R v Hassan-Judge and Lynch
[2022] SADC 107
•9 September 2022
District Court of South Australia
(Criminal: Application)
R v HASSAN-JUDGE AND LYNCH
[2022] SADC 107
Ruling of his Honour Judge Durrant
9 September 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - EVIDENCE - DEPOSITIONS - OF ABSENT WITNESS - PERSONS UNABLE TO ATTEND THROUGH FEAR
The accused are charged jointly and have pleaded not guilty to aggravated causing serious harm with intent to cause serious harm.
The prosecution has applied pre-trial for three affidavits of a proposed witness to be admitted into evidence without her oral examination and cross examination; Evidence Act 1929, s 34KA(1). The prosecution seeks to establish the potential witness holds a fear of physical harm and retribution if she co-operates with the prosecution and it is in the interests of justice to grant the application; Evidence Act 1929, ss 34KA(1) and (2)(e).
Three preconditions, before the discretion to admit out of court statements is enlivened, must be established by the prosecution on the balance of probabilities; Evidence Act 1929, s 34KA(1); Wendo v The Queen (1962-63) 109 CLR 559, [572]. The defendants dispute the pre-condition that through fear the witness will not give oral evidence at trial, either at all or in connection with the subject matter of the out of court statements, has been established; Evidence Act 1929, s 34KA (2)(e).
Given that the potential consequence to the accused if the application is granted is the loss of the procedural right to cross examine, such as to place them in a position of significant forensic disadvantage, up to date evidence as to the fear held by the potential witness should be provided to the court.
As no recent evidence of the state of mind of the potential witness was led, the evidence was insufficient to conclude that through fear the witness will not give evidence at trial.
Further, no evidence was put before the court as to whether the witness was aware that special arrangements to give evidence at trial could be made and her attitude in that respect; Evidence Act 1929, ss 13, 34KA (4)(d).
Held: The application is dismissed.
Evidence Act 1929 (SA) ss 13, 34KA; Criminal Law Consolidation Act 1935 (SA) s 23; Criminal Procedure Act 1921 (SA) 123; Criminal Justice Act 2003 (UK), referred to.
Wendo v The Queen (1962-63) 109 CLR 559; R v Haines [2016] SASC 96; Mullen v the Director of Public Prosecutions (2019-2020) 136 SASR 274; R v Haines ; Mullen v DPP [2020] SASC 10; R v Horncastle and Ors [2009] UKSC 14; Riat, Doran, Wilson, Clare and Bennett v The Queen [2012] EWCA Crim 1509; R v Shabir [2012] EWCA Crim 2564, considered.
R v HASSAN-JUDGE AND LYNCH
[2022] SADC 107Introduction
The first accused Deeon Hassan-Judge, and the second accused Ethan Joseph Lynch, have been jointly charged and have pleaded not guilty to a single count of Aggravated Causing Serious Harm with Intent to Cause Serious Harm.[1] A trial of five days has been listed to commence on 17 October 2022.
[1] Criminal Law Consolidation Act 1935, s 23(1).
The Director of Public Prosecutions has made a pre-trial application for three affidavits of a proposed witness, SM, to be admitted into evidence at trial without her oral examination and cross-examination.[2] The Director submitted SM holds a fear of physical harm and retribution if she cooperates with the prosecution, and it is the interests of justice to grant the application.[3]
[2] T2.20-23 (1 October 2021); Evidence Act 1929, s 34KA(1).
[3] Evidence Act 1929, ss 34KA(1) and (2)(e).
Summary of the facts intended to be led by the prosecution
At trial, the prosecution intends to lead evidence to establish the following.[4]
[4] Prosecution Case Statement dated 11 August 2021 (filed 12 August 2021), [1]- [12].
During the afternoon and evening of 8 August 2020, Josh Staples was at his friend Heath Vincent’s house at Ingle Farm together with Mr Vincent’s girlfriend Nicole Checketts and their two young children. The adults drank alcohol, used illicit drugs and listened to music together.
SM was, at that time, a friend of Mr Staples, Mr Vincent and Ms Checketts and an associate of the accused Mr Lynch.
During the evening Mr Vincent became angry with SM for selling him a bad batch of methylamphetamine. Early on 9 August 2020, Mr Vincent telephoned SM and said he wanted nothing more to do with her and demanded she come over straight away and collect her belongings. The conversation involved some verbal abuse between Mr Staples, Mr Lynch and SM.
Between 4:30am- 5am on 9 August 2020, SM drove her car to Mr Vincent’s house. Mr Hassan-Judge was in the front passenger seat, Mr Lynch was in the rear passenger seat and the brother of SM, Brodie Owens, was in the rear driver’s seat. Mr Staples, Mr Vincent and Ms Checketts all went outside to the front of the house when the car arrived.
A verbal altercation escalated to a scuffle between Mr Staples and Mr Hassan-Judge through the open front passenger window. Mr Hassan-Judge exited the vehicle and fought with Mr Staples on the footpath. Mr Lynch alighted from the rear passenger seat and walked around behind the two fighting men and approached from the left. Mr Lynch stabbed Mr Staples in the sternum with his right hand. Mr Lynch pulled the knife from Mr Staples and got back in the car. Mr Staples held his stomach and as his hands filled with blood cried out he had been stabbed. Mr Hassan-Judge continued to punch and attempt to kick Mr Staples before getting back into the car.
Mr Staples and Mr Vincent ran to the door of the house. Ms Checketts, who had retreated to the house when the violence had broken out, called an ambulance. SM drove the car away.
Mr Staples suffered an eight-centimetre penetrating stab wound to the centre of his chest, below his rib cage. That injury caused a partial pneumothorax, injury to the liver, significant internal bleeding and bile leakage into the stomach. Mr Staples was treated in intensive care.
Later that day, SM and Mr Lynch watched a midday news report about a stabbing in Ingle Farm. Mr Lynch told SM that he had stabbed Mr Staples and was surprised he had not dropped dead straight away, as he ‘doesn’t stuff up things like that’.
Mr Hassan-Judge’s DNA was located on the internal front passenger door handle of the car of SM and Mr Lynch’s DNA was located on the internal rear passenger door handle.
Crime Scene Investigators located a large pool of blood on the footpath in front of Mr Vincent’s house and blood droplets leading to the front door.
Section 34KA of the Evidence Act 1929
On 17 June 2012, s 34KA of the Evidence Act 1929, commenced in the following terms:[5]
[5] Inserted by 12/2012, s 41.
34KA—Admissibility of evidence of out of court statements by unavailable witnesses
(1) Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an "out of court statement ) is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b) the person who made the out of court statement (the "relevant person ) is identified to the court's satisfaction; and
(c) any 1 of the conditions specified in subsection (2) is satisfied.
(2) The conditions are as follows:
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of a bodily or mental condition;
(c) that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence.
(3) For the purposes of subsection (2)(e) "fear" is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to—
(a) any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and
(b) the statement's contents; and
(c) any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross-examine the person); and
(d) any other measures that could be taken by the court in relation to the relevant person; and
(e) any other relevant circumstances.
(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—
(a) by the person in support of whose case it is sought to give the out of court statement in evidence; or
(b) by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement).
(6) Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement.
(7) This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence.
(8) In this section—
"prescribed proceedings" means—
(a) proceedings for a criminal offence; or
(b) proceedings under the Serious and Organised Crime (Control) Act 2008 .Evidence on the Voir Dire
The evidence on the voir dire was comprised of witness statements, police documents and the oral evidence of Detective Brevet Sergeant Lukas Lane- Geldmacher.[6]
[6] Exhibit VDP 1- Folder of Material from DPP, Tab 1- Affidavit of SM sworn 19 August 2020, Tab 2- Affidavit of SM sworn 27 August 2020, Tab 3- Affidavit of SM sworn 13 October 2020; Tab 4- Antecedent Report – SM dated 4 March 2021; Tab 5 – SM – Offender History Summary Report – Various; Tab 6 – Facts of Charge – C02000002411 Thomas David Burbridge; Tab 7 – Facts of Charge – C02100000802 – SM; Tab 8 – Facts of Charge – C02100017254 – SM; Tab 9 – Facts of Charge – C02100004554 – SM; Tab 10 – Facts of Charge – C02100007474 – SM; Tab 11 – Facts of Charge – C02100014031 – SM; Tab 12 – Brief Overview; Tab 13 – Affidavit of Lukas Lane-Geldmacher sworn 20 August 2020; Tab 14 – Affidavit of Lukas Lane-Geldmacher sworn 5 November 2020; Tab 15 – Affidavit of Lukas Lane-Geldmacher sworn 1 December 2020; Tab 16 – Affidavit of Lukas Lane-Geldmacher sworn 28 April 2022; Tab 17 – Affidavit of Lukas Lane-Geldmacher sworn 27 July 2022; Tab 18 – Notes of Lane-Geldmacher; Tab 19 – Notes of Lane-Geldmacher for SM addendum statement; Tab 20 – Occurrence enquiry log reports; Tab 21 – Notes of Nelson; Tab 22 – Affidavit of Lauren Fisher sworn 20 October 2021; Tab 23 – Affidavit of Lauren Fisher sworn 18 July 2022; Tab 24 – Notes of Fisher.
The three statements of SM were relied upon by the prosecution as a record of her proposed evidence at trial and to prove, for the purpose of the subject application, that she is fearful of the accused.[7]
[7] Exhibit VDP 1- Folder of Material from DPP, Tab 1- Affidavit of SM sworn 19 August 2020, Tab 2- Affidavit of SM sworn 27 August 2020, Tab 3- Affidavit of SM sworn 13 October 2020.
The statements of DBS Lane-Geldmacher and another police officer were relied upon to explain the circumstances of, and methodology employed, in taking the statements from SM and as further evidence of her fear of the accused and as to her willingness to give evidence.
Other documents tendered recorded police interactions, including with SM, and matters going to her credit.
Submissions of the Director of Public Prosecutions
Mr Slocombe, for the prosecution, submitted that the evidence provides ‘a compelling case for the proposition that…the witness SM is fearful of the accused, and…that fear is borne out of a genuine belief of physical harm…if she was to give sworn evidence at trial against the accused given her alleged observations of the charged offending’.[8]
[8] Prosecution Written Submission on Application pursuant to s 34KA of the Evidence Act 1929 dated 21 July 2022, [46].
It was submitted the prosecution had established the preconditions in s 34KA(1) and particularly, had established that SM holds a genuine ongoing fear of Mr Lynch. The prosecution pointed to the forceful control of Mr Lynch over SM, so as to prevent her going to the hospital to treat stomach pains on the day of the alleged offending and later to require her to abandon her vehicle near the Somerset Hotel, given its potential link to the alleged offending. Further, the prosecution pointed to the timing of police interactions with SM, after the provision of her statements, and a string of threatening text messages sent to SM by Mr Lynch about her co-operation with police.
As the preconditions had been established, the prosecution submitted, the exercise of the enlivened discretion required regard to be had to the risk the admission of the out of court statements would result in unfairness to the accused. The prosecution referred to authority concerned with the application of the general fairness discretion under s 34KD of the Evidence Act 1929, following a successful application under s 34KA of that Act, as relevant to exercise of the discretion.[9]
[9] R v Haines [2016] SASC 96; Mullen v the Director of Public Prosecutions (2019-2020) 136 SASR 274.
The witness statements of SM, it was submitted, are valuable as they would form a significant part of the prosecution case because none of the other direct witnesses identified the assailants in photographic identification parades. That meant, submitted the prosecution, the evidence of SM would be particularly important to prove identity, given she had an existing relationship with the accused and recognised them due to that association.[10] Further, it was submitted, SM was the only person who had a recollection of Mr Lynch’s alleged out of court statement as an admission of his direct involvement.[11]
[10] The prosecution also noted that SM additionally participated in a photographic identification parade and identified the accused Hassan-Judge; VDP 1, Tab 2- Affidavit of SM dated 27 August 2020, [2]- [8].
[11] VDP1, Tab 2- Affidavit of SM dated 19 August 2020, [10].
Further, it was submitted, the witness statements of SM would be relatively reliable. By way of example, the prosecution referred to the proposed evidence of SM that she had driven to the house with Ms Hassan-Judge in the front and Mr Lynch in the back and that DNA matches obtained from the front passenger and back seats supported that recollection.[12] Further, submitted the prosecution, the evidence of SM and other witnesses to the effect that Mr Lynch and Mr Vincent had a verbal disagreement on the phone, established the reason they attended at the house,[13] why the two accused were in the car[14] and the general circumstances of the fight that had resulted.[15]
[12] FSSA report of Rebecca Pinyon dated 1 March 2021, [4]; FSSA report of Rebecca Pinyon dated 11 June 2021, [2].
[13] Affidavit of Josh Staples dated 24 August 2020, [15]- [22]; Affidavit of Heathcliff Vincent dated 9 August 2020, [6]- [15].
[14] Affidavit of Josh Staples dated 24 August 2020, [23]- [27]. Affidavit of Nicole Checketts dated 9 August 2020, [13]- [15].
[15] Affidavit of Josh Staples dated 24 August 2020, [15]- [22].
Particularly, the prosecution directed my attention to evidence it submitted established the following: [16]
[16] Criminal Procedure Act 1921, s 123(4); Exhibit VDP 1, Tab 1- Affidavit of SM sworn 19 August 2020, Tab 2- Affidavit of SM sworn 27 August 2020, Tab 3- Affidavit of SM sworn 13 October 2020; Exhibit VDP 1, Tab 1- Affidavit of SM sworn 19 August 2020, [5], [6], [10], [15]. [28], [30], [44], [49], [50].
·Mr Lynch is a very violent, aggressive person who beats up his mates, or the mates of SM, for fun;
·anyone who gets on the bad side of Mr Lynch is in trouble;
·before this offending Mr Lynch had, for a period of time, a vendetta against SM and had been physically and verbally aggressive towards her;
·before this offending, Mr Lynch had bashed SM by punching and had verbally abused her and had shot at her head with a Gel blaster gun;
·before this offending, when SM had spent time with Mr Lynch, she had felt stuck with him and could not say ‘no’ to anything he asked;
·before this offending, Mr Lynch had hit a person called Andrew in the head with a sling shot and a 50 cent piece;
·after this alleged offending, SM stayed at a hotel and did not speak to or see Mr Lynch for about three days until on or around Tuesday 11 August 2020, when Mr Lynch found SM at the Highlander Hotel and stuck with her for about four days;
·SM is scared of Mr Lynch as he had threatened her and her family;
·SM is worried for her uncle as Mr Lynch knows he had previously told police where Mr Lynch was;
·SM believes Mr Lynch is capable of killing anyone;
·after this offending, when SM was not feeling well due to an ongoing medical problem with her stomach, Mr Lynch did not let her go to the hospital;
·after this offending, Mr Lynch told SM that if he is convicted he will put it all on her and that if it was not for her he would never have been there and put in that situation;
·after this offending, Mr Lynch told SM she had destroyed his whole life and was as good as dead and she had better keep him out of trouble;
·after this offending, SM did what Mr Lynch wanted and got rid of her car near to the Somerset Hotel in Para Hills, because it had been connected to this offending;
·after this offending, Mr Lynch sent to SM text messages as follows:[17]
[17] Exhibit VDP 1, Tab 14- Affidavit of Lukas Lane-Geldmacher dated 5 November 2020, Appendix C.
if you don’t answer you’re copping hard
Please don’t be a ap dog
Send me the addy of khodr or going to take it out on you wrong side SM
Quick
I’m in town
Hurry up bro you’ve done this to yourself you knew to contact me
Really picking that lebo dog over me faprk cooked
I’m going to go through your house and bash you ya fkn slut
Why the fuck would ne with khodr
Youll cop it hard dog
Fkn call me before I get you cunt
Hurry the fuck up while you have the change to resolve this how fkn dare you
Keeo talking until I get you cunt.
·on 24 February 2021, SM told DBS Lane-Geldmacher she had received a call from a voice she recognised as Mr Lynch who had said the words to the effect ‘Hey, how are you going? I hear you’ve been hiding from me. I’ll find you’ and that she ‘did not want to provide a statement about the contact she alleged to have had from Lynch over the phone’ and that ‘she was scared for her safety’ and could not give evidence;[18]
·on 4 June 2021, SM told DBS Lane-Geldmacher she was ‘in fear of her day-to-day life’; ‘doesn’t want to give evidence’; thinks if ‘she gives evidence, thing[sic] will get worse for her safety and that of her family’; and that she ‘would say that in Court she was under the influence at the time because she is scared’;[19]
·since the alleged offending, police have recorded interactions between the accused and SM establishing her general fear for her safety and the risk of reprisal from the accused and their associates and concerns for the safety of SM and the risk of reprisal from associates of Mr Hassan-Judge and Mr Lynch;[20]
·at a proofing session with the office of the DPP on 4 June 2021, SM said she would not give evidence, or if forced to give evidence, would say her statements were not true;[21] and
·on 8 November 2021, SM told DBS Lane-Geldmacher ‘[s]he was concerned that her statement had not been retracted’ and was told in response that the matter was still ongoing through court.[22]
[18] Ibid, [12], [10].
[19] Ibid, [16].
[20] Exhibit VDP1, Tab 20- Occurrence Enquiry Log Reports.
[21] Exhibit VDP 1, Tab 17, Affidavit of Lukas Lane-Geldmacher sworn 21 July 2022, [47].
[22] Exhibit VDP 1- Tab 17- Affidavit of Lukas Lane- Geldmacher sworn 21 July 2022, [47], [50].
As for the forensic disability occasioned by the loss of the common law procedural right to cross-examine, the prosecution submitted that did not in and of itself amount to good reason to decline the exercise of the discretion in this case.[23] The concept of forensic disadvantage, it was submitted, had to be considered broadly and by reference to the counterbalancing provisions in place. That is, the provisions which enabled the introduction of material relevant to SM’s credibility, which gave the ability to the trial judge to stop a case based on unconvincing out of court statements and, which preserved the operation of the unfairness discretion to exclude any of the evidence in the statements, in whole or in part. [24]
[23] Mullen v the Director of Public Prosecutions 136 SASR 274, [37].
[24] Evidence Act 1929, ss 34KB, 34KC and 34KD.
The prosecution- while submitting the discretionary matters enumerated in R v Haines[25] applied to the exercise of the discretion in this case- contrasted the facts in Haines. In Haines, it was submitted, the jury would have been presented with two inconsistent statements which, as the Court had found, would have given rise to unfairness.[26] In this case, submitted the prosecution, the three affidavits of SM are largely consistent and nor are they contrary to the evidence of other prosecution witnesses.
[25] Supra, [2016] SASC 96.
[26] Ibid, [48].
Finally, submitted the prosecution, the disadvantage to the accused could be mitigated in this case as they would be entitled to and could actually adduce evidence relevant to the reliability of the statements and of SM.[27]
[27] Evidence Act 1929, s 34KB; Mullen v DPP [2020] SASC 10, [29], per Lovell J; Particularly, the Director referred to the disclosure to the defence of documents concerning the credit of SM contained in ADP1, Tab 4- Antecedent Report dated 4 March 2021; Tab 5- Offender History Report of SM dated 21 June 2022; Tab 6- C0200002411 Facts of Charge document; Tab 7- C020000802 Facts of Charge document Tab 8 – C0200068754, Facts of Charge – C02100017254 – SM; Tab 9 – Facts of Charge – C02100004554 – SM; Tab 10 – Facts of Charge – C02100007474 – SM; Tab 11 – Facts of Charge – C02100014031 – SM; Tab 12 – Brief Overview;; The Director submitted that material, including a record of convictions for commercial drug offending, are not so significant as to set aside SM’s evidence as unreliable on its own because the fact she was involved in the drug subculture at the relevant times is a feature of the filed evidence of other witnesses, Prosecution Written Submission on Application pursuant to s 34KA of the Evidence Act 1929, dated 21 July 2022, [62].
Submissions of First Defendant- Deeon Robert Hassan-Judge
Mr Gaite, for Mr Hassan-Judge, premised his submissions in opposition to the application by identifying the core issues in this case as including: the identity of the person who had inflicted the stab wound; the identity of other participants in the altercation; what were the acts of those other participants in the altercation; and the concept of joint enterprise.
On that basis, it was submitted, the evidence of SM would be essential to establish some connection between the altercation and Mr Hassan-Judge. The statements of SM, it was submitted, would establish SM was in the driver’s seat, Mr Hassan-Judge was in the front passenger seat, Mr Lynch was in the rear passenger seat behind Mr Hassan-Judge and, that the other person was in the rear passenger seat behind SM.[28]
[28] Exhibit VDP1- Tab 1- Affidavit of SM sworn 19 August 2020, [16].
Importantly, submitted Mr Gaite, the statements of SM do not say Mr Hassan-Judge had participated in the altercation. In that respect, it was submitted, the prosecution intended to rely upon other witnesses who had given differing and disjointed descriptions of an altercation during which there had been at some stage a stabbing.[29] SM, submitted Mr Gaite, would be a favourable witness to Mr Hassan-Judge, as she does not say he had gotten out of the car.
[29] Ibid, [18].
There is a risk, it was submitted, if only the written statements of SM gave that evidence, that the jury may accord her evidence less weight than witnesses who testify in the traditional manner. That is, the jury would be left to compare the statements of SM, untested by cross-examination, with the evidence of witnesses who had described in person the altercation and the stabbing. That would, it was submitted, suffer on Mr Hassan-Judge a forensic disadvantage and ‘in considering whether leave should be given to admit the statements of SM the court must have regard to any risk that its admission or exclusion will result in unfairness to a defendant’.[30]
[30] Written Submissions of the First Defendant dated 19 August 2022, [33].
Further, it was submitted, ‘other measures’ would be available; any of the special arrangements regularly put in place.[31]
[31] Evidence Act 1929, s 13.
Finally, it was noted that s 34KA was derived from the Criminal Justice Act 2003 (UK), and submitted that cases from the United Kingdom considering that Act will be of assistance.[32]
[32] R v Horncastle and Ors [2009] UKSC 14; Riat, Doran, Wilson, Clare and Bennett v The Queen [2012] EWCA Crim 1509; R v Shabir [2012] EWCA Crim 2564; Criminal Justice Act 2003 (UK), s 116.
Submissions of Second Defendant- Ethan Joseph Lynch
Mr Allen, for Mr Lynch, also relied on those United Kingdom authorities. He conceded that, insofar as Mr Lynch is concerned, the pre-conditions in s 34KA(1)(a) and (1)(b) had been established. The contest in respect of the application, it was submitted, was whether the prosecution had satisfied the burden it bears under s 34KA(1)(c) and s 34KA(2)(e) to prove ‘that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement’.
The outcome of the application, it was submitted, would have great significance to Mr Lynch. Its success would mean Mr Lynch would face a trial where a significant witness against him- who is both alive and potentially available- does not give oral evidence.[33]
[33] Ibid.
It was submitted therefore that, ‘[t]he more central the evidence that is sought to be admitted as hearsay evidence is to the case, the greater the scrutiny that has to be undertaken to see whether or not it should be admitted as hearsay’.[34] Further, ‘[a]lthough fear should be widely construed’, it was submitted the prosecution must prove to the criminal standard that SM would not give evidence either at all or in connection with the subject matter of the relevant statement through fear and, that there is a causative link between that fear and the failure or refusal.[35]
[34] Shabir, supra, [64].
[35] Ibid.
Mr Allen submitted, on several bases, the prosecution had not met its burden in this case. First, because absent cross-examination on the voir dire, the association between SM and the accused persons at the time of the alleged offending could not be reconciled with the fear asserted. Particularly, it was submitted, because SM had said Mr Lynch had, prior to the alleged offending, been violent towards her, yet she had co-opted the two accused to attend with her at Ingle Farm. Further, while SM had said she feared Mr Lynch and he had threatened her and her family, there had been no detail provided of what had been the reason a threat had been made. Without cross-examination on the voir dire about the asserted threats, it was submitted, there was no context provided to the court in respect of her professions of fear, and they should be rejected.
Having regard to the content of the out of court statements, Mr Allen submitted it was not in the interests of justice to grant the application. He submitted much of the information within the statements would be prejudicial: descriptions of violence inflicted by Mr Lynch; Mr Lynch being on the run; why SM had gone to Ingle Farm with at least three others; about the knife she had previously seen Mr Lynch with; and her involvement in selling drugs to Mr Vincent. Further, it was submitted, while it was accepted SM had been an associate and had known Mr Lynch, her evidence would be very important because the prosecution would use that to fit with the descriptions given by others at the time of the altercation. Further, it was submitted, SM had described the alleged admission to the stabbing differently in her two affidavits.[36]
[36] Haines, supra, [48]; Affidavit of SM sworn 19 August 2020, [26]; Tab 3- Affidavit of SM sworn 13 October 2020, [43] and [44].
As to unfairness generally, it was submitted that it would be unfair if the jury was told, in directions given by the trial judge, the reason the prosecution had tendered the documents.[37]
[37] Shabir, supra, [64].
As for ‘any other measures that could be taken by the court in relation to the relevant person’, it was submitted that s 13 of the Evidence Act 1929, has been regularly used to strike a proper balance. This case, submitted Mr Allen, is clearly one of those cases.
Consideration
The provisions enacted in s34KA of the Evidence Act 1929, were introduced to respond to witnesses being intimidated and threatened and the need to ensure they have the best protection the law can provide.[38] Specifically, s 34KA was modelled on s 116 of the Criminal Justice Act 2003 (UK), and has granted courts a discretion to give leave to allow out of court statements to be admissible at trial. As the Supreme Court has noted, a successful application would result in ‘[t]he loss of the procedural right to cross-examine a prosecution witness in open court plac[ing] an accused in a position of significant forensic disadvantage.’[39]
[38] Statutes Amendment (Serious and Organised Crime) Bill, First Reading Speech 1 March 2012.
[39] Haines, supra, [41]; Mullen, supra, [26]-[27] and [37]; To address that procedural loss safeguards in the Evidence Act 1929, allow for evidence relevant to the credibility or reliability of the relevant witness to also be admitted and for the judge to stop a case where it is based on an unconvincing out of court statement and to exercise a statutory and common law discretion to refuse to admit such evidence if the case for excluding it substantially outweighs the case for admitting it, having regard to its value. Evidence Act 1929, ss 34KB, 34KC and 34KD.
Before the discretion can be exercised, three pre-conditions must be satisfied.[40] First, the character of the evidence contained in the statements must be such that it would be admissible if given orally. Second, the witness must be identified as the maker of the statement and, third, the court must be satisfied that through fear the witness will not give oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement.[41]
[40] A fourth requirement addresses where the maker of the statement was not competent at the time the statement was made, Evidence Act 1929, s 34KA(6).
[41] Evidence Act 1929, s 34KA(2)(e)
There is no dispute the first two pre-conditions have been satisfied in this case. It is in dispute whether through fear SM will not give evidence at the trial on 17 October 2022, either at all or in connection with the subject matter of her out of court statements. The resolution of that prospective dispute, to establish the last pre-condition to the exercise of the discretion granted by the Parliament, is a question of fact.
In criminal trials, questions of fact frequently arise for determination by a judge before a decision is made whether to admit evidence for the consideration of a jury. The ordinary position is that the proof of conditions precedent must be established on the balance of probabilities.[42] It was submitted in this case that I must be satisfied of the third precondition- that through fear [SM will] not give… oral evidence in the proceedings’- beyond reasonable doubt.[43]
[42] Wendo v The Queen (1962-63) 109 CLR 559, [ 572].
[43] Evidence Act 1929, s 34KA(2)(e); Shabir, supra, [64].
I do not accept that the prosecution bears the onus to establish the requisite fear beyond reasonable doubt. There is no textual support in s 34KA for the displacement of the ordinary position. Further, no reason was put, other than a reference to what has been said in the courts of an overseas jurisdiction, as to why I should depart from the longstanding approach in respect of applications of this nature.[44] I consider that the prosecution bears the onus to establish the necessary facts on this application, on the balance of probabilities.
[44] Ibid.
While s 34KA is drafted in the present tense (‘does not give’), this is a pre-trial application brought prospectively. I have therefore proceeded on the basis that I must be satisfied that through fear SM will not attend at the trial to commence on 17 October 2022.
There is evidence which I accept, for the purpose of this application, sufficient to establish that SM is fearful that she will be harmed if she gives evidence in this case. It is not in dispute that while SM was in her car out the front of the house, Mr Staples was stabbed by someone; a very violent act. There is also evidence SM knew the accused. Further, DNA samples taken from the front and back seats of the car could be used to infer that the accused were at the scene. Finally, the text messages sent by Mr Lynch to SM are of a threatening nature, such as to reasonably engender fear on her part about cooperating with police and giving evidence in this matter.
While I am satisfied that SM as of 8 November 2021, when she last spoke with DBS Lane-Geldmacher, was fearful of giving evidence in this case, it is unsatisfactory that the last contact about which I have been made aware occurred late last year. Given the potential consequence if this application is granted, I would have expected the prosecution to have provided more up to date evidence about her current state of mind or intention in respect of giving oral evidence at trial.
In all the circumstances, I therefore consider the evidence to be insufficient to allow me to conclude to the required standard that through fear SM will not give oral evidence at trial on 17 October 2022. I am, accordingly, unable to find on the balance of probabilities that SM will not give evidence at the trial on 17 October 2022, either at all or in connection with the subject matter of her out of court statements.
If I had been sufficiently satisfied of that pre-condition, the discretion to admit the out of court statements in the interests of justice would have been enlivened. That would have required me to have regard to: any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and, the statements contents; and, any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross-examine the person); and, any other measures that could be taken by the court in relation to the relevant person; and any other relevant circumstances.[45]
[45] Evidence Act 1929, s 34KA(2)(e).
While it is unnecessary for me to deal with each of the matters relevant to the exercise of the discretion, I would have expected the prosecution to have provided up to date evidence of contact with and the expressed (or not) intentions of SM for that purpose also. Further, it is surprising that there has been no evidence put before the court as to whether SM is aware that special arrangements can be made to give her evidence at trial, and as to her attitude in that respect.[46]
[46] Ibid, s 13.
The application is dismissed.
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