R v Payam (No.2)
[2015] NSWSC 1820
•09 December 2015
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Payam (No.2) [2015] NSWSC 1820 Hearing dates: 30 September 2015 Date of orders: 09 December 2015 Decision date: 09 December 2015 Jurisdiction: Common Law Before: Acting Justice Mathews Decision: Evidence inadmissible
Catchwords: CRIMINAL LAW – evidence – hearsay - whether exception applies - Evidence Act 1995 Legislation Cited: Evidence Act 1995 Cases Cited: R v Ambrosoli [2002] NSWCCA 386 Texts Cited: Nil Category: Procedural and other rulings Parties: Crown
Kazem Mohammadi Payam (Offender)Representation: Counsel:
Solicitors:
T Thorpe (Crown)
M Ierace SC (Offender)
Director of Public Prosecutions (Crown)
Oxford Lawyers – Z Khatiz, Solicitor (Offender)
File Number(s): 2014/200505 Publication restriction: Nil
Judgment
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The offender pleaded guilty to the murder of Nabil Naser on 8 July 2014. During the course of the sentencing proceedings the Crown sought to rely on the evidence of two witnesses to the effect that they had been told by the deceased that the offender had previously threatened him. This evidence was objected to by Mr Ierace SC, who appeared for the offender, and a voir dire hearing took place in which the two witnesses gave evidence of their conversations with the offender. Oral submissions then followed, after which I ruled the evidence inadmissible. I said that I would deliver my reasons later. These are my reasons for rejecting the evidence.
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The first witness, Mr Hamid Jaafar, was a cousin of the deceased who was living in Melbourne. He said that the deceased came and stayed with him on two occasions in 2014: first in January, when he stayed for three days, and again for one week, between 28 June 2014 and 5 July 2014, very shortly before his death. On the second occasion he brought his son, T, with him. Mr Jaafar said that on the first occasion, in January 2014, the deceased told him that the offender was in a relationship with his ex-wife, and that he kept threatening him, and that he had threatened him on two or three occasions. On the second occasion he said that the offender would be in trouble if he took any steps against him as he, the deceased, had written a letter to his lawyer and the police, telling them about the offender’s threats.
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The second witness, Mr Khalid Mohammad, was also a cousin of the deceased and who lived in Melbourne. The two of them kept regular contact over the telephone. He said that about a year before the murder the deceased told him that the offender had threatened him. The witness advised him to go to the police, and the deceased later telephoned him and told him that he had done so, and the problem had been resolved. He also said that the deceased told him that the offender had said to him:
“If you keep seeing your son and making my girlfriend unhappy, I am going to cut your head off.”
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There was a degree of uncertainty, from Mr Mohammad’s evidence, as to whether he was told about these threats in the one conversation, or whether there were two occasions on which the deceased told him about the threats. When asked in cross-examination about whether his memory of these conversations was better in July 2014, when he made a statement to the police, the witness answered:
“It has been more than a year, and I’m not sure even what I had for breakfast.”
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The evidence of these alleged threats was tendered to support the proposition that the offender had been planning this murder well in advance. Accordingly, it is hearsay and is thus prima facie inadmissible. The Crown relied upon the exceptions contained in s 65 of the Evidence Act 1995. That section, as relevant here, 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:
(a) …
(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;”
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After hearing the evidence, the Crown accepted that there was nothing to establish that these representations were made by the deceased shortly after he had received the alleged threats, and therefore paragraph (2)(b) had no application. The submissions then centred upon paragraph (2)(c), and particularly whether there was evidence which made it highly probable that the representations were reliable. Mr Ierace pointed out, and the Crown accepted, that it is impermissible to use “bootstraps” reasoning, namely that the fact that the offender did indeed murder the deceased supports the reliability of the latter’s representations that the offender had threatened to kill him.
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Both counsel were in agreement that, in accordance with the judgment of Mason P in R v Ambrosoli [2002] NSWCCA 386, the focus must be upon the circumstances surrounding the making of the representation, rather than on the reliability of the asserted facts.
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In this case, Mr Jaafar said that the deceased told him that he had written a letter telling his lawyer and the police about the offender’s threats. However, there is no evidence of any letter written to the deceased’s lawyer. The deceased did make one complaint to the police, on 7 March 2014, but that was in relation to a threat said to have been made by the offender earlier the same day. There was no complaint made about other threats from the offender. Accordingly, there is no objective evidence to support the reliability of these representations.
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Mr Ierace pointed out that these representations were made by the deceased in circumstances where there had been an acrimonious split between the deceased and his former wife, who had then commenced a relationship with the offender, and the acrimony had then spread to the relationship between the two men. Indeed, an apprehended violence order had been taken out against the deceased on behalf of his former wife, his son and the offender. Mr Ierace submitted that it is not uncommon, in such a situation, for one person to make allegations about another which might not always be correct. I accept this to be the case. It is a highly relevant matter in the present circumstances, and potentially affects the reliability of the deceased’s assertions.
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Paragraph 65(2)(c) requires the Court to be satisfied that the relevant representations were made in circumstances which make it “highly probable” that the representation is reliable. In the circumstances of this case, for the reasons given above, I could not be satisfied of this matter. In the case of Mr Mohammad, his admittedly poor memory constituted an additional reason for having serious reservations as to the reliability of his account of the representations said to have been made by the deceased.
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It is for these reasons that I ruled the evidence to be inadmissible.
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Amendments
11 December 2015 - Incorrect counsel on coversheet
Decision last updated: 11 December 2015
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