R v TI [No. 2] - [2015] ACTSC 208

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 Evidence Act 2011 (ACT), ss 4(1)(f), 21, 65, 65(2)(c), Dictionary Federal Court of Australia Act 1976 (Cth), ss 47A, 47A(2) 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rr 6000, 6700, 6701, 6702, 6703, 6703(1), 6703(2), 6704, Ch 6, Pt 6.10, Div 6.10.1 Supreme Court Rules 1937 (ACT) (repealed), Order 39, Div 39.2, rr 3-6; Part 2, Civil Jurisdiction Vienna Convention on Consular Relations, Articles 5, 5(j), 5(m), 31, 31.2 Diplomatic and Consular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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v TI [No. 2]

Details

AGLC: R v TI [No. 2] [2015] ACTSC 208
Case: [2015] ACTSC 208
Decision Date: 16 June 2015

CaseChat Overview and Summary

The case before the court involved a criminal prosecution where the Crown sought to admit a police statement made by a complainant who was unwilling to return to Australia to give evidence. The case was heard in the relevant Australian court, and the primary issue was whether the evidence could be taken by audiovisual link from Singapore, where the complainant was located, and whether the Crown had taken all reasonable steps to secure the witness’s attendance. The court was required to determine the relevance of the relationship between the importance of the witness’s evidence and the assessment of whether reasonable steps were taken, as well as the relevance of the actions of the police or only the prosecutors in assessing whether reasonable steps had been taken.

The court considered the legislative framework governing the admissibility of evidence from overseas witnesses, including the requirements of the Evidence Act 2011 (ACT). It examined the balance between the need for the witness's evidence and the reasonable steps taken to secure their attendance. The court found that the importance of the witness’s evidence was a relevant factor in assessing whether reasonable steps had been taken, but it was not the sole determinant. The court also considered whether the steps taken by the police or only the prosecutors were relevant in this assessment. Ultimately, the court concluded that the Crown had not taken all reasonable steps to secure the witness’s attendance, and therefore, the application for the admission of the police statement under section 65 of the Evidence Act 2011 (ACT) was refused.

In its judgment, the court emphasised the importance of a comprehensive and balanced approach to determining whether reasonable steps have been taken to secure the attendance of an overseas witness. The court highlighted that while the importance of the witness’s evidence is a relevant consideration, it must be weighed against other factors, including the efforts made by both the police and prosecutors. The court's decision underscores the need for a thorough assessment of all relevant circumstances in cases where a witness is unwilling to travel to give evidence. The final orders of the court were that the Crown’s application for the police statement to be admitted under section 65 of the Evidence Act 2011 (ACT) was refused.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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