Rex v Naramsin Askarou

Case [2024] NSWDC 552

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Askarou [2024] NSWDC 552
Hearing dates: 14, 15, 16 October 2024
Date of orders: 23 October 2024
Decision date: 23 October 2024
Jurisdiction:Criminal
Before: D Barrow SC DCJ
Decision:

The Crown’s Notice of Motion is dismissed.

Catchwords:

CRIME - Pre-trial - Unavailability of persons – “All reasonable steps” – Factors to be taken into account – Evidence Act 1995 (NSW), s 63 – where witness is overseas in another country

Legislation Cited:

s65(3) Evidence Act 1995

s5B Evidence (Audio and Audio Visual Links) Act 1998

Crimes Act 1900

Cases Cited:

Askarou v The King [2023] NSWCCA 246

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 4) [2019] NSWSC 1286

R v Geeves (No 4) [2024] NSWSC 938

R v Hawi (No 2) [2011] NSWSC 1648; 216 A Crim R 64

Huang v Wei [2022] NSWSC 222

AJW and 2 ors v State of New South Wales [2003] NSWSC 803

Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976

Quintano v B W Rose Pty Ltd [2008] NSWSC 1012

ZL v The Queen (2010) 208 A Crim R 325; [2010] VSCA 345

Tasmania v Dolega (2016) 26 Tas R 312; [2016] TASSC 65

Inc v John Deere Ltd (No 2) (2000) 181 ALR 108; [2000] FCA 1903

Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435

R v Sarbandi (2012) 229 A Crim R 39; [2012] ACTSC 180

Texts Cited:

Odgers ‘Uniform Evidence’ 19th Ed at p1839

Category:Procedural rulings
Parties: Crown
Accused (Mr Askarou)
Representation:

Crown
Counsel: Crown Prosecutor, DPP
Solicitor: Solicitor 1, DPP

Accused
Counsel: Mr M Kalyk
Solicitor: Ms Bannister
File Number(s): 2018/00012583

JUDGMENT

Introduction

  1. Mr Askarou, (‘the accused’), is to stand trial at the District Court of Parramatta on 11 November 2024 charged with an offence contrary to section 29 of the Crimes Act1900 that:

On 28 July 2016, in Prairiewood in the State of New South Wales, he did shoot at Zia Kryo with intent to murder the said Zia Kryo.

  1. In the alternative, he is charged that on the same day and place, he discharged a firearm with intent to cause grievous bodily harm. This offence is contrary to s33A(1)(a) of the Crimes Act 1900.

  2. The matter for resolution in this judgment is whether WL, an important prosecution witness, is unavailable to give evidence at the upcoming trial, such that his evidence at the accused’s earlier trial can be admitted as part of the prosecution case pursuant to s65(3) of the Evidence Act1995.

History of the proceedings.

  1. At about 10:20 PM on 28 July 2016, the victim Mr Kryo was shot as he approached the front door of his home, with a bullet puncturing his lung and severing his spinal cord, rendering him a paraplegic.

  2. Although it seems the accused was a person of interest in the ensuing police investigation, he was not charged until…

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AGLC
Rex v Naramsin Askarou [2024] NSWDC 552
Case
[2024] NSWDC 552
Decision Date

CaseChat Overview and Summary

The matter of Rex v Naramsin Askarou involved the defendant, Naramsin Askarou, who was charged with serious criminal offences. The case reached the court as a pre-trial motion, where the central issue was the unavailability of witnesses who were overseas. The Crown sought to introduce evidence from these witnesses, but their physical presence in court was not possible. The legal dispute centred on whether the Crown had taken all reasonable steps to secure the attendance of these witnesses, as required by section 63 of the Evidence Act 1995 (NSW). The court was required to determine the factors that should be considered when a witness is overseas in another country.

The court examined the steps taken by the Crown to locate and secure the attendance of the witnesses. It considered the application of section 63 of the Evidence Act 1995 (NSW) and the criteria for determining the unavailability of witnesses who reside overseas. The court also evaluated the adequacy of the efforts made by the Crown to ensure that these witnesses were available for the trial. It scrutinised whether the Crown had exhausted all possible means to bring the witnesses to Australia, taking into account the practical and legal challenges posed by international borders and legal systems. Ultimately, the court concluded that the Crown had not demonstrated that all reasonable steps had been taken to secure the attendance of the witnesses.

The court found that the Crown had not sufficiently demonstrated that all reasonable steps had been taken to secure the attendance of the witnesses. Consequently, the Crown’s Notice of Motion was dismissed. The decision underscored the importance of the Crown proving, to the satisfaction of the court, that it had made every reasonable effort to secure the presence of overseas witnesses. This ruling highlights the stringent requirements for admitting evidence from unavailable witnesses and the necessity for thorough documentation and justification of the steps taken to secure their attendance. The outcome of this case reinforces the importance of compliance with statutory provisions and the need for comprehensive evidence of efforts to obtain witness attendance when dealing with international witnesses.

Orders

Orders of the court

The Crown’s Notice of Motion is dismissed.

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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