R v Wilson

[2020] NSWDC 548

District Court

New South Wales

Medium Neutral Citation:

R v Wilson [2020] NSWDC 548

Hearing dates:

14 September 2020

Date of orders:

14 September 2020

Decision date:

14 September 2020

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 27

Catchwords:

CRIMINAL LAW – evidence – Crown witness did not attend to give evidence – Crown’s application under s 65 of Evidence Act 1995 (NSW) to adduce content of witness’ police statement – exception to hearsay rule – whether witness was ‘not available’ – whether all reasonable steps were taken to locate the witness and procure his attendance

Legislation Cited:

Evidence Act 1995 (NSW), ss 65, 67, 137, Part 2, clause 4 of the Dictionary

Cases Cited:

Sio v The Queen (2016) 259 CLR 47

ZL v The Queen (2010) 208 A Crim R 325

Category:

Procedural and other rulings

Parties:

Director of Public Prosecutions
Mr B J Wilson

Representation:

Counsel:
Ms K Henry for the Director of Public Prosecutions
Mr W Buxton for the accused

Solicitors:
Office of the Director of Public Prosecutions
Legal Aid for the accused

File Number(s):

2019/248475

Publication restriction:

Nil

Judgment

INTRODUCTION

1. The Crown applies to have admitted into evidence part of the content of a police statement by Corey Leonard Futcher dated 1 August 2019. Corey Futcher is the brother of Clayton Futcher, who has already given evidence.

2. The application is made in circumstances where Corey Futcher has not arrived in Court. The Crown submits that he is not an ‘available’ witness within the meaning of cl 4 of Part 2 of the Dictionary to the Evidence Act 1995 (NSW) and thereafter submits that evidence in police statement is admissible under s 65(2) of the Evidence Act.

3. It is common ground that no notice was served as to the Crown’s reliance upon this evidence, as required under s 67 of the Evidence Act.

4. Counsel for the Accused does not dispute that the alternative requirements under s 65(2) may be satisfied. His position is primarily that the Crown has not established that the witness is ‘not available’. Alternatively, he contends that the Court would exercise its discretion under s 137 to exclude the evidence.

CONTEXT

5. The Crown’s case is that in an attempt to force the return of property perceived as belonging to the ex-partner of Clayton Futcher, on 1 August 2019, the Accused attended a residence in which Clayton and Corey Futcher were residing. There, the Crown alleges, he brandished a gun. This has given rise to the charge on the indictment that he was unlawfully in possession of a firearm. Two other charges on the indictment, in respect to which the Accused has pleaded guilty, relate to the use of a jerry can to threaten to burn the home.

6. Clayton Futcher has given evidence. To paraphrase, Clayton Futcher gave evidence of the Accused attending the residence and demanding to enter into the residence. When access was refused, according to Clayton Futcher, the Accused showed a pistol. Clayton Futcher says that he moved towards the back of the premises and telephoned the 000 operator. There he reported that a person had demanded entry into the residence and had a gun and requested, in an urgent tone, that the police arrive as soon as possible. Clayton Futcher asserts that the Accused also had taken a jerry can and poured fuel over the front door of the premises and threatened to use a lighter so as to burn the house down. The police eventually arrived at the premises and, the Crown says, the Accused fled the scene, moving around the back of the premises. The Accused was apprehended by police over a week later.

7. A sound recording of that telephone conversation has been played. Relevantly, Clayton Futcher identified his brother, Corey’s voice, during the sound recording.

8. After the intrusion, Clayton and Corey Futcher respectively provided accounts to the police. It is Corey’s account, reduced to a written police statement, that the Crown seeks to have admitted. For this purpose, on the voir dire, the Crown relied upon part of the statement. Again, to paraphrase, the relevant part of Corey’s written statement might fairly be regarded as providing some corroboration for Clayton’s sighting of the Accused with a gun and the pouring of fuel. Accordingly, in anticipation of the s 137 objection, the Crown submits that Corey Futcher’s evidence has high probative value.

IS COREY FUTCHER ‘NOT AVAILABLE’?

9. The anterior question, however, is whether the evidence of the police statement is admissible under s 65(2) and it is conditional to the admissibility under that provision that the Crown establishes that Corey Futcher is not available.

10. The Crown relies upon sub-cll 4(1)(f) and (g) in cl 4 of Part 2 of the Dictionary of the Evidence Act in its application.

11. Sub-cl 4(1)(f) provides that a person is taken not to be available if “all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success”.

12. Sub-cl 4(1)(g) provides that a person is taken not to be available if “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.”

Senior Constable Hannah’s evidence

13. The officer in charge, Senior Constable Hannah, gave evidence of having taken the witness statement from Corey Futcher. After taking that statement, he had had no further dealings with Corey Futcher. He had had no contact with him, of any kind, in relation to his attendance at the trial. The officer indicated that he had attended the address where the incident occurred, and had spoken to Clayton Futcher. Clayton had, however, informed him that his brother was “on the run” and had foreshadowed that Corey had no plans to attend the Court.

14. Senior Constable Hannah said that Corey Futcher is ‘wanted’ for having breached bail. He is currently the subject of charges of larceny and driving whilst unlicensed. He was unable to have a subpoena served on Corey to compel him to attend Court.

15. Under cross-examination, Senior Constable Hannah indicated that he was not aware that this matter was set down for trial on 9 July 2020, but was aware that Corey Futcher was in police custody from 18 – 27 July 2020 (inclusive).

16. Senior Constable Hannah accepted that he had not made inquiries of potential sources of information regarding Corey Futcher’s whereabouts, including through:

• Centrelink;

• telecommunications providers;

• a motor vehicle registry;

• hospitals;

• emergency providers of accommodation;

• Corey’s sister (who attends school); and

• other associates known to Corey Futcher.

Submissions

17. Ms Crown candidly acknowledged that the Crown ‘hoped’ that Corey Futcher would attend Court, if only to support his brother. Some attempt was made, she contended, to find out where he was.

18. Counsel for the Accused contended that Senior Constable Hannah’s evidence indicated that it was far from the case that all reasonable steps had been taken to find Corey Futcher, or secure his attendance, but without success; and further, that opportunity existed, whilst he was in custody, for him to be compelled to attend, through the issue of a subpoena.

CONSIDERATION

19. In Sio v The Queen (2016) 259 CLR 47, the High Court indicated that it is no small thing to admit a hearsay statement inculpating an accused, since the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining inculpatory assertions. Hence the need for compliance with the conditions of admissibility: at [60]-[61].

20. The onus falls upon the Crown to give evidence that all reasonable steps have been taken to find Mr Futcher: ZL v The Queen (2010) 208 A Crim R 325 at [35].

21. In ZL, Nettle JA indicated (at [32]) that the greater the importance of the witness, the more reasonable it is for the Court to expect that very extensive inquiries and efforts are made to locate him or her. In that case, a witness who the Crown had submitted to be very important to the Crown case did not attend. The Victorian Court of Appeal rejected the contention that the prosecutor had taken all reasonable steps in light of circumstances that there was no attempt to access phone records, Centrelink records or make inquiries of known or suspected associates to the witness.

22. Those features also apply here.

23. This is in a context where it is curious that the officer in charge was unaware as to when the matter had been set down for trial (back in July), but in any event, was on notice as to the circumstance that it might be difficult to force Mr Futcher to attend otherwise than by subpoena. Objectively, there was opportunity for the prosecutor to serve that subpoena when Corey Futcher was in custody.

24. There was no suggestion by the Crown that there was insufficient time for the prosecution to take steps to locate the witness or an insufficiency in resources. It could hardly be said that the prosecution’s attempts to locate him have been exhaustive as indicated, for example, by inconclusive inquiries by an experienced investigator.

25. I am not persuaded by the Crown that all reasonable steps have been taken to find him and to procure his attendance.

26. That being so, s 65 is not enlivened. It is unnecessary to consider s 67 or 137 of the Evidence Act.

27. The Crown’s application is refused.

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Decision last updated: 22 September 2020