R v Freeman-Quay (No 2)
[2015] ACTSC 263
•27 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Freeman-Quay (No 2) |
Citation: | [2015] ACTSC 263 |
Hearing Date: | 27 May 2015 |
DecisionDate: | 27 May 2015 |
Before: | Murrell CJ |
Decision: | Statements of witnesses not admitted under s 65 of the Evidence Act. |
Category: | Interlocutory application |
Catchwords: | EVIDENCE – Admissibility – hearsay evidence – exception – maker of statement not available – whether all reasonable steps taken to find the person |
Legislation Cited: | Evidence Act 2011 (ACT) ss 65, 65(2), Dictionary cl 4(1) |
Parties: | The Queen (Crown) Levi Freeman-Quay (Accused) |
Representation: | Counsel Ms S McMurray (Crown) Mr K Archer (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 5 of 2014; SCC 51 of 2015 |
Murrell CJ:
The Crown seeks to tender the police statements of the witnesses Samuel Thomas, Ronnie Burt and Jessica McCallion, pursuant to s 65 of the Evidence Act 2011 (ACT) (Evidence Act). Section 65 provides:
(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 –
...
(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication.
Clause 4(1) of the Dictionary to the Evidence Act provides that a person is taken not to be available to give evidence about a fact if:
...
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person’s attendance, but without success...
The witnesses were the friends of the complainant. Each witness made a statement to police in a formal police setting. Without making a final decision and for the purpose of argument I assume that the requirements of s 65(2)(b) of the Evidence Act are satisfied.
The issue for determination in each case is whether “all reasonable steps have been taken” by the prosecution to find the person or secure their attendance.
Clause 4(1)(f) of the Dictionary to the Evidence Act refers to two separate and alternative circumstances: the finding of a person, and the securing of their attendance. Presumably, securing of attendance relates to situations where the whereabouts of a person are known but the person’s attendance cannot be secured because the person is unwilling, or is too ill or otherwise unable to attend. In relation to the witnesses the subject of this application, it is a question of whether they cannot be found.
Until April 2015, Samuel Thomas was in Queensland at a location known to the prosecuting authorities He was subpoenaed to attend the trial when it was previously listed in March 2015. He attended, driving from Queensland for the purpose of answering the subpoena. In early April 2015 there were conversations between the prosecuting solicitor and the witness concerning reimbursement for the witness’s attendance at the March 2015 trial listing. However, in late April 2015, attempts to contact Mr Thomas by telephone and text were unsuccessful. In April 2015, Queensland Police were asked to serve a subpoena on the witness at his last known address. No response was received from the police as to whether an attempt had been made and whether it was successful. The witness was aware of the trial date and had indicated that he would attend.
It may well be that the witness still resides at the last known address in Queensland. It is possible that attempts to contact him in late April 2015 were unsuccessful not because the witness was attempting to avoid contact but because he was overseas, out of telephone communication, or for some other reason. It is unknown whether service of the subpoena was attempted. Despite the recent difficulty in contacting the witness, I am not satisfied that “all reasonable steps have been taken” to find or secure his attendance.
In relation to Ronnie Burt, numerous attempts were made to contact him both in person and by telephone. Attempts were made in March 2015 (prior to the earlier listed trial date) and May (with respect to the current trial date). There were several attendances at his last known residential address. The current occupant of the premises stated that the witness had left that address and his whereabouts were unknown. An attendance at the witness’s place of employment yielded a similar result. Attempts to contact him by mobile telephone were unsuccessful. The prosecution was in possession of two telephone numbers. One was disconnected and the other was constantly engaged. No subpoena was served on Mr Burt with respect to the earlier or current trial listing date.
I am satisfied that all reasonable steps were taken to contact him by telephone and to physically locate him by attending at his last known places of residence and employment. However, that does not mean that all reasonable steps were taken to find him. There are a number of other fairly obvious steps that could reasonably have been taken. These include searches of:
(a)The electoral roll.
(b)The motor vehicle registry.
(c)Telephone books or electronic telephone records.
(d)Police indices, to ascertain whether the witness had any traffic infringements.
(e)Social media, such as Facebook, to ascertain whether the witness had a profile and could be found through that means.
I do not intend to suggest that in order to satisfy the requirements of s 65 of the Evidence Act, it would be necessary for the prosecution to explore all the possibilities mentioned at [8]. As to what amounts to “reasonable steps” will depend upon all the circumstances of the case. It will require consideration of the importance of the witness’s evidence and information as to the methods that are most likely to result in locating the witness.
In this case, each witness was a potentially important eye witness.
It well known that most young people use social media for communication purposes. As a matter of course, a search of social media sites should be considered as the starting point in an endeavour to locate any young person. A search of electoral rolls (and similar searches) is a more old-fashioned way of proceeding and not one that is necessarily likely to yield an accurate result.
In the case of Mr Burt, none of the searches mentioned at [8] were attempted. I am not satisfied that “all reasonable steps have been taken” to find or secure the attendance of Mr Burt.
At the time of the incident, Jessica McCallion, was Mr Burt’s girlfriend. As in the case of Mr Burt, I am satisfied that all reasonable attempts were made to locate Ms McCallion at her last known address and via telephone. Contact was attempted through several telephone numbers known to the police and the prosecution. All attempts were unsuccessful. One number was answered by a man who said that it was the wrong number. Two numbers appeared to have been disconnected.
However, that does not mean that all reasonable steps were taken. Some of the searches mentioned at [8] should have been made. According to one of Ms McCallion’s statements (tendered as a voir dire exhibit), she was a Facebook user. Inferentially her Facebook profile still exists; unless Ms McCallion is using other social media. Searches of the most common social media sites could readily have been made in an effort to locate her. I am not satisfied that “all reasonable steps have been taken” to find or secure the attendance of Ms McCallion.
The statements of the witnesses will not be admitted under s 65 of the Evidence Act.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 31 August 2015 |
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