R v Tangi (No 2)

[2020] NSWSC 537

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tangi (No 2) [2020] NSWSC 537
Hearing dates:	20-21 November 2019
Date of orders:	21 November 2019
Decision date:	21 November 2019
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Evidence of Video Recorded Statement admissible.
Catchwords:	EVIDENCE – criminal proceedings – video recording of witness statement – witness unavailable – analysis of discretion
Legislation Cited:	Evidence Act 1995 (NSW), ss 55, 56, 65, 67, 137, 167
Category:	Procedural and other rulings
Parties:	Regina (Crown) Abraham Ryan Tangi (Accused)
Representation:	Counsel: P Hogan (Crown) G Wendler (Accused)   Solicitors: Director of Public Prosecutions (NSW) (Crown) Universal Lawyers (Accused)
File Number(s):	2017/242644
Publication restriction:	Not to be published until the conclusion of the trial

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application or a contest as to the admissibility of a video recording of a statement given by Mr Mian Atiq-Ur-Rehman. The interview, of 7 July 2017, is understandably described in the transcript as an ERISP, understandably, although Mr Atiq-Ur-Rehman at the time was not a suspected person.

2. In the course of the interview, the interviewee acknowledged, at Q & A 9, the statement would be such that it accurately set out the evidence that he would be prepared, if necessary, to give in Court. He had also given an undertaking to be in Court. The statement was taken by two detectives in the course of the investigation of the offence that occurred in relation to the death of the deceased in these proceedings.

3. Mr Atiq-Ur-Rehman’s statement describes, albeit in general terms, with reference to a plan which was marked by the potential witness, certain locations where he was standing and to where he moved.

4. The Statement of Mr Atiq-Ur-Rehman describes the accused going into the cell; it describes the deceased going into the cell; it describes the accused coming out of the cell; and it describes his colour and physical state at the time that he came out of the cell. For that purpose, a statement is sought to be adduced or evidence in relation to this is sought to be adduced.

5. The difficulty with Mr Atiq-Ur-Rehman is that, despite his undertaking to give evidence, on 29 March 2019 he flew out of the country and went to Pakistan. Police were notified that he was flying out of the country but, at the time considered there was no basis upon which they were entitled to stop him doing so. I agree with that assessment.

6. On the face of it, there is no reason why the witness could be precluded from travelling overseas. The difficulty is that he was travelling overseas and in fact has not returned.

7. Attempts were made to contact the witness by his known international email address. There seems to have been no response or no adequate response in relation to that. Attempts have been made through his solicitor, it seems, and through his brother. By his solicitor I mean his former solicitor who in fact is resident in Sydney.

8. The witness is in Pakistan which is a notoriously populous country or densely populated. Attempts have been made to contact him and it seems, with one possible exception, all steps have been taken. The one possible exception is to enlist the assistance of the Pakistani Police which does not seem to have occurred.

9. But, of course, it is not suggested that the person in Pakistan is guilty of any criminal offence or is capable of being extradited. To the extent that he is capable of attending Australia to give evidence, he would have to do so voluntarily and there would have to be a new visa issued in relation to that attendance. To the extent that he was willing to give evidence by audio visual, which probably is the most realistic possibility, that, too, would be required to be done voluntarily by the witness.

10. On Tuesday of last week, having failed in their attempts to contact the witness, the Crown gave notice of the intention to adduce the evidence of the statement by video link or by the transcript of it; in fact I think it is by the transcript, but I assume that would include the video. I will deal with it as if the notice referred to the video which, in my view, is the better evidence.

11. In any event, the Crown gave notice that they were to adduce that evidence. That notice was given purportedly pursuant to s 67 of the Evidence Act 1995 (NSW) (hereinafter “the Act”) and the provisions upon which the evidence was to be adduced were the provisions of s 65(2) of the Act.

12. In relation to that, the Crown in particular relied upon s 65(2)(b) and s 65(2)(c). The terms of ss 65(1) and 65(2) I set out:

“65    EXCEPTION: CRIMINAL PROCEEDINGS IF MAKER NOT AVAILABLE

(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.

Note : Section 67 imposes notice requirements relating to this subsection.”

13. The Act structure is such that everything that is relevant to the probability of the existence of a fact, whether directly or indirectly, is admissible pursuant to the terms of ss 55 and 56. That, of course, requires rational assessment of the existence of the fact.

14. To that general proposition there are exceptions. One of those exceptions is the rule against hearsay evidence. To that exception, that is, the exception relating to hearsay evidence, there are provisions which render inapplicable the exception under the hearsay rule. Section 65 is one such provision. The section applies to criminal proceedings, where the maker is not available.

15. The hearsay rule, according to s 65(2) does not apply to evidence of a previous representation given by a person who saw, heard or otherwise perceived the representation, if the representation relevantly was made shortly after the asserted fact occurred and in circumstances that make it unlikely the representation is fabricated or was made in circumstances that make it highly probable that the representation is reliable.

16. As earlier stated, the representation was made to police, in circumstances where the maker of the statement was asked whether it accurately reflects the statement that would be given in evidence and an undertaking was given that evidence would be given in or to that effect in the proceedings.

17. That would seem to render the circumstances in which the statement was taken such that render it unlikely that the representation is a fabrication, or circumstances that make it highly probable that the representation is reliable. In those circumstances, it would seem s 65(2) of the Act applies and the hearsay exception to the admissibility of relevant evidence does not apply.

18. Against that reliability aspect is tendered Exhibit 1 on the Voir Dire, which is a statement of a police officer, I hasten to add itself hearsay, which, at par 21, the person who is now in Pakistan was interviewed and he stated to the detective that “He did not witness the assault and that he only saw the deceased on the floor with prison guards surrounding him.”

19. Now that statement is technically not inconsistent with the representations that were made in the course of the interview, which is Exhibit C on the Voir Dire in the proceedings, but it does tend to a proposition that, at least at the time the witness was speaking to Detective Senior Constable Hughes or at the time that he gave the interview, Exhibit C on the Voir Dire, he was not telling the whole truth or expanding on what it is that he saw.

20. The lack of direct inconsistency seems to me to be an issue that does not detract from the terms of the circumstances or the fact that the circumstances otherwise fit within para (b) or para (c) of subs (2) of s 165; except, as I will adumbrate later in these reasons, it seems to me s 165 works of its own force and effect.

21. Section 165, for example, in the case of a dead person, which is the most obvious example, ensures that evidence will be given and will always deprive the accused of the capacity to cross-examine. As a consequence, the prejudice that is suffered from the inability to cross-examine a witness is a matter that is dealt with by the legislature in s 165 of the Act and does not seem to be adducing evidence that would be impermissibly used by the jury in the course of the trial.

22. The Court has an inherent jurisdiction to exclude evidence that it considers would unfairly prejudice the accused in a criminal trial and, indeed, has the power provided by s 137 of the Act that requires the Court to exclude evidence that is unfairly prejudicial.

23. When utilising the term “unfairly prejudicial” in s 137 of the Act, the term has been taken to require the Court to take into account the directions that would be given in relation to any evidence and also requires an assessment of unfair prejudice, which means a prejudice by the jury using the evidence impermissibly or in the wrong way. Section 165 points quite clearly to the capacity of the jury to use the evidence in the way that the Crown seeks to use it.

24. However, as earlier stated, it seems to me there is an inherent jurisdiction to ensure the trial is fair. In that regard the inability of the accused to cross-examine on the material is a matter of some significant weight.

25. I make it clear that, first, I would allow at the trial the adducing of par 21 of the statement of Detective Senior Constable Hughes if I were otherwise to allow the statement that is in contention to be admitted and I would also allow any evidence as to the dishonesty of the witness to be adduced.

26. It seems to me, in light of the directions that I expect I will make in relation to this evidence, the adducing of it, pursuant to the terms of s 165(2) would not lead to an unfair trial and, in those circumstances, I would allow the evidence to be adduced as evidence of a witness who is unavailable.

27. There is one matter with which I have not dealt. The accused raised the reasonableness of the notice pursuant to s 167 of the Act. It seems to me that the purpose of s 167 and the notice that is to be provided thereunder is firstly to arm the accused or any other person with the capacity to argue against the adducing of the evidence; secondly to make its or their own inquiries as to unavailability of the relevant witness, and the reliability of the circumstances in which the evidence was taken; and, thirdly, to seek to contact, if necessary, the witness that was said to be unavailable in the case of unavailability of witnesses.

28. It would be difficult to see that latter matter being relevant to a dead witness, but, be that as it may, it seems to me that in all of the circumstances, particularly given the attempts that are made by the officer-in-charge, or those on his behalf, to contact the witness, and the fact that it was expected that the witness would respond to the email address given the undertaking that he had made, it seems to me that the notice is a reasonable notice.

29. In all of the circumstances, if I were wrong about that, I would waive the notice provisions under s 167(4). Having said that I make it clear that I expect that the officer-in-charge or those acting on his behalf will continue to take steps to try and contact the witness and have him available for the purpose of cross-examination if possible.

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Decision last updated: 13 May 2020