New South Wales District Court CITATION: R v Tran [2007] NSWDC 131 HEARING DATE(S): 26/04/07 JUDGMENT DATE: 26 April 2007 JURISDICTION: Criminal JUDGMENT OF: Norrish QC DCJ DECISION: See paragraph 39. CATCHWORDS: Criminal Law - Evidence - Application to exclude out of court representations of co-accused in agreed statement of facts - s65 Evidence Act. LEGISLATION CITED: Evidence Act 1995 CASES CITED: Regina v Suteski [2002] NSWCCA 509 Ordukaya v Hicks [2000] NSWCA 180 PARTIES: Regina Cong Khanh Tran FILE NUMBER(S): 06/11/0824 COUNSEL: Mr Magnus - Crown Mr Lakatos - Offender JUDGMENT Application to exclude out of court representations by Giac Nguyen. 1 HIS HONOUR: In relation to the first application of the accused Cong Khanh Tran, that evidence of reported out of court representations made by Giac Nguyen sought to be relied upon by the Crown be excluded, I propose to grant that application and order that those purported representations be not admitted in any forthcoming trial in relation to Mr Tran. I will give my reasons now for coming to that conclusion. 2 Cong Khanh Tran was today arraigned on a charge alleging that he, on or about 25 November 2004 at Belmore in the state of New South Wales, supplied a prohibited drug namely heroin, being an amount not less than the commercial quantity for that drug. On arraignment the accused pleaded not guilty. Thereafter followed what could be called a voir dire examination to determine the admissibility of representations purportedly made by Giac Nguyen prior to the commencement of these proceedings in an Agreed Statement of Facts that were tendered at Mr Nguyen's sentencing proceedings. The Agreed Statement of Facts constitutes Exhibit 1 in these proceedings, however it became apparent after a short period of time that the Crown did not intend to rely upon all of the contents of that Agreed Statement of Facts. I shall shortly refer to the material sought to be relied upon by the prosecution. I point out that the "Agreed Statement of Facts" is dated 25 September 2006. At the bottom of the fourth page are purportedly the signatures of Mr Nguyen, who I shall hereinafter refer to as the "Co-accused", a solicitor by the name of Michael Croke, and a Detective Senior Constable of Police of the New South Wales Police Force, Detective Senior Constable Gary Lowe. The Agreed Statement of Facts was tendered by the prosecution in the prosecution of the co-accused and as I understand it, and it is not disputed, it was relied upon by the learned sentencing judge for the purposes of sentencing Mr Nguyen. I point out that it would appear on the Agreed Statement of Facts I have that the co-accused was facing an additional charge other than a charge related to the matter upon which Mr Tran has been arraigned in this court today. 3 The relevant charge concerning the co-accused to the current proceedings would appear to be that described as "Count 2" in the Agreed Statement of Facts. The Agreed Statement of Facts has a large number of what could be called "representations" in it, relating to Mr Tran, the applicant here. The particular representations relied upon however, within the document at page 3, are: "On the evening of 25 August 2004, Police were monitoring a LD (listening device) at 4/84 Waverley Street, Belmore. At about 9pm a person by the name of Cong Khanh Tran (Tran) arrived at the unit. He was let in by the accused. He was seen to be carrying a plastic shopping bag. From the video installed in the flat he removed a large number of bundles of cash. The accused and Tran counted out eight separate bundles (representing $80,000) and a further bundle (representing $5,000). These nine bundles were placed into the plastic bag ... the $80,000 was payment for ten and a half ounces of heroin (294 grams). The extra $1,000 was a delivery payment for the suppliers delivering the heroin to Tran." 4 The learned Prosecutor informs me by reference to that material that the representations as they arise from the that part of the Agreed Statement of Facts are firstly, that the accused Tran attended upon the relevant premises on the date and time alleged, secondly, that the accused Tran was carrying a shopping bag which contained the cash identified, thirdly, that the accused Tran discussed the contents of the bag with the co-accused, and that finally, the accused Tran received ten and a half ounces of heroin for the payment of the cash identified in the Agreed Statement of Facts. 5 The evidence in that form is objected to by the applicant represented by learned Senior Counsel, Mr Lakatos. The reason that the Crown seeks to rely upon the portion of the Agreed Statement of Facts to which I have referred is that the co-accused is an unavailable witness. I need not dilate upon that matter beyond observing that the co-accused was brought to Court today and made it clear that he did not wish to give evidence, he did not wish to take an oath and he did not wish to co-operate with the prosecution or the Court in any way. This was a fact, as I understand it, known to the prosecution before today and was known to the defence as well. The matter could have been forced by requiring the witness to take an oath and then take such action as was appropriate should he fail to do that or, if he took an oath, failed to answer proper questions asked of him by the learned prosecutor. I certainly do not infer any impropriety in any way, shape or form by the prosecutor calling him to court today, knowing that he would be uncooperative. Ultimately, for the purposes of resolving the issues litigated before this court, I am of the view that because of his non-cooperation and the fact, as I divine it, he would not cooperate in my view even if required to give an oath, even if subject to the threat of being held in contempt of court, Mr Nguyen is relevantly an "unavailable witness". 6 The significance of this fact, as it ultimately emerged during the course of the day, is that the learned prosecutor as he outlined at the outset of the proceedings, asserts that the Agreed Statement of Facts, or that portion of it relied upon by the prosecution, is admissible to prove the truth of any representations therein contained, pursuant to Part 3.2 Evidence Act 1995 and particularly pursuant to s 65 of that Act. I need not go through the scheme of the Act in detail. It would be well-known to the parties and of course generally within the legal community, but primarily the situation is that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. There are exceptions, however, to that general rule. The relevant representation must be made by a person who had personal knowledge of the relevant asserted fact and there is a restriction on such representations to what is described as "first hand hearsay" in this Part of the Act. The relevant provision relied upon by the prosecution to admit the evidence of the agreed facts, is s 65 Evidence Act. S 65 provides, relevantly, that the section is concerned with the previous representation made by a person who is "not available to give evidence about an asserted fact". As I said before, relevantly, for these proceedings, it is without dispute that the witness is unavailable. This section further provides at (2); "The hearsay rule does not apply to evidence of a previous representation that is given by a person ... if the representation was either c) Made in circumstances that make it highly probably that the representation is reliable or d) against the interests of the person who made it at the time it was made." 7 Ultimately as the matter has developed, it is quite clear that the Crown relies upon the latter of these alternatives set out in (s 65(2)(d)). The Crown asserts that the relevant portion of the Agreed Statement of Facts and particularly the representations which I have identified, is "against the interests of the person who made it at the time it was made". I have been referred, in terms of the interpretation of this provision in the context of the wider provisions of the Evidence Act to the decision of Regina v Suteski [2002] NSWCCA 509, to which I will refer shortly. Interestingly, a matter that I particularly raised with counsel as to the anomaly of the terms of s 65(3), (4), so far as the limitations upon sworn evidence by a person such as an accomplice or a co-accused, is discussed in Suteski. For the purposes of this judgment I acknowledge that those particular provisions have no relevance to the interpretation of s 65(2) or related provisions, however it must be fairly said it is a glaring anomaly in the scheme of the section. However, it does not in any way influence my decision and I need not dwell upon it any further. 8 In relation to s 65(2)(d), I note that the terms of s 65(7) insofar as it illuminates the term "against the interests of a person who made it". In general theory one would have to clearly acknowledge that ordinarily an Agreed Statement of Facts in its terms would be "against the interests of the person who made it", because it is upon those Agreed Statement of Facts that a person is to be sentenced and that was the case of Mr Nguyen's situation. There are, however, in the contemplation of s 65(2) a number of matters that need to be particularly identified in order to determine the admissibility of the material relied upon by the Crown. 9 An important threshold matter is, of course, determining what relevantly is a "representation" for the purposes of the Section. In that regard the "Dictionary" definitions of the Act are most unhelpful. When one turns to the expression "representation" as such, the dictionary states "representation includes: (a) an express or implied representation whether or in writing or (b) a representation to be inferred from conduct or (c) a representation not intended by its maker to be communicated to or seen by another person or (d) a representation that for any reason is not communicated. 10 This might give us examples of representations. It does not necessarily provide a helpful guide as to what is in fact a "representation", except by inference perhaps. 11 Be that as it may, as I would understand the prosecution's position in this matter, what is contained within the Agreed Statement of Facts is relevantly a "an express or implied representation...in writing". In that regard I take into account Part 2 of the Dictionary. In relation to representations in documents, Paragraph 6 of Part 2 states "for the purposes of this Act a representation contained in a document is taken to have been made by a person if: (a) the document was written, made or otherwise produced by the person, or (and this is the most relevant part) (b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document" 12 It is at this point that I need to examine some of the evidence available to me and other matters that arise from the voir dire examination that I have taken into account in coming to the conclusion I have reached that s 65(2) has not been satisfied to permit the admission of the relevant portion of the Agreed Statement of Facts. 13 Firstly, I have available to me a pre sentence report that was tendered at the sentence proceedings of Mr Nguyen. I have seen Mr Nguyen in the flesh and I have had the benefit of evidence from his solicitor, Mr Croke, whose evidence I will deal with in greater detail shortly. I think it could be fairly concluded from the material available to me at this point of time that Mr Nguyen was a person born in Vietnam. The pre sentence report states, and I do not think it is disputed, that he was born on 25 October 1963. I appreciate of course that the pre-sentence report contains a great deal of hearsay information but it would seem that the basic facts are not in dispute in that he apparently left North Vietnam, or Vietnam as it was then known, around about 1987 after "defecting" or fleeing to Hong Kong. He spent three years apparently in a refugee camp and then went to New Zealand in 1990 and then came to Australia apparently in 1995. Even if those last particulars are not a hundred per cent accurate it is quite clear that Mr Nguyen is a man who had lived in Vietnam until his adulthood had commenced and that for him English was a second language. It would appear, if one was to include the time that he was in Hong Kong where English is a widely used second language, that he has lived in communities where English is widely used for approximately twenty years. 14 Mr Croke gave evidence before me in relation to Mr Nguyen and his observations of Mr Nguyen that he spoke English quite poorly, that his comprehension of English was not good and that he suspected that he could not read English. I note in relation to his unchallenged evidence, although in fairness the Crown called him in chief and did not have the opportunity to cross-examine him, that Mr Nguyen when he conferred with Mr Croke, had a private interpreter present. If my note is correct apparently it was a young woman, her identity is unknown, and it would appear that Mr Croke was indicating that the primary communication he had with the co-accused was through this interpreter, although clearly there must have been some English exchange between he and Mr Nguyen to enable him to express the opinion that his English was poor. I note in relation to this aspect of the matter that Mr Croke, as I would understand it, does not speak Vietnamese. No-body has suggested that he did, nor has anyone suggested that he had the capacity to communicate with his client in that language. 15 In relation to the agreed Statement of Facts, it should be firstly pointed out that the document is prepared in what could be called the "third person". It is a document prepared for the purpose of presenting Agreed Statement of Facts for the sentencing of Mr Nguyen in relation to the charges to which he pleaded guilty. It is a document which in its terms is significant insofar as it outlines the basis upon which Mr Nguyen was implicated in the commission of the offence and not the current accused, because he was not a party to those proceedings. 16 In considering this matter I note the evidence of Mr Croke that he expected that the document had been explained to the co-accused but he did not remember the circumstances in which it was explained. He described his normal practise would be to "explain the document" and he said particularly that he was satisfied that the document was, as I understood his word, "tenderable", when he was asked a question "were you satisfied that he understood the contents of the document". When that question was pressed he said, "I suppose he understood it, however I cannot remember if the document was read to him and interpreted to him". 17 The document itself was the product of some negotiations which had occurred between Mr Nguyen's legal counsel and the Crown Prosecutor responsible for the prosecution of him. It would appear the co-accused had initially faced a more serious charge than at least the one with which this particular accused Mr Tran is concerned. 18 I have taken some little time to identify particular aspects of the evidence of Mr Croke in relation to this matter, admittedly in the absence of the benefit of any transcript. The reason I have done this is because it seems to me to take up an aspect of the submissions of Mr Lakatos SC, that, bearing in mind what the learned Crown has very properly drawn to my attention Part 2 of the Dictionary of the Act and particularly paragraph 6, there would need to be, at the very least one would have thought, reasonable evidence that the particular representations sought to be relied upon by the prosecution, were in fact recognised by the co-accused by his "signing, initialling or otherwise marking the document". I note in relation to the document itself that there is nothing on it to signify that the documents in its terms had been interpreted or translated for Mr Nguyen. There is no signature of the purported interpreter. Merely, I would accept on the evidence of Mr Croke, the fact that in terms of the affixing of signatures, that Mr Croke was a witness to the signature of the co-accused. There is, if I may describe it very loosely, no jurat indicating in English or in Vietnamese that "I (the accused) have had this document interpreted for me and I agree that its contents are correct in every material particular" or words to that effect. Whilst I accept, as the Crown would urge me, that his signature upon the document is prima facie evidence of what is said to be a signing of the document such as to recognise the representations, of itself, in the circumstances that I have outlined, is not necessarily so in this matter. 19 There is a more subtle aspect to the matter, however that needs to be considered in the context of determining whether s 65(2)(d) is invoked. That is the question of whether the relevant representations that the Crown wishes to rely upon are sufficiently acknowledged by the co-accused. I have identified those particular representations. They are concerned with, in effect, the identification by the co-accused of this accused as being the person who did various things during the evening of 25 August 2004 that I have outlined. I have difficulty accepting that the signature per se is reasonably to be regarded in the circumstances as recognising that particular presentation. It may be a matter more relevant either to the reliability of the representation on one view of it, and that does not arise now in this matter given the basis of the Crown's application to admit the evidence. Or it may be more relevant to the issue of the discretion to exclude the evidence pursuant to s 137 Evidence Act 1995. However the truth of the matter is that in making admissions against interests as may be, said to be the effect of an Agreed Statement of Facts, the role of others may not be necessarily as important a matter for consideration by an accused person (such as Mr Nguyen) than the admission of his own responsibility and his own acts in respect of the matters with which he was charged. 20 This is to be seen too in the context of the fact that the co-accused had not given an undertaking to assist the Crown at the time of the statement of the agreed facts. In fact, he has never given any undertaking in that regard, has never "out of court" expressed to the prosecution, or those that assist the prosecution, that the statement of facts is reliable in all respects or in relevant respects for the purposes of implicating the accused or any other person, or that he would at anytime be willing to give evidence against the accused in terms of the document. 21 I identify this matter because it seems, on analysis, to have a relationship to the issue, as it is expressed in s 65(2)(d), of whether the representations upon which the Crown rely that I have identified are relevantly representations that are "against the interests of (the co-accused)". It seems to me on all the material that I could not necessarily conclude that that was so. The extent to which the agreed facts identify the conduct of third parties is, it would appear on all the material, not a vital or, ultimately, even a necessarily relevant factor so far as the description of the accused's own guilt expressly stated or implicitly stated in the Agreed Statement of Facts. 22 That that brings me back to the decision of Suteski, just for the moment, because I accept, as I must and I would have in any event, that Suteski is authority for the proposition that the out of court representations of a co-accused who is not available for cross-examination may be admitted into evidence as evidence of the facts contained within the representations. In other words they are admissible for hearsay purposes, even when firstly they directly implicate the accused for trial and where the co-accused is not available, for the giving of evidence, and cannot be cross-examined and tested as to the reliability, accuracy or truthfulness of the relevant representations. 23 It should be pointed out in relation to the matter of Suteski however that in reality, in a range of ways, it is a very different situation than the current situation. As far as I am aware this is the first occasion, at least of which the parties are aware as well, where the out of court representations are contained within an Agreed Statement of Facts signed by a person for whom English is not a primary language and who ordinarily would require the services of an interpreter. 24 In Suteski the relevant material that was admitted was material contained within an electronic interview conducted with Ms Suteski's "co-accused", a man by the name of Sakisi. Mr Sakisi's account of events was that, so far as the matter of murder with which the appellant was charged, the appellant approached a mutual friend whose boyfriend, Ben Sakisi, expressed an interest in killing a person that the appellant wished killed for money. Mr Sakisi contacted a friend of his who, as I understand the summary of the Crown case at [11], struck the deceased with a hammer and stabbed him with a knife, thereby causing his death. At the time Mr Sakisi and that third person were drug dealers and users and it would appear that at the trial of Ms Suteski, Mr Sakisi for reasons I need not dwell upon, became unavailable. There was other evidence, of course, implicating the accused in that matter. Relevantly, Mr Sakisi gave an electronic interview to the police on 25 January 2000 and at between paragraph 64 and 74 are a number of extracts from that interview which were relied upon by the Crown to prove the fact of the matters asserted by Mr Sakisi in his interview. 25 As in this matter, the Crown relied upon the relevant representations as being "against the interests" of the man who made them, Mr Sakisi, and the learned trial judge held that they were against his interests and they were admissible pursuant to s 65(2)(d) and that the relevant representations were not to be excluded in exercise of the discretion pursuant to s 137. 26 Putting aside the issue of reliability, which does not arise now and was not relevant as the Court of Criminal Appeal held in Suteski because of the basis upon which the material was admitted, the out of court representations of Mr Sakisi came out of his own mouth. The representations were expressed, if one could use a very general description, in the first person. They were particular, as they went to the jury, and it could not be argued in any way, shape or form that they relevantly did not constitute reasonable evidence of "representations" made by a person out of court upon which the Crown could rely to prove particular facts. On analysis, that is far removed from this situation for the reasons I have outlined. No threshold questions of interpretation of the word "representation" arise on my analysis of the judgment to which I have been referred. 27 I acknowledge that if I believe there was reasonable evidence of the making of a relevant representation then the only matter that I would be considering in this application is the question of the exercise of the discretion available under s 137 Evidence Act. I trust I have done justice in this ex tempore manner to the issues that, to my mind, arise out of the interesting application that proceeded before me today. I hope I have done justice to those matters that have been advanced on behalf of the learned Crown and the learned counsel for the accused. 28 Of course it must be said that they are not the only issues that I have had to consider in this matter. Some of the submissions made by learned senior counsel of the accused were accurately portrayed by learned senior counsel for the Crown as relating to a basis for admissibility that did not apply, that is s 65(2)(c). As I have earlier indicated, the Crown strongly relied upon the fact that it claimed that what was to be led from the agreed facts was against the interests of the person who made the relevant representations and that the information was relevantly a "representation" for the purposes of the Evidence Act. 29 However there arises from the submissions made by learned senior counsel for the accused, several matters that need to be commented upon because I do not wish to be regarded as having had what may be colloquially called "an each way bet". There seems to me, even if I was in error in determining that s 65(2)(d) Evidence Act did not apply, a proper basis for excluding the relevant material in exercise of the discretion available under s 137. 30 It must be fairly said in the context of the discussion of this matter in Suteski itself, that is the discretion pursuant to s 137, that the evidence sought to be relied upon by the prosecution does not have great probative value as defined in the Evidence Act. It does not have great probative value because in its terms because, putting aside the fact that there may be other evidence that the prosecution may wish to lead such as the contents of a listening device tape that supports the representation, the statement of facts as I have earlier pointed out is prepared quite clearly for a limited purpose of establishing those facts upon which the co-accused must be sentenced. The preparation of such a document obviously has no implications directly for a co-accused such as Mr Tran as he is not a party to the proceedings. In such a situation involving an admission of guilt by the co-accused, the potential truthfulness of statements made about the involvement of others is ordinarily not so vital or not necessarily vital. 31 For good reason courts approach statements of facts implicating third parties, where they are not relied upon for the purposes of further evidence to be given by the person to assist the Crown, with some circumspection. I have often found myself in the situation of being given an Agreed Statement of Facts involving the role of the accused to be sentenced, implicating third, fourth and fifth parties, and discovered to my horror that after I have sentenced that particular accused, those third, fourth and fifth parties have come to this court to be sentenced on a different statement of facts in relation to the same charges. I have discovered that representations made in the first statement of facts about the role of the third, fourth and fifth parties are not either relied upon by the Crown or not established on other evidence in the sentencing of those other persons who come to court later to be sentenced. I am not necessarily saying that that ultimately would be the case here, had the circumstances been different and this accused had come to this court for sentence rather than for trial. But that practical illustration highlights the circumspection with which one must approach anything other than a direct admission against interest by an accused person when they either sign or acknowledge the accuracy of an Agreed Statement of Facts. 32 In relation to the matter also I bear in mind of course other features touching upon the probative value, some of which I have already discussed in passing in a different context. First of all, the relevant part of the agreed Statement of Facts is in a third person narrative, albeit that with the assistance of the learned Crown I have been able to identify the relevant representations or claim to exist in the document. Secondly, as I have pointed out, the document is in English and the person who allegedly made the representations if they be representation, is a primarily Vietnamese speaker who, I am quite satisfied, would be relied upon an interpreter to properly understand anything written in English on a document on the basis of all the material available to me. I have no evidence available to me that the relevant portion of the Agreed Statement of Facts was read to the co-accused and expressly adopted by him as accurate. It may be of course that he understood the general implications of the statement of facts but in the context of seeking to rely upon this material as evidence of representations under the Evidence Act there would need to be, reasonable evidence of the fact that the co-accused had been alerted to the precise detail of the relevant matters sought to be adduced by the Crown implicating Mr Tran. 33 Of course there is that very issue discussed in Suteski particularly, it would seem, from [109] onwards, but more particularly at [116] to [118] and then again at [125] to [127]. Given the attitude of the co-accused, hence the Crown's wish to rely upon the Agreed Statement of Facts, there would be no opportunity for the current accused to cross-examine the co-accused quite obviously as to the accuracy and reliability of Agreed Statement of Facts, and the circumstances of the signing of the Agreed Statement of Facts. There would be, on the basis of the evidence of Mr Croke, no means of independently verifying that the co-accused had an opportunity to be fully informed of the document, insofar as it implicates this accused as opposed to implicating himself. 34 I appreciate the complexity of the issue of "unfair prejudice" and I appreciate that the fact that a defendant cannot cross-examine a witness is not necessarily decisive of the issue which arises in relation to the provisions, to cite what has been said in Ordukaya v Hicks [2000] NSWCA 180 and expressly referred to in Suteski at [126]. However, in Suteski it was held by the Court in the judgment of the then learned Chief Judge at Common Law, that "the decisions on this issue of unfair prejudice arising from an inability to cross-examine quite clearly depend upon their particular facts, that is, upon the character of the evidence involved and upon the nature or strength of the potential prejudice to the defendant. Each case, in my view, needs to be examined individually by reference to the well-understood balancing exercise". 35 Of course in that context I obviously must acknowledge as a humble and mere District Court judge what is said by the learned Chief Judge at Common Law, as he then was, at [116] as to what the meaning "unfair prejudice" means or "unfairly prejudicial" and other cognate expressions mean is set out in the various authorities which have been identified in that particular judgment. 36 Insofar as that issue was discussed in Suteski it must be fairly said that the circumstances of this matter are well removed from the situation in that decision, putting aside the fact or the possibility that there was other evidence which might support the reliability of Mr Sakisi's version in the ERISP upon which he could not be cross-examined. In that matter the representations themselves were reliably proved by the very nature of the document that is the electronically recorded interview, which was to be used to produce the representations in court. 37 As I say, if I am in error in my assessment of the evidence as it relates to establishing those matters that need to be established to invoke s 65(2)(d) I would have, in any event, exercised the discretion available pursuant to s 137 because when the balancing exercise is undertaken and the probative value of the evidence is outweighed by the prejudicial effect or unfair prejudice of the evidence, the evidence must be excluded and this is such a case. 38 I conclude by observing I am fully appreciative of the fact that these are very serious allegations and I am fully aware of the fact that the trade in heroin is something that of course the courts must be vigilant to ensure, by applying the law, is stamped out. The guilty must be brought to justice and the guilty must be severely punished. But the critical issue is whether the law permits a person to be found guilty or, to put it another way, allows evidence to be admitted. The appropriate approach to the matter is not to achieve some outcome that might satiate the community interest, but to do one's best to apply the law as one understands it. Of course in this matter that requires a close consideration of the terms of the Evidence Act to ensure that only that evidence which the Act permits to be admitted is admitted to establish or to assist in establishing the guilt of a relevant accused. 39 Thus, as I outlined at the outset, I would not admit the evidence of the out of court representations claimed to have been made by the co-accused in Exhibit 1 at the trial of Mr Tran. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.