R v Batak (No 4) [2022] NSWSC 518

Supreme Court New South Wales

Medium Neutral Citation: R v Batak (No 4) [2022] NSWSC 518 Hearing dates: 28 April 2022 Decision date: 28 April 2022 Jurisdiction: Common Law - Criminal Before: R A Hulme Decision: Evidence not admissible Catchwords: EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions — criminal proceedings where maker not available where representation against the interests of the person who made it at the time it was made and was made in circumstances that make it likely the representation is reliable — trial judge not affirmatively satisfied that the evidence is likely to be reliable — evidence not admissible Legislation Cited: Evidence Act 1995 (NSW), ss 65, 128 Cases Cited: Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 Texts Cited: Wigmore on Evidence, 3rd ed (1940) Category: Procedural rulings Parties: Regina Cem Batak Representation: Counsel: Ms S Traynor (Crown) Mr T Hughes (Accused)

Solicitors: Solicitor for Public Prosecutions Fahmy Lawyers File Number(s): 2019/260254

Judgment 1. HIS HONOUR: The Crown proposes to adduce evidence of representations made by Sargon Odisho in the course of giving evidence in this Court on 16 February 2022 in what might be referred to as a Basha hearing. The Crown also seeks to adduce evidence of representations made by Mr Odisho in the course of giving evidence in the trial of R v Cengiz Coskun on 14 March 2022. 2. The accused objects to the evidence on the basis that the requirements of admissibility in s 65 of the Evidence Act 1995 (NSW) are not met. 3. The Crown also proposes to adduce, and to some extent has already adduced, evidence of previous representations made by Mr Odisho in a recorded conversation with the police at the scene shortly after the occurrence of the events in question on 2 April 2019, and in a conversation later that day at Royal Prince Alfred Hospital. There is no objection to the admissibility of that evidence. 4. A significant issue in relation to the representations made by Mr Odisho at the scene and at Royal Prince Alfred Hospital is the description he provided of the two intruders who entered the flat in the early hours of 2 April 2019 and who were present for the incident which culminated in the alleged murder of John Odisho, Mr Sargon Odisho's housemate. 5. The Crown contends that the description of those two intruders provided by Mr Odisho in the two recorded conversations on 2 April 2019 are false in certain respects. The Crown says that is made clear by evidence given by Mr Odisho under oath on the two subsequent occasions, in this Court, which are the subject of the objection. 6. The defence case is understood to include an argument to be made to the jury that the description of the two intruders provided by Mr Odisho to police on 2 April 2019 may be taken as correct. 7. Absent the evidence given by Mr Odisho on 16 February and 14 March 2022, the Crown will be left making a submission that the jury should not accept the description of the intruders given by Mr Odisho on 2 April 2019, with little or nothing to support that submission. 8. Given the defence objects to the recordings of Mr Odisho giving evidence in court on those two occasions being adduced, it is necessary for the question of admissibility to be determined upon the basis the Crown contends; that is, s 65(2)(d) of the Evidence Act. There is no question that the maker of the representation, Mr Odisho, is "unavailable" within the meaning of that term in the Dictionary to the Evidence Act. He has flatly refused to give evidence in this trial. 9. One of the ways by which the prior representations may therefore be admissible under s 65 is, according to sub-s (2)(d), that the representations were (i) "against the interests of the person who made it at the time it was made" and also (ii) "made in circumstances that make it likely that the representation is reliable". 10. The Crown has referred me to the well-known authority concerned with s 65, Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32. I have had regard to my broad recollection of that case but also specifically to the passages extracted in the written submissions of the Crown from the judgment at [65], [69] - [72]. 11. At [64] there was reference, with approval, to a statement made in Wigmore on Evidence that a relaxation of the exclusionary effect of the hearsay rule was warranted where the circumstances "are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed". 12. At [70] it was said: "The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted". 1. In [71] it was said, in part: "The circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact." 1. That is of some relevance because the Crown submissions made a number of references to the actual evidence given by Mr Odisho on 16 February 2022, in support of the contention that the circumstances are such as to make it likely the representations were reliable. 2. There is one further reference I wish to make to the judgment in Sio and that is in [72], where it was said in part: "[T]he whole point of section 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial." 1. The circumstances that make the prior representations likely to be reliable in this case, according to the Crown submissions, importantly include the fact that the representations were made by Mr Odisho whilst on oath and after he had received legal advice. There is reference to that legal advice at page 33 (and following) of the transcript of Mr Odisho's evidence on 16 February 2022. The advice it was suggested he seek and which he did in fact obtain apparently was directed to whether he could make an objection to giving evidence under s 128 of the Evidence Act. 2. The bare fact of somebody giving evidence on oath does not inherently, by itself, mean that the evidence is likely to be reliable. The fact that the Evidence Act acknowledges this in provisions such as s 165 supports that view. In other words, merely because evidence is given on oath does eliminate the possibility that it may still, for certain reasons, be unreliable. 3. The circumstances in this case that are appropriately taken into account in my view include that Mr Odisho is currently serving a sentence for serious drug supply offences as well as offences in relation to firearms, including his possession of handguns and ammunition. The circumstances also include that he was clearly a reluctant witness. He gave evidence in response to certain questions, but frequently indicated that he was "not comfortable" answering questions. That was his formulation; in reality it was a pseudo-polite way of saying he was not going to answer. 4. The submissions in support of admissibility included an invitation to look at the evidence itself in some respects. For example, it was submitted, amongst other things, that at an early stage the evidence could be seen to be coherent in relation to a number of topics and so in relation to those topics there was no indication that the circumstances made the evidence unreliable or not likely reliable. It was submitted the fact that when Mr Odisho did not wish to answer a question he clearly stated so rendered the answers he did choose to give capable of being regarded as evidence given in a manner which would not indicate unreliability. 5. The Crown appeared to suggest I should look closely at what was actually said by Mr Odisho and thereby form a view that his evidence might be reliable and proceed to factor that into an assessment of whether the circumstances are such to make his evidence reliable. I am not prepared to do that. 6. I am not persuaded that the Crown has made good the submission that the circumstances in which the evidence was given make it likely the representations were reliable. 7. I also have misgivings about a number of the submissions concerning the first limb of s 65(2)(d); that the representations were against the interests of Mr Odisho at the time that they were made. 8. I accept that he disclosed criminality for which he had not been dealt with, either by way of charge or by way of material being taken into account in his sentence proceedings. However, I am not sure of the extent to which he might have been aware the evidence he gave was in fact against his interests. As I indicated in exchanges with the Crown Prosecutor, I am of the view that it is relevant to have regard to whether the person was aware that their evidence might be against their interests in the assessment of the degree to which the representations might be reliable. 9. The Crown relied upon two contentions; first that Mr Odisho gave evidence in which he disclosed criminality for which he had not been punished; and second, that he admitted lies which would adversely affect his reputation. 10. I am not in a position to make a judgment that Mr Odisho appreciated that what he was saying was against his interests in the sense that might have adverse penal consequences for him. Further, I am not sure to what extent he was concerned, if at all, about any damage to his reputation that might follow any admission by him that he had previously lied to police. 11. If it could be concluded he was aware of those possible consequences, yet gave the evidence in any event, that might support such matters bearing favourably on his reliability in those circumstances. I am unable to determine that he was aware of such matters, and even if he was, I am unable to determine whether they were of any concern to him. 12. As was said in Sio v The Queen at [70], the requirement is for the trial judge to be affirmatively satisfied that the representations are likely to be reliable evidence of the fact asserted. I am not affirmatively satisfied. The evidence of the representations made by Mr Sargon Odisho on 16 February 2022 is not admissible.