R v TI [No. 2]
[2015] ACTSC 208
•16 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TI [No. 2] |
Citation: | [2015] ACTSC 208 |
Hearing Date(s): | 15, 16 June 2015 |
DecisionDate: | 16 June 2015 |
Reasons Date: | 17 August 2015 |
Before: | Penfold J |
Decision: | The Crown’s application for the police statement made by the complainant to be admitted under s 65 of the Evidence Act 2011 (ACT) is refused. |
Category: | Procedural and other rulings |
Catchwords: | EVIDENCE – Admissibility and Relevance – complainant in Singapore and unwilling to return to Australia to give evidence – whether evidence could be taken by audiovisual link from Singapore – whether Crown had taken all reasonable steps to secure witness’s attendance – relationship between importance of witness’s evidence and assessment whether reasonable steps taken – whether steps taken by police or only prosecutors were relevant in assessing whether reasonable steps taken. |
Legislation Cited: | Criminal Procedure Act 2009 (Vic), Pt 8.2 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5D Evidence (Miscellaneous Provisions) Act 1958 (Vic) Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 18, 20 Legislation Act 2001 (ACT), ss 126(2), 127(1), 142 Court Procedures Rules 2006 (ACT), rr 6000, 6700, 6701, 6702, 6703, 6703(1), 6703(2), 6704, Ch 6, Pt 6.10, Div 6.10.1 Supreme Court Rules 1937 (ACT) (repealed), Order 39, Div 39.2, rr 3-6; Part 2, Civil Jurisdiction Vienna Convention on Consular Relations, Articles 5, 5(j), 5(m), 31, 31.2 Diplomatic and Consular Relations Act 2005 (Singapore), s 4 Practice Direction No. 1 of 2002 (ACT Supreme Court) |
Cases Cited: | Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213 R v Kazzi;R v Williams; R v Murchie (2003) 140 A Crim R 545 ZL v The Queen (2010) 208 A Crim R 325 |
Parties: | The Queen (Crown) TI (Accused) |
Representation: | Counsel Ms K Mackenzie (Crown) Mr R Livingston (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 246 of 2014 |
Introduction
TI has been charged in a single indictment with five counts of acts of indecency, arising out of four incidents involving three adults and one incident involving a person under the age of 16 years.
On 16 June 2015, I refused an application by the Crown made under s 65 of the Evidence Act 2011 (ACT). These are my reasons for that ruling.
The Crown’s applications
The Crown initially applied for an order permitting the evidence of one of the complainants in TI’s trial to be taken by audiovisual (AV) link from the Australian High Commission in Singapore. Failing the making of that order, an order was sought that the complainant was unavailable for the purposes of s 65 of the Evidence Act 2011 (ACT) and that under s 65(2)(c) the statement she made to police almost exactly 72 hours after the alleged incident is admissible in TI’s trial.
The defence declined to consent to the receipt of the evidence as proposed although, as will become apparent, consent may not have been determinative even if it had been offered.
The late making of the application was “explained” by the fact that prosecutors working in the ACT Office of the Director of Public Prosecutions (the DPP) were unaware, until very shortly before the trial, that the complainant concerned was unlikely to appear to give evidence.
Application for evidence to be taken by AV link from Singapore
On 2 March 2015, TI’s trial was listed for the week commencing 15 June 2015.
Subpoenas for the trial were prepared and issued by DPP officers in March 2015 but, in circumstances that will be discussed in more detail later, the DPP did not pursue the question whether the subpoena had been served on the complainant until about two weeks before the trial date. Only after that issue was pursued did the DPP discover that the complainant had left Australia in August 2014 and apparently had no present intention to return. Furthermore, a request that she come to Australia purely to give evidence, and an offer to pay all her expenses, was declined, the complainant having a job in Singapore that she felt unable to take leave from at short notice.
The complainant had however offered to go to the Australian High Commission in Singapore, where AV facilities are available by which her evidence, given in the High Commission, could be transmitted to this court for the purposes of TI’s trial.
The Crown relied for this first part of the application on the following submissions:
(a)That r 6703 of the Court Procedures Rules 2006 (ACT) (the CPRs) permits evidence to be taken by AV link from anywhere outside the courtroom.
(b)That the giving of the witness’s evidence from within the Australian High Commission would be protected by article 31 of the Vienna Convention on Consular Relations.
Consideration – operation of r 6703
Rule 6703 of the CPRs is as follows:
6703Evidence by telephone etc
(1)The court may receive evidence or submissions by telephone, video link or another form of communication in a proceeding.
(2)The court may, by order, impose conditions for subrule (1).
Note 1The following provisions also apply to receipt of evidence or submissions by the court by audiovisual or audio link:
·from within the ACT—the Evidence (Miscellaneous Provisions) Act 1991, div 3.4
·from elsewhere in Australia—the Evidence (Miscellaneous Provisions) Act 1991, div 3.2 and these rules, div 6.10.6 (Taking evidence at trial from outside ACT but in Australia by audiovisual link or audio link)
·from New Zealand—the Trans-Tasman Proceedings Act, pt 6 (Remote appearances) and these rules, div 6.10A.4 (Trans-Tasman proceedings—remote appearances).
Note 2 The provisions of the Evidence (Miscellaneous Provisions) Act 1991 mentioned in note 1 do not exclude or limit the operation of any territory law (including these rules) that makes provision for the taking of evidence or the making of a submission outside the ACT for a proceeding in the ACT (see that Act, s 18).
Note 3 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
There are various matters to be considered in interpreting r 6703.
Rule 6703 in context
Rule 6703 sits within a Chapter (Ch 6) that applies to all proceedings except those specifically excluded (r 6000), within a Part (Pt 6.10) that appears to apply generally, and within a Division (Div 6.10.1) the first three provisions of which explicitly apply to civil proceedings and the last two of which (rr 6703 and 6704) do not include any limit on their application. Rule 6704, which permits certain evidence to be withheld from other parties until the hearing, would seem to be inconsistent with the general obligations of prosecutors to disclose the Crown case to the accused well before the trial, and the reference to compliance with r 6704 being relevant on the question of costs also suggests it is intended to apply in civil rather than criminal proceedings. It is tempting to believe that both rr 6703 and 6704 were also intended to apply only in civil proceedings, but on the other hand the explicit references to civil proceedings in rr 6700, 6701 and 6702 would support an interpretation of rr 6703 and 6704 as not being so confined.
Rule 6703 on its face provides unlimited scope for evidence to be given from a remote location by telephone or AV link. However, there are several reasons to question whether the rule should be read as applying so widely.
As far as I can see, the effect of such an interpretation of the rule would be to render irrelevant all the provisions identified in Note 1 to the rule, including, one would assume, the conditions specified by those provisions as necessary to permit the making of orders permitting the giving of evidence from a remote location in the ACT, elsewhere in Australia, or in New Zealand.
Significance of foreign law
The rule as so interpreted would also ignore the issues addressed in s 47A(2) of the Federal Court of Australia Act 1976 (Cth) (discussed in Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213) and s 5D of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Those provisions are as follows:
Federal Court of Australia Act 1976 (Cth)
47A.Testimony by video link, audio link or other appropriate means
(1)The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.
Note: See also section 47C.
(2)The testimony must be given on oath or affirmation unless:
(a)the person giving the testimony is in a foreign country; and
(b)either:
(i)the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or
(ii)the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and
(c)the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.
(3)If the testimony is given:
(a)otherwise than on oath or affirmation; and
(b)in proceedings where there is not a jury;
the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.
Note: In proceedings where there is a jury, the Judge may warn the jury about the testimony (see section 165 of the Evidence Act 1995 ).
(4)The power conferred on the Court or a Judge by subsection (1) may be exercised:
(a)on the application of a party to the proceedings; or
(b)on the Court's or Judge's own initiative.
(5)This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.
Note: See Part 6 of the Trans-Tasman Proceedings Act 2010.
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
5DAdministration of oaths and affirmations
(1)Subject to subsection (2), an oath to be sworn or affirmation to be made by a person giving evidence by audio link or audio visual link under Part 1A or 1B may be administered either:
(a)by means of the audio link or audio visual link, as nearly as practicable in the same way as if the person were to give evidence in the courtroom or other place where the NSW court is sitting, or
(b)at the direction of, or on behalf of, the court at the place where the person is giving the evidence by a person authorised by the court.
(2)A person giving evidence by audio link or audio visual link under Part 1A or 1B from a foreign country is not required to give the evidence on oath or affirmation if:
(a)the law in force in that country:
(i)does not permit the person to give evidence on oath or affirmation for the purposes of the proceeding, or
(ii)would make it inconvenient for the person to give evidence on oath or affirmation for the purposes of the proceeding, and
(b)the NSW court is satisfied that it is appropriate for the evidence to be given otherwise than on oath or affirmation.
(3)If evidence is given otherwise than on oath or affirmation, the NSW court is to give the evidence such weight as it thinks fit in the circumstances.
(4)Subsections (2) and (3) apply despite anything to the contrary in the Evidence Act 1995 or any other law of this State.
On the other hand, the law of Victoria (and possibly some other Australian jurisdictions) seems to permit the taking of evidence from overseas without any consideration of whether the laws of the relevant foreign country permit, or facilitate, the taking of sworn evidence on oath or affirmation administered from outside that country (see the Evidence (Miscellaneous Provisions) Act 1958 (Vic); Criminal Procedure Act 2009 (Vic), Pt 8.2).
Specifically, r 6703 if taken at face value would not require the ACT court to give any consideration to whether the taking of sworn evidence from the foreign country concerned would be prohibited by the law of that foreign country or permitted only in specified circumstances.
The fact that a person might voluntarily submit to giving evidence from a remote location would not exclude the requirement under the Evidence Act (s 21) for the person to give that evidence on oath or affirmation, and, as implied by the Commonwealth and NSW provisions quoted at [15] above, giving evidence in that way may in some countries be against the local law.
It would in my view be surprising if the CPRs were intended to authorise ACT courts to permit or require persons present in a foreign country to contravene the law in force in that foreign country by giving evidence on oath or affirmation by AV link to an ACT court.
Significance of notes to r 6703
Next, it might be argued that Notes 1 and 2 to r 6703 are consistent with an interpretation of r 6703 as an independent power to receive evidence by audio or AV link.
Notes in general are not part of legislation (Legislation Act 2001 (ACT), s 127(1)), but those notes appear to be available in interpreting legislation (Legislation Act, s 142, Table 142, item 1, column 3).
Note 1 refers to the provisions of other primary legislation as provisions that also apply to receipt of evidence by AV link. This might imply that r 6703 itself confers a separate power to receive evidence in that way, but might alternatively reflect only the unarguable proposition that r 6703 and the other legislation mentioned all apply to receipt of evidence by AV link.
Note 2 is as follows:
The provisions of the Evidence (Miscellaneous Provisions) Act 1991 mentioned in note 1 do not exclude or limit the operation of any territory law (including these rules) that makes provision for the taking of evidence or the making of a submission outside the ACT for a proceeding in the ACT (see that Act, s 18).
This note is incomplete and thereby misleading.
Section 18 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is as follows:
18Operation of other Acts
(1)This part is not intended to exclude or limit the operation of any territory law that makes provision for the taking of evidence or making of a submission in an external place for a proceeding in the ACT.
(2)In this section:
external place means a place within or outside the ACT but within Australia that is outside the courtroom or other place where the court is sitting.
The heading to s 18, which is in this case part of the legislation (Legislation Act, s 126(2)), refers to “Acts”, while the text of the provision refers to territory laws (which include subordinate instruments as well as Acts).
Section 18 preserves the operation of other territory laws that make provision for the taking of evidence in an external place – that is, a place other than the place where the court is sitting but within Australia.
Even accepting that s 18 preserves the relevant provisions of subordinate legislation as well as Acts, it does not, as is suggested by note 2, purport to preserve legislation that make provision for the taking of evidence outside Australia; neither s 18 of the Evidence (Miscellaneous Provisions) Act nor note 2 to r 6703 can be relied on in support of an argument that r 6703 confers an independent power to take evidence by AV link from overseas. As already mentioned, note 1 lends no support to such an argument either.
Alternative interpretation of r 6703
As already discussed, there are difficult questions that would be raised by interpreting r 6703 as conferring a power to receive evidence from a remote location anywhere within or outside Australia that is independent of, and renders irrelevant, the qualified power to do so that is conferred by primary legislation (the Evidence (Miscellaneous Provisions) Act). In these circumstances, it seems to me that a more likely, and indeed more appropriate, interpretation of r 6703 is that r 6703(1) provides the context in which r 6703(2) gives, to a court that is exercising a specific statutory power to receive evidence from a remote location, the power to impose conditions on the taking of that evidence.
Position before CPRs
It is useful to consider also what seems to have been the position in the ACT before the CPRs took effect on 1 July 2006.
Practice Direction No. 1 of 2002, titled “Questioning of Persons by Telephone” or possibly “Evidence by Telephone and Video link” (repealed by a Notice to Practitioners issued 13 March 2015), said:
it is open to the parties to consent to evidence being given by telephone or video link from anywhere in Australia or anywhere in the world. Where consent is not forthcoming, a party may apply for an order that the evidence be given by telephone or video link from other parts of Australia or the ACT. There is no power for the Court to order telephone or video link evidence from overseas.
The Practice Direction also noted that:
If the parties do not consent to the giving of evidence by telephone, application should be made to the Court in accordance with the procedure contained in Order 39, Division 39.2 rules 3-6 of the Supreme Court Rules. This procedure will apply both to audio and audio visual links.
The Supreme Court Rules 1937 (ACT) were repealed in 2006. Immediately before that, Order 39, Division 39.2, rr 3-6 (which formed part of Part 2, Civil Jurisdiction) were as follows:
Division 39.2 Taking evidence at trial from outside ACT by audiovisual link or audio link
3Application for direction
An application for a direction under the Evidence (Miscellaneous Provisions) Act 1991, section 20 (Territory courts may take evidence and submissions from outside ACT) may be made orally or by motion on notice in the proceeding.
4Supporting affidavit
An application must be supported by an affidavit stating—
(a)why it is desirable that the evidence be taken or submissions made by audiovisual link or audio link; and
(b)the nature of any evidence to be taken; and
(c)the number of witnesses to be examined; and
(d)whether issues of character are likely to be raised; and
(e)the expected duration of the evidence or submissions; and
(f)a description of the facilities that are available, or that can reasonably be made available, for the evidence to be taken or submissions to be made; and
(g)that the requirements of the Evidence (Miscellaneous Provisions) Act 1991, section 20 (2) (Territory courts may take evidence and submissions from outside ACT) can be met.
5Relevant considerations
In deciding whether to grant an application, the court may have regard to, in addition to the matters included in the applicant’s affidavit, any other matters that the court considers to be relevant, including cost and convenience to the witnesses and parties.
6Directions
(1)If the court gives a direction under the Evidence (Miscellaneous Provisions) Act 1991, section 20, the court may direct the registrar to arrange for and coordinate the use of the appropriate facilities in the ACT and the other jurisdiction.
(2)Without limiting subrule (1), the court may direct that—
(a)the registrar arrange for the evidence to be given, or the submissions to be made, at the Supreme Court of the other jurisdiction or at another place approved by that court for the purpose; and
(b)an officer of the Supreme Court of the other jurisdiction, or anyone else approved by that court for the purpose, be asked to be present to assist in the transmission of the evidence or submissions and, in particular, to—
(i)introduce witnesses and legal representatives; and
(ii)assist with the administration of oaths, if necessary; and
(iii) assist with the implementation of any direction given or request made by the judge hearing the evidence or submissions.
Those rules relied on s 20 of the Evidence (Miscellaneous Provisions) Act, which immediately before the rules were repealed was as follows:
20Territory courts may take evidence and submissions from participating States
(1)A territory court may, on the application of a party to a proceeding before the court or on its own initiative, direct that evidence be taken or a submission made by audiovisual link or audio link, from a participating State.
(2)The court may make the direction only if satisfied that—
(a)the necessary facilities are available or can reasonably be made available; and
(b)the evidence or submission can more conveniently be given or made from the participating State; and
(c)the making of the direction is not unfair to a party opposing the making of the direction.
(3)The court may exercise in the participating State, in relation to taking evidence or receiving a submission by audiovisual link or audio link, any of its powers that the court is permitted, under the law of the participating State, to exercise in the participating State.
(4)The court may at any time amend or revoke a direction under this division, either on the application of a party to the proceeding or on its own initiative.
Although the operation of the various provisions is not absolutely clear, what does seem to be clear is that before the CPRs came into operation, there was no assumption that the Supreme Court had power to order that evidence be taken from overseas in criminal proceedings.
Conclusion
The only basis for believing that the Court has that power now seems to be r 6703, which for reasons already set out does not appear to me to be a sound basis for the Court to risk breaking the law of another country or requiring a witness to do so.
Consideration – operation of Vienna Convention
The second limb of the Crown’s argument was that the giving of the witness’s evidence from within the Australian High Commission would be protected under the Vienna Convention on Consular Relations; that Convention, by virtue of s 4 of the Diplomatic and Consular Relations Act 2005 (Singapore), has the force of law in Singapore.
Counsel relied specifically on Article 31 of the Vienna Convention, which is relevantly as follows:
1.Consular premises shall be inviolable to the extent provided in this article.
2. The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.
Article 5 of the Vienna Convention defines consular functions. Those functions include, relevantly:
(j)transmitting judicial and extra judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;
(m)performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.
Article 31.2 specifies that the protection under that article extends to “that part of the consular premises which is used exclusively for the purpose of the work of the consular post”. Whether the provision of AV facilities by which evidence can be given to an Australian court is properly described as “the work of the consular post” would seem to depend first on the meaning given to Articles 5(j) and (m) which describe “consular functions”, and then on whether “the work of the consular post” can be equated with the performance of “consular functions”, but neither evidence nor argument was offered in relation to those questions. In the absence of expert evidence or authority on this issue, I refrain from reaching any conclusion about the meaning of “the work of the consular post”.
However, even in the absence of such assistance, I would be inclined to conclude that, under Articles 5(j) and (m):
(a)if the function of providing AV facilities for the giving of evidence to Australian courts is a consular function; then
(b)that function is to be performed having regard to the laws and regulations of the receiving State (in this case, Singapore), as well as any international agreements in force between Singapore and the sending State (Australia).
As indicated, no submissions were made about the interpretation of international agreements, and my understanding is that although the approach is similar to that adopted for interpreting legislation, it is not identical, and may include some different principles. Accepting this, I nevertheless conclude that the relevant articles of the Vienna Convention do not appear to operate as a blanket withdrawal of the receiving State’s interest in what happens within the consular post; it is by no means clear that the Convention operates to effect the position often described colloquially as rendering the premises of the consular post part of the territory of the sending State.
Conclusions
As it happened, I did not in the end have to reach a conclusion about whether I was empowered to receive evidence by AV link from Singapore in general or from the Australian High Commission in Singapore in particular. This was because, after I had heard argument on the source and scope of the Court’s power to receive evidence by AV link from the High Commission, the application to call evidence in that way was abandoned by the Crown.
In a combination of evidence from the informant and advice from the bar table, I had originally been given to understand that the Australian Federal Police (AFP) officer in Singapore had raised with Australian diplomatic representatives in Singapore the use of the High Commission’s AV facilities for the purposes of the complainant giving evidence on oath or affirmation in an Australian criminal trial. The next day I was told that this had been approved at a high level in the High Commission, but that when the AFP liaison officer then mentioned it, as a matter of courtesy, to an appropriate officer of the Singapore Police Force, it emerged that Singapore officials would expect the involvement of Australian officials (apparently, the Australian Attorney-General’s Department) and their counterparts in Singapore before the process went ahead. The Crown believed, no doubt correctly, that this was not going to be achieved without delaying the trial unacceptably, so the application for the complainant’s evidence to be taken from Singapore was abandoned.
Noting the reaction of the Singapore officials, and having regard also to the indications given in s 47A of the Federal Court Act, it seems to me that a decision by an ACT court to receive evidence by AV link from an Australian consular post in a foreign country should not be made without any information about, or consideration of:
(a)how the taking of evidence as proposed is likely to be affected by either the laws and regulations of that foreign country or any international agreements in force between Australia and that country; and
(b)possibly, whether that country would be likely to object to the taking of evidence if it became aware of the proposal.
Application to admit complainant’s statement on “maker unavailable” basis
The Crown’s fall-back application was for the admission of the complainant’s police statement under s 65(2)(c) of the Evidence Act on the ground that its maker was unavailable to give evidence.
The law
Section 4 of Part 2 of the Dictionary to the Evidence Act is as follows:
4Unavailability of people
(1)For this Act, a person is taken not to be available to give evidence about a fact if—
(a)the person is dead; or
(b)the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or
(c)the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
(d)it would be unlawful for the person to give the evidence; or
(e)a provision of this Act prohibits the evidence being given; or
(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; or
(g)all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2)In all other cases the person is taken to be available to give evidence about the fact.
Section 4(1)(f) is the only possibly applicable provision in the current case. For the purpose of determining whether all reasonable steps have been taken by the prosecution to secure the complainant’s attendance, I mention first two preliminary issues.
First, counsel for the Crown conceded that the complainant’s evidence would constitute the only “direct” evidence of the offence charged, and was indispensable to the case on Count 5 of the indictment, and that this meant that the “reasonable steps” that had to be established by the Crown would require more effort than would be required in relation to a witness whose evidence was less significant. That is, the burden of “reasonable steps” was directly commensurate with the importance of the witness’s evidence (ZL v The Queen (2010) 208 A Crim R 325 at [32], Nettle JA).
Secondly, despite the submissions of counsel for the Crown, I considered that in looking as required by s 4(1)(f) at the actions of “the party seeking to prove the person is not available”, it is appropriate, when the party is “the Crown”, to look not just at the actions of staff of the DPP but also at the actions of other agencies involved with the DPP in bringing a criminal charge before a court (in this case, specifically the actions of the AFP). Such an approach is implicit in the reasoning of the court in R v Kazzi;R v Williams; R v Murchie (2003) 140 A Crim R 545 at [11] to [13], and ZL v The Queen at [23] to [33].
The facts
The circumstances in which the DPP officers discovered the complainant’s likely absence from the scheduled trial are described in an affidavit provided by the DPP officer assigned to instruct counsel (also a DPP officer) in the trial, as follows:
2.On 24 March 2015, Amanda Thomas, an ACT DPP paralegal drafted a subpoena for [the complainant] to attend and give evidence in this trial.
3.It is the DPP process that these subpoenas are provided to the AFP Service and Processing team for service. If the subpoena was served the affidavit of service is provided to the ACT Supreme Court. If the subpoena is not served the subpoena is returned to the instructing prosecutor.
4.In or about mid April 2015 I was allocated to this trial as instructing prosecutor.
5.At no time has an unserved subpoena been returned to me, as instructor in this trial.
6.In about May 2015, I received an unserved subpoena for another witness.
7.On 6 May 2015, I emailed the AFP Service and Processing manager to confirm whether a subpoena had been served on another witness. I have had no reply to this email.
8.In about the end of May I was advised by the Director of Public Prosecutions witness assistant that during the course of this matter the DPP had been unable to ever make contact with [the] complainant.
9.In about the end of May 2015 I requested that the DPP witness assistants make further attempts to contact [the complainant].
10.On 27 May 2015, I received an email from Erin Brown, a witness assistant, stating that Lisa Watson, another witness assistant had been unsuccessful in contacting [the complainant]. I was advised that the phone number we have was going through to a male's voicemail.
11.On 28 May 2015, I advised Erin Brown by email that we would wait for [the complainant] to contact us.
12.On or about 28 May 2015, I spoke with Lisa Watson and Erin Brown. I stated that we had not received the subpoena back unserved and therefore it was more likely she had been served. I stated that in my experience witnesses make contact before a trial to get information and we would wait to see if [the complainant] did that.
The next action was taken on 9 June 2015, when DPP officers contacted the AFP informant (the police officer responsible for the investigation of the charged offences). That officer then began a period of rostered days off, but on the next day the DPP sought further assistance from the AFP and on 11 June 2015, an AFP officer discovered that the complainant had left Australia in August 2014 and there was no record of her return. On the same day, and after several fruitless searches, the complainant was located via Facebook, and the DPP officer spoke to her via Skype, asking her to travel to Australia to give evidence. It quickly became apparent that the complainant was willing to give AV evidence from Singapore but not to travel to Australia.
Consideration
That summary indicates that there were several points at which the witness’s availability for the trial could have been pursued with more energy, or at which procedures appear to have broken down. These include:
(a)the failure of members of the AFP Service and Processing team:
(i)to advise the DPP of their inability to serve the complainant at the address in the police files; or
(ii)to pursue other methods of locating her;
(b)in the absence of the return of the unserved subpoena, the failure of DPP officers in the weeks before the listed trial date to check the Court file to confirm that the subpoena had been served, which check would have revealed that it had not been served.
(c)the failure of the AFP Service and Processing team to reply to the DPP’s email enquiry about service of a subpoena on another witness, and the failure of the DPP to chase up a reply – although those specific failures related to another witness in the trial (not the complainant), a more energetic approach to the relevant subpoena on either side might also have reminded the relevant officers of the need to ensure that the complainant had been served.
I note in passing that there seems to be an inherent weakness in a system in which the DPP routinely relies on non-receipt of unserved subpoenas as confirmation that the subpoenas have been served, given that there may be any number of reasons why an unserved subpoena is not returned to the DPP by any particular time, and, as this case demonstrates, successful service is only one of them.
Bearing in mind, as mentioned above, that the importance of the evidence in this case set a high threshold for the Court to be satisfied that all reasonable steps had been taken by the Crown, and noting the various points at which the Crown could have done considerably more to ensure the complainant’s availability, I could not conclude that the Crown had taken “all reasonable steps” to secure the complainant’s attendance.
In saying that, I do not intend to criticise the DPP, the AFP or anyone else involved, any or all of whom may well have been operating under severe pressures arising from under-resourcing. However, the community’s failure to resource investigating and prosecuting authorities properly should not in my view be accepted as a justification for eroding the protections that are provided to all members of the community (especially, although not only, innocent members of the community) by the requirement that every accused person receive a fair trial.
Conclusions
For the purposes of s 65 of the Evidence Act, I declined to find that the complainant was not available to give evidence as defined in the Dictionary to that Act, and accordingly refused to admit her statement into evidence.
Outcome
This meant that the charges in relation to the assault on the complainant were not proceeded with in TI’s trial.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Kate Harris Date: 17 August 2015 |
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