R v Quintana (No. 1)

[2020] NSWSC 23

Supreme Court

New South Wales

Medium Neutral Citation:	R v Quintana (No. 1) [2020] NSWSC 23
Hearing dates:	24 and 28 January 2020
Date of orders:	28 January 2020
Decision date:	30 January 2020
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) Leave for the giving of evidence by AVL by Nadine Tairi is refused.
Catchwords:	CRIMINAL LAW – evidence given by audio visual link – evidence given from location outside Australia – compellability of witness located outside Australia – critical eye witness – credibility issues – multiple versions given – witness relevant to self-defence issue
Legislation Cited:	Trans-Tasman Proceedings Act 2010 (Cth)
Category:	Procedural rulings
Parties:	Regina (Crown) Rey Quintana (Accused)
Representation:	Counsel: D Daleo (Applicant) A Evers (Respondent) Solicitors: Solicitor for Public Prosecutions (Applicant) Oxford Lawyers (Respondent)
File Number(s):	2018/00067200
Publication restriction:	Nil

Judgment

1. The accused has been charged with the murder of Thomas Halakoa, also known as Thomas Booth, on 28 February 2018 at Tregear in New South Wales. In addition to the accused and the deceased, Tekawau Opai and Nadine Tairi were present in the apartment where it is said the stabbing took place.

2. The Crown has made application pursuant to s 50 of the Trans-Tasman Proceedings Act 2010 (Cth) for the evidence of Ms Tairi to be taken by AVL from New Zealand without any compulsive process such as a subpoena being able to be issued. This application was first served on the accused’s legal representatives on 24 January 2020.

3. The accused had been arraigned before Fullerton J on 3 May 2019 and pleaded not guilty to murder. The matter was listed for trial on 3 February 2020. Nothing was raised by the Crown regarding any difficulty with the securing of attendance or the locating of any Crown witness.

4. On 6 September 2019 the matter again came before Fullerton J in the arraignments list to advise on the identity of the trial judge. The hearing date was confirmed, as was the three-week estimate. Nothing was raised by the Crown regarding any difficulty with locating or securing the attendance of any Crown witness.

5. On 12 December 2019 the matter was listed before me to determine whether there were any pre-trial issues. This was the first time the Crown shared with the Court that there was any issue about securing the attendance of Ms Tairi. During that directions hearing Ms Daleo, the Crown Prosecutor appearing, agreed that Ms Tairi was an important witness and that the Crown position was that she should be present in person to give evidence. I was also informed that the trial was likely to finish well within the three-week estimate.

6. The matter was listed again before me on 13 December 2019 to clarify with precision the active steps being taken to secure the attendance of Ms Tairi and to ensure that the trial remained on track to commence as listed, before a jury, on 3 February 2020.

7. I was assured by Ms Daleo that once I “received the material” addressing the securing of the attendance of Ms Tairi, that I would “see that everything was well in hand” and that “in the light of that material, the Crown submission is that the Court will not be concerned in relation to the extradition of Ms Tairi”.

8. I ordered an affidavit be filed and served addressing in detail the steps taken and yet to be taken that were necessary to secure the attendance of Ms Tairi. An affidavit of Nathan Johnston set out those steps, and concluded as follows:

“[21]   From discussions with Detective Sgt Rynehart I understand that he has now submitted a report formally requesting the extradition of Ms Tairi along with the Director’s undertaking. From this point, it is anticipated that the process will take a further 2 to 4 weeks for the extradition request to be submitted to Interpol, Wellington, at which point Ms Tairi can be provisionally arrested. I also understand that Ms Tairi will then be provided a two-week period in which to seek legal advice as to whether she will challenge the lawfulness of the extradition. If she does not challenge the extradition, I understand Ms Tairi will be transported to New South Wales. If she does challenge the extradition, I anticipate the Crown will make an application to court as a witness to give evidence by audiovisual link from New Zealand.”

9. On 19 December 2019 Mr Kimbell appeared for the Crown and it was noted by the Court that the matter “is as on track as it can be”.

10. Unfortunately it is now evident that the information provided to Mr Johnston was inadequate as to the multiple steps and technical aspects of extradition that were still required. It seems also that despite multiple attempts by Mr Johnston to chase up what was happening, the necessary documentation that had to be prepared by New South Wales Police before New Zealand Police could commence to arrest and extradite, had multiple steps to be taken before it reached the necessary approval by the New South Wales Police Minister. That approval was not secured till 23 January 2020, although I note approval was provided immediately, as was the prior approval of the Police Commissioner on 22 January 2020.

11. On 24 January 2020 an application was served by the Crown upon the legal representatives for the accused, seeking leave pursuant to s 50 of the Trans-Tasman Proceedings Act for Ms Nadine Tairi to give evidence from New Zealand by way of audio-visual link.

12. Obviously this application coming so late, and against a background of late, disorganised and inadequate efforts to secure a fundamental witness (to which I will refer), causes great consternation, particularly when the accused is in custody, has been awaiting trial for almost 2 years, and was provided with a hearing date 10 months ago with no hint of this problem until six weeks before the trial was due to start. I add to this situation that not only did Mr Evers, counsel for the accused, make it clear in December 2019 that he required the witness in question to be present in person, the Crown Prosecutor with the conduct of the matter agreed with that position, and pressed upon the Court, on 13 December 2019, that it ought not be concerned that the attendance of the witness could not be secured.

13. This is obviously a highly unsatisfactory position.

14. The application was opposed, and for the reasons that follow, I determined at the end of the hearing of the application on 28 January 2020 that the application should be refused. Very short reasons were outlined with written reasons to be provided. These are my reasons for making that decision.

The Crown Case

15. The accused is almost 59 years old. At the time of the alleged murder he was living in a unit in Tregear. At about 4:15pm on 28 February 2018, the deceased Mr Opai and Ms Tairi attended the block of units. There is some suggestion that the accused was duped into opening the door for Ms Tairi with Mr Opai and the deceased hiding out of sight, but then the deceased and Mr Opai also entered the unit.

16. The group smoked methylamphetamine or “crystal meth” via an ice pipe. Mr Opai and the deceased left the unit for a short time. When they returned they went into the accused’s bedroom where the accused was and Mr Opai put the accused in a head lock and restrained him on the bed. The accused remonstrated and the deceased began taking some of the accused’s belongings and putting them into a bag.

17. Ms Tairi tidied some items in the apartment and took them outside to the bin and then returned to the unit to see that the accused face was “now unrecognisable”. Mr Opai let go of the accused and ran from the unit. The deceased remained in the bedroom looking through drawers of the dresser and placing items into the bag he had. The accused got off the bed pulled out a knife from an unknown location, jumped over the bed and stabbed the deceased once to the back. The deceased ran from the unit and Ms Tairi followed him out.

18. The Crown Case Statement then deals with the aftermath, including the deceased struggling to get down the stairs, collapsing, and being assisted by additional people who were strangers and transported in a taxi to hospital where he was pronounced dead.

19. The Crown Case Statement sets out the multiple versions by the two witnesses Ms Tairi and Mr Opai as to what they say occurred.

20. Critical to this application is the fact that Ms Tairi had given four different versions at the time the Crown Case Statement was finalised, and has now, in the last week given a fifth version.

21. The first version was to a police officer whilst she was standing outside the hospital watching hospital staff working on the deceased; the second was a version she gave to another police officer at the hospital; the third was via an electronic statement on 28 February 2018 and was far more detailed and lengthy and the fourth version was given on her arrest on 27 March 2018 on a charge of robbery.

22. Further complicating the situation is that in the affidavit material placed before me on this application, the OIC, Detective Sergeant Rynehart took yet a further version from Ms Tairi by telephone on 21 January 2020. That has, as I understand it, been forwarded to her to verify and adopt.

23. In the first version given to Constable Hannah Males, Ms Tairi said: “We were on the piss in Mount Druitt outside of the IGA in Tregear. He has already been drinking Wild Turkey and I said come on drink more and then we started drinking outside of the IGA on the seats and then this Filo guy started yelling at Thomas (the deceased) and then you know” (motioning with a closed right fist in a swinging motion towards her chest). When police asked her what did that mean, Ms Tairi said “Well, the guy stabbed him”.

24. The second version was given to Detective Senior Constable Whiteley at the hospital. Ms Tairi said: “We went to a mate’s house to have a smoke and he and Rey got involved in an argument. They were in the bedroom when I heard the fighting and I walked in and heard Thomas say “Ah, he got me. He got me”. Thomas then ran out and I ran out after him. Thomas ran for a bit and then he collapsed…”.

25. The third version was in the electronic statement taken on 28 February 2018. Ms Tairi said that she and the deceased went to the accused’s house to get ice and “We ended up sitting there having a toke with him”. At one point she went to the bathroom and when she came out the accused was “going off” in his language and the deceased was trying to calm him down. Then the accused was telling them to leave and then the accused calmed down and then he “went off” again at the deceased. She was sitting on the lounge and the accused and the deceased were in the accused’s bedroom and then “Boom. It started up again”. She heard a lot of arguing and yelling. She walked up the hallway and looked in the bedroom and saw the deceased and the accused “rumbling on the bed”. Then she saw the accused stab a knife into the deceased’s back, then the deceased came running out saying “He got me. He got me”. She ran after the deceased.

26. The fourth version was given on 27 March 2018 in electronic interview. After confirming that the majority of her last interview was true and correct, Ms Tairi said that she would “tell the whole story”. She said that she had attended with the deceased and Mr Opai. She says that Mr Opai and the deceased went into the accused’s bedroom. The accused was in the bedroom and she heard the accused say “No no no” and “Don’t do that” so she walked to the room and saw Mr Opai holding the accused on the bed in a headlock and the deceased placing a number of the accused’s belongings into a brown bag. She said that “the boys” yelled at her to “Get the fuck out” and “Everything is going to be okay”. She stood there in shock and walked out of the room. She tidied things in the lounge room and put them in the bin outside the apartment and when she returned she saw that the accused had been assaulted and his face was “unrecognisable”. She said she told them “Just please stop. Stop” and then Mr Opai got up and ran from the unit. She told police that the deceased was still looking through the drawers of the dresser and taking items from it and putting them in the brown bag and at this point she saw the accused get off the bed, pull out a knife from an unknown location, jump over the bed and stab the deceased once to the back. She and the deceased then ran from the unit with the possessions in the brown bag.

27. Ms Tairi said that she did not tell police at the hospital that Mr Opai had been present when the incident took place and she did not tell police that Mr Opai was in possession of the bag containing the items taken from the accused.

28. Whilst not yet in the form of a police statement but placed before me in the affidavit material on this application, Detective Sergeant Rynehart says in his statement of 22 January 2020 that on 21 January 2020, Ms Tairi told him that she was concerned about the deceased’s family being present at the trial, in particular the deceased’s brother and that the brother blames Mr Opai for what happened. She said that she did “know a little bit more” but “didn’t tell them before because she was scared”. She mentioned the accused’s drug dealing and that he had been robbed a few times and that there was animosity between the accused and the deceased and his brothers. She confirmed that they had smoked some ice and that “the boys” said they were going to go and get some money, although to her it didn’t make sense as they had won some money on the pokies. She says that the accused went into his bedroom and “the boys” came back and went straight into the accused’s room and that is when they bashed him. She said she went to stop what was happening. “When I got to the bedroom door (Mr) Opai ran out of the unit. I saw the deceased was still in the room and the accused was on the bed”. She said that the accused is “known for trying to stab people before” so “I knew what was going to happen”. I said to the accused “Don’t do it”. He got up off the bed and I saw he had a knife. I yelled at him not to do it. I saw the accused go to the deceased and stab him. I was telling him not to do it. That’s when we ran out of the unit”.

29. She was then asked: “Okay so are you telling me that you saw Ray stab Thomas?” and she replied “Yes”. She was asked: “Where did he get the knife from?” She said: “I don’t know, he just had it when he got up off the bed”. She was asked: “And was TK (Mr Opai) still in the unit?” She said: “God, no. He was out on the street”.

30. Further complicating the situation is the fact that Mr Opai has also given two versions. The first was on 1 March 2018 when police attended his address and he was arrested and cautioned. Relevantly he told police that he was present at the unit with Ms Tairi and the deceased and that an argument started between the deceased and the accused about money owed by the deceased to the accused. The accused pushed the deceased and then the deceased pushed the accused back and then he “whacked him” and “they were into it”. Mr Opai told police that at the time the accused pulled out a knife from somewhere and he “just started swinging it” and that it was at this time he (Mr Opai) started punching the accused. He punched the accused about four times to the head and that after some time of fighting he pulled the deceased away saying “come on, let’s go”, and the accused stabbed the deceased in the back.

31. A second version given by Mr Opai in very long ERISP on 8 March 2019 included the detail that when they went into the unit they all smoked ice and that the accused is a drug dealer and sells the drug ice and that “things started off friendly” but once the accused and the deceased went into the accused’s bedroom “that’s where everything happened”. The accused and the deceased were having a discussion about money that the accused owed to the deceased and the accused told the deceased that he did not have the money then there was a physical fight between the accused and the deceased in the accused’s bedroom. He said that at this point, he and Ms Tairi were in the lounge room of the unit and the accused “pulled out a knife from somewhere”. He then went over to the accused and grabbed him in a chokehold position while the accused was holding the knife and punched him in the head. While he was holding him in the chokehold, the accused swung the knife and struck Mr Opai in the left forearm and at this point he (Mr Opai) let go and ran outside of the unit.

32. Mr Opai told police that he went over to the bedroom once only, and that he saw the accused pull out the knife and he “wanted to defend” the deceased from the accused. He told police that he did not see any physical altercation between the accused and the deceased prior to the accused pulling out the knife. He also said that he did not see the accused stab the deceased because he had left the unit at that point but he saw the accused a short time later stumbling out of the door. (This seems to be a reference to the deceased).

33. Mr Opai also told police that he did not see the deceased take anything from the accused’s unit and that Ms Tairi must have had the bag containing the taken items. He also says he never told anyone about how the stab wound was inflicted on his arm, because he did not want to put himself at the scene, and when he went to hospital a few days later to be treated, he told hospital staff he sustained the wound as a result of a motorbike accident. He also said he had to have surgery in relation to the wound on his arm.

34. Mr Opai is in custody having been sentenced for robbery arising from these events and I have been informed that he will be called to give evidence at the trial.

35. Obviously the difference in accounts, and the timing at which it is said the knife was introduced by the accused, are all critical factual matters that need to be placed before the jury and examined probably by extensive cross-examination of witnesses so that the jury can make the necessary findings. Ms Tairi’s account is obviously critical to the issue of self-defence and the accused’s potential chance of acquittal.

Ms Tairi’s previous failure to cooperate with the New South Wales legal system and efforts to locate her and secure her attendance to date.

36. As set out in the affidavit of Mr Johnston of 17 December 2019, Ms Tairi was charged with aggravated robbery on 2 March 2018 and was refused bail by police.

37. On 5 June 2018 she was granted bail in the Supreme Court on conditions which would obviously have included, at the minimum, that she is required to appear at any proceedings for her offence.

38. She failed to appear at the Penrith Local Court on 28 September 2018 and an arrest warrant was issued, although the date of its issue has not been included in Mr Johnston’s affidavit.

39. On 8 March 2019, the OIC obtained information that Ms Tairi was living at an unknown location in Western Australia. It is stated that the OIC “commenced making enquiries” to attempt to locate her in Western Australia but these enquiries are not specified.

40. On 24 April 2019, the previous solicitor with carriage of the matter was told that the police were unable to locate Ms Tairi. The Court was not informed and the hearing date obtained despite this position.

41. On 30 July 2019, the OIC continued to make enquiries attempting to locate Ms Tairi, however the details of those inquiries are not specified. It is stated that between 30 July and 15 August 2019 there were enquiries made in Western Australia and that there were other efforts made to find her, but those efforts and what form they took are not specified.

42. On 8 November 2019 the OIC told - presumably Mr Johnston although this is not clear- that Ms Tairi had still not yet been located.

43. It was not until 14 November 2019 that the OIC made the necessary enquiry to determine whether Ms Tairi was still in Australia, and he was then told she had actually left the country on 6 April 2019 for New Zealand.

36. It was not until this time that any efforts were made to track Ms Tairi down in New Zealand. The Court still was not informed.

37. There were then further steps taken regarding a necessary undertaking from the Director of Public Prosecutions regarding undertaking to prosecute. This was not formalised until 13 December 2019.

38. Mr Johnston deposes to steps taken after 13 December 2019 which frankly indicate spasmodic, inadequate and insufficiently urgent steps taken by New South Wales police to complete the necessary documentation and processes to secure extradition of Ms Tairi. Those processes were not completed until 28 January 2020.

Legislation and discretion to grant the application

47. Section 50 of the Trans-Tasman Proceedings Act provides for application for the giving of evidence from New Zealand:

50  Remote appearances related to remote evidence

(1)  The Australian court or tribunal may, on application by a party, give leave for:

(a) the giving of evidence; or

(b) the examination of a person giving evidence under paragraph (a); or

(c) the making of submissions relating to the giving of evidence under paragraph (a);

from New Zealand in one or more hearings related to the proceedings

(d) the remote appearance medium specified by the court or tribunal; or

(e)  if the court or tribunal does not specify a remote appearance medium - either remote appearance medium.

…

(2)  The Australian court or tribunal must not give leave unless it is satisfied that:

(a) the evidence, examination or submission can more conveniently be given or made from New Zealand; and

(b)  if the court or tribunal intends to specify a remote appearance medium - that remote appearance medium is, or can reasonably be made, available; and

(c)  if the court or tribunal does not intend to specify a remote appearance medium - both remote appearance mediums are, or can reasonably be made, available; and

(d)  it is appropriate to give the leave.

48. The test seems to be simply that I can order evidence to be given in this way provided the requirements of s 51 of the Act are met regarding appropriate equipment allowing persons at both locations to see and hear the person appearing remotely, but that I must not give leave unless I am satisfied that the evidence can “more conveniently” be given from New Zealand. Neither counsel provided me with any authority as to how I should interpret the test “more conveniently”.

49. The affidavit of Mr Johnston confirmed that a link can be established and that New Zealand police officers were willing to assist Ms Tairi to travel to and from the AVL equipment location and that appropriate Court support personnel will also be available if required. It was also confirmed that Court 5 at the King Street complex had capability to establish an AVL. The affidavit said nothing about the arrangement of appropriately objective, qualified personnel to ensure relevant complete documents and other items were available in New Zealand as needed.

Submissions

50. The Crown Prosecutor Ms Daleo submitted that I ought to grant leave because Ms Tairi cannot be subpoenaed because of the effect of s 36 of the Trans-Tasman Proceedings Act. As I understand the position, Mr Evers agrees with this interpretation as do I. This means any evidence Ms Tairi gives is under no compulsion of this Court and is entirely reliant on her cooperation.

51. In a statement of the OIC, a conversation he had with Ms Tairi on 21 January 2020 is noted as follows:

OIC:   “I am guessing that Jocelyn has told you why I needed to speak to you?”

TAIRI:   “Yes she did I don’t want to come back for obvious reasons but I’m happy to give evidence over the phone or whatever”

OIC:   “That’s fantastic. If the court allows we would ask you to give evidence by AVL which is video and audio is that okay?”

TAIRI:   “Yes”

OIC:   ”Okay. The court matter is back in court tomorrow so when I know if the judge will allow you to provide evidence over AVL I will let you know”

TAIRI:   “What day will I be needed?”

OIC:   “The court matter is listed for a number of weeks so I won’t be able to tell you until closer to the date. The court matter starts on third February but I will let you know what happens tomorrow.”

52. I have not been informed by affidavit material as to the extent to which Ms Tairi is aware that extradition processes have been commenced against her in New South Wales and discussions had with New Zealand police officers to that effect. There is nothing in the conversation deposed to that indicates that Ms Tairi has been informed that she will be cross-examined at length or that she has been told how long she will be required to participate in the hearing.

53. Ms Daleo argued that the conversation referred to above indicated Ms Tairi would cooperate with this Court’s processes. She submitted that the affidavit deposes to all the steps that have been taken and that it is evident that extradition “cannot happen in under a minimum of six weeks” and this means that Ms Tairi cannot be brought to New South Wales in time to give evidence at the trial.

54. Ms Daleo noted that Ms Tairi is a key witness, and that the trial cannot run without her evidence.

55. Ms Daleo also submitted, in the absence of any specific evidence at all about this point, that Ms Tairi will challenge the extradition and that I should infer that is the position by the attitude she expressed to the OIC that she would not come back to New South Wales willingly.

56. Mr Evers argued that Ms Tairi was a controversial witness to say the least and that none of the process proposed compelled her to cooperate. At any point she could leave the AVL and this Court could do nothing to stop her. He argued that it is likely that she will be challenged extensively under cross- examination. She is not subject to any contempt power if she refuses to answer any questions and there is no authority of the Court to hold her in the AVL environment. She may not return after a break. All these things were potentially ones that would create difficulty in the trial.

57. Second, the jury needs to be able to assess credibility and this is less readily able to be done where the person is only available on screen and not in person and where what is shown on AVL may well be a limited image of the witness from the shoulders up.

58. Various versions of events have been recorded, some on transcript, and it is likely Ms Tairi will be taken to various parts of those transcripts and will need to be shown how her version has changed.

59. Ms Tairi may also need to mark on a diagram where people were at various times during the circumstances relevant to the stabbing. The process of marking documents and creating exhibits is very fraught in those circumstances.

60. In response Ms Daleo submitted that credibility can be and is assessed over AVL and this is commonly done in Courts dealing with victims of sexual assault and that there are ways to manage documents that are not physically in the Court room when witnesses give evidence by AVL.

61. Ms Daleo also argued that under the New Zealand Evidence Act s 179 there was process by which an Australian Court could have an uncooperative witness prosecuted for contempt. However I consider there are a number of problems with the operation of s 179 in Ms Tairi’s circumstances. The fact that the Court can bring proceedings afterwards for lack of cooperation does not deal with the immediate problem of lack of cooperation should Ms Tairi cease to cooperate or fail to cooperate in a trial that I have determined must run before a jury.

Decision

62. Undoubtedly Ms Tairi is a critical witness. Ms Daleo said as much when this issue with Ms Tairi’s availability was first raised before the Court in December 2019. Ms Daleo also said that it was her view that this witness should be present to give evidence in person. The alteration in agreed attitude only seems to have arisen once it became evident that the NSW Police had not taken the necessary steps to ensure timely extradition and the NSW Police and the Crown had not, during 2019, taken adequate and necessary steps to ensure this critical witness was available for the trial.

63. Reliance upon the cooperation of a witness who has failed to comply with bail conditions and left Australia so that she could avoid cooperating with the processes of justice in this State gives me absolutely no confidence that Ms Tairi would in fact cooperate, without compulsion, with giving evidence and being cross-examined in these proceedings.

64. Ms Tairi has given now five different versions of what she saw and a number of those versions indicate that she was prepared to lie to figures in authority about what happened in circumstances where she knew a man had been stabbed and was either fighting for his life or deceased.

65. Once the trial starts before the jury, intermittent, or lack, of cooperation by Ms Tairi with attendance, examination and cross-examination will cause the trial to miscarry.

66. It is evident from the history of the matter that there has been unsatisfactory and inadequate attention to the necessary steps to ensure the matter was ready for trial. It is not the accused’s fault that the Crown and/or the NSW Police have failed to attend to their obligations.

67. In my view, to ensure adequate cooperation and the necessary assessment of the credibility of Ms Tairi, she needs to be called in person.

68. The affidavit material tendered in support of the application does not in my view support the submission that it is a fait accompli that Ms Tairi cannot be brought to New South Wales in less than six weeks. In my view attempts should continue to expedite the extradition processes that have already been significantly advanced now.

69. There is simply no parallel that can be validly drawn between the circumstances of a vulnerable witness giving evidence in a sexual assault case by pre-recorded interview or AVL and an adult eyewitness who was present for circumstances leading up to and surrounding the stabbing death of a person 2 years ago.

70. The application for Ms Tairi to give evidence by AVL is refused.

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Decision last updated: 03 August 2023