Ms Kurdieh is “not available” as that phrase is defined in clause 4 of the dictionary to the Act. From the evidence of Detective Sergeant Agnew, I am satisfied that all reasonable steps have been taken by the Crown to secure the attendance at the trial of Ms Kurdieh but without success. While more could have been done to secure her attendance, that is not the test.

15 I am satisfied that the evidence conveyed by the representations is important. It places the accused at a location where one would expect him to be if he committed the offences with which he has been charged and it provides a motive for the offences. The evidence concerning what occurred following Ms Kurdieh’s departure from the nightclub places blood on the accused and on his shirt and is consistent with flight and a consciousness of guilt.

16 Support for the approach adopted by the Crown is to be found in R v Suteski [2002] NSWCCA 509, (2002) 56 NSWLR 182 and R v SSA [2007] NSWSC 111. While in those cases the “unavailability” arose because witnesses refused to give evidence, the interpretation of s 65(2)(d) of the Act is applicable to the facts of this case.

17 The Crown submitted that the representations relating to the accused’s location at the time when the fracas commenced and relating to the accused’s actions following his departure from the nightclub were made against the interests of Ms Kurdieh. He submitted that the representations tended to damage her reputation in that they made it clear that she had lied on an earlier occasion. In the alternative, he submitted that the representations tended to show that she had committed an offence for which she had not been convicted, i.e. making a false statement to the police.

18 The defence submitted that the Crown submission should not be accepted because there was no evidence as to the reputation of Ms Kurdieh before the representations were made. He submitted that since the representations were part of an induced statement, they could not be used against her unless she breached the specific conditions under which the statement was made.

19 I am satisfied that the representations were made against interest. Regardless of the state of a person’s reputation at any given point in time, proof that such a person has told lies on an earlier occasion must “tend” to damage that person’s reputation even if the reputation was already in a damaged state. The word “tend” refers to a possibility not an actuality.

20 If it were necessary, I am also satisfied that the representations tend to show that Ms Kurdieh had committed an offence for which she has not been charged. I do not read s 65(7) as requiring that the representation itself could be used to establish an offence only that the representation demonstrates that such an offence has been committed.

21 The Crown and the defence were also at issue as to whether the representations “were made in circumstances that made it likely that the representations were reliable”.

22 In support of the proposition that the representations were admissible, the Crown pointed to evidence from other witnesses which was corroborative of the representations. In that regard, I agree with the submission of the defence that evidence going only to the reliability of the asserted fact is not the sort of evidence contemplated by s 65(2)(d)(ii) of the Act. What the section is directed to is whether the circumstances in which the representations were made, rendered it unlikely that the representations were fabrications (R v Ambrosoli [2002] NSWCCA 386 at [28 – 41]). Nevertheless, all that needs to be established is that “the circumstances make it likely”. This, of course, is to be contrasted with the requirement in s 65(2)(c) of “high probability”.

23 Applying the correct test as required by R v Ambrosoli and focusing upon the circumstances in which the representation was made, I am satisfied that those circumstances make it likely that the representations are reliable. I have reached that conclusion for the following reasons. The representations were part of an induced statement. The protection provided by that statement would be lost if anything said in the statement were false. Accordingly, the very benefit and purpose of the induced statement would be lost if its contents were false.

24 It is usually asserted and s 165 expressly provides, that evidence given in criminal proceedings by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, is likely to be unreliable. An exception to that proposition is the case of an accessory after the fact where there is no suggestion that the accessory was or could have been directly involved in the principal offence. Such a circumstance was comprehensively analysed by Heydon JA (as he then was), with whom Dowd and Bell JJ agreed, in R v Clark [2001] NSWCCA 494 at [53 – 73].

25 On that issue his Honour said:

“66 Let it be assumed that Mr Brown could have been charged as an accessory after the fact (which is questionable). Let it be assumed that he feared being charged with concealing a serious offence or with some crime in the nature of misprision of felony (which was not explored). Let it be assumed that his concealment of a serious offence caused him to fall within the language of s165(1)(d) (which is a controversial construction). Even on those assumptions, it was not in Mr Brown’s interests falsely to fasten the death of the deceased onto the appellant. It would have been in his interests as much as those of his friend, the appellant, if the deceased had died of natural causes or at someone else’s hand. He could gain nothing by establishing the appellant’s guilt. He could bring nothing but trouble upon himself by doing so. There was nothing to suggest that his evidence fell within a “kind” that was unreliable.
67 One of the dangerous aspects of accomplice evidence which the general law recognised is that “an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth”: R v Ncanana 1948 (4) SA 399 at 405 …
69 That reasoning has no application here. Mr Brown had no role in the crime. He had no “part” which could be reversed with that of the appellant. He gave no direct evidence of the appellant’s role in the crime which could be exaggerated. He was not peculiarly equipped with any inside knowledge. He knew nothing in particular about the facts of the death. Rather his evidence was of a confession which the appellant, in the telephone conversation of 17 March 2000, admitted making: the appellant did not deny it, he did not say that he had been misunderstood, he simply said that he had been untruthful. Any offence of which Mr Brown might have been convicted was not one which would tempt him to exaggerate or fabricate evidence about the appellant’s guilt.”

26 The same considerations apply to the position of Ms Kurdieh when making the induced statement. She was not in the conventional position of a co-offender and so her evidence is not subject to the same concerns as to unreliability.

27 A final consideration which bears upon circumstances that make it likely that the representations are reliable, is that in the course of making the induced statement, various photographs were placed before Ms Kurdieh so that she could identify the persons depicted. These were photographs taken from CCTV footage at Chahine’s Restaurant after the accused’s departure from the nightclub and which show him and Ms Kurdieh at that location. The placing of those photographs before Ms Kurdieh would have made it clear to her that there was other evidence placing her at that location at that point in time. One can therefore infer that this would have been a further indicator to Ms Kurdieh that she should be accurate in describing the circumstances of her attendance at Chahine’s Restaurant.

28 For those reasons I am satisfied that the circumstances in which the representations were made render it likely that the representations are reliable. This is so despite the fact that the representations themselves make it clear that Ms Kurdieh told lies on an earlier occasion.

29 The defence submitted that even if s 65(2)(d) applied, it only made admissible those representations which were specifically against interest on the part of Ms Kurdieh. This is an unduly narrow interpretation. It was considered in Suteski and was rejected:

“92 It was next submitted that only so much of Sakisi’s ERISP as could be regarded as a statement against his own interests could be admissible under s65(2), it being contended, for example, that a representation to the effect that the appellant “ gave me instructions to arrange the bashing..” could not be so regarded. His Honour accepted the first part of that proposition, but not the second, holding, correctly in my view, that any statement made by Sakisi, which tended to implicate himself in a joint criminal enterprise with the appellant, would qualify. I so find because this is the classic definition of a statement against interest, as reproduced in s65(7) of the Act.
93 An argument was also advanced that each question and answer should be considered separately, and that, unless standing alone, it amounted to a representation against interest, it did not qualify for admission. In my view this involved altogether too narrow a proposition. I see no reason why the representations should not be considered in context, that is, in association with the other answers which, when read together, constitute an admission or answer against interest, that is, so far as they tended to prove that Sakisi had committed a crime.
94 It was also submitted that, in view of Sakisi’s position as an accomplice, and the arrest of his girlfriend, such statements as he had made in the ERISP may have been self-serving, or intended to serve her interests. Upon that basis, it was argued that the representations could not be held with any certainty to be against his interests. His Honour rejected this argument, holding that despite any mixed motives which he may have held, any answer which tended to be incriminatory of him was one made against interest. Again, I am of the view that this aspect of his Honour’s reasoning was correct, and that the argument to the contrary, repeated on appeal, has no basis. It similarly follows from the commonly accepted meaning of a statement against interest.”

30 In the course of argument it was conceded by the Crown that there were substantial parts of Ms Kurdieh’s induced statement which were not against interest or which involved answers which amounted to second hand hearsay. The Crown undertook to delete those matters from both the DVD and any transcript created as a result of the induced statement, which were to be placed before the jury. The fact that this process will need to take place does not preclude the defence taking specific objection to parts of the statement which are objectionable for reasons other than those addressed in these reasons.

31 The admissibility of Ms Kurdieh’s ERISP was criticised in a general manner on the basis that the evidence was untested by cross-examination, she had in effect confessed to being a liar and she had an expectation of receiving a benefit if she made the induced statement. These matters do not go specifically to admissibility pursuant to s65(2). They are matters which are more properly taken into account when considering the application of sections of 135 and 137 of the Act. This appears to be the approach adopted in Suteski where Wood CJ at CL said:

“90 At first blush, it may seem unusual that there should be a difference between the position of a potential witness now unavailable, who had given evidence on an earlier occasion, and one whose earlier account had not been given on oath. Similarly it may seem unusual that, had Sakisi gone to trial with the appellant, then his ERISP, if tendered, could only have been received as evidence in the case against him.

91 Notwithstanding these considerations, if the ERISP answers the requirements of the section, the philosophy of which is to allow the use of specified categories of hearsay evidence, then, subject to the safeguards of notice and possible exclusion under s 135 or s 137 of the Act, I see no obstacle to its tender. In particular I see no reason to read into s 65(2) qualifications which appear in relation to other subsections, but which have been omitted from it.”

32 It follows, subject to the application of sections 135 and 137 of the Act that I am satisfied that the representations in Ms Kurdieh’s ERISP are admissible pursuant to s65(2)(d) of the Act.

33 Section 135 provides:

“135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.”

34 Section 137 provides:

“137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.”

35 In relation to s137 the classic statement of principle remains that of Sheller JA in R v Blick [2000] NSWCCA 61, (2000) 111 A Crim R 326 at [19 – 20]”

“19 When an application is made by a defendant pursuant to s137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion … even so … there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected.”

36 I have already found that the evidence sought to be adduced from Ms Kurdieh’s ERISP is important in the Crown case. While there is other evidence to the same effect, much of that evidence comes from persons who are friends or relatives of the deceased. The probative value of the evidence, coming as it does from someone who was a friend of the accused, if accepted by the jury would be high.

37 In carrying out the other part of the weighing process, it needs to be kept in mind that the concept of “unfair prejudice” does not mean “damaging to the accused” but refers to circumstances where “there is a real risk that the evidence will be misused by the jury in some unfair way” (Papakosmas v The Queen (1999) 196 CLR 297 at [91]).

38 I do not see the evidence in itself being “unfairly prejudicial” provided appropriate directions are given to the jury. Quite clearly a warning will have to be given as to the fact that the evidence has been untested by cross-examination. Similarly, the jury will need to be warned about the potential unreliability of the evidence because it was given in the expectation of obtaining a benefit and because the evidence itself constitutes an acknowledgement by Ms Kurdieh that she told lies on a previous occasion about the same subject matter. There would also need to be directions concerning the hearsay nature of the evidence and concerning the role played by Ms Kurdieh in what occurred. There is nothing novel in this. The content and effectiveness of such directions were considered in Suteski at [130 – 131].

39 I am satisfied that if appropriate directions are given, the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused.

40 Accordingly, I grant leave to the Crown to adduce as evidence portions of the induced statement of Ms Kurdieh recorded by the police on 16 February 2009. That leave is subject to the qualifications expressed in these reasons and to any further argument which might arise in relation to specific parts of the statement to which objection on another basis may be raised by the defence.

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