Regina v Amir Ibrahim El Mostafa & Saleh Khodr [2007] NSWDC 278

New South Wales District Court

CITATION: Regina v Amir Ibrahim El Mostafa & Saleh Khodr [2007] NSWDC 278 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 April 2007

JUDGMENT DATE: 5 April 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The hearsay rule will not apply to statements if tendered at trial.

CATCHWORDS: Voire Dire Judgment - Unavailable witness - Hearsay rule and witness statements - Statement made under proximate pressure of event - Unlikely to be a fabrication

LEGISLATION CITED: ss65, 67 Evidence Act 1995

Harris v The Queen (2005) 158 ACrimR 454 CASES CITED: Regina v Ambrosoli (2000) 55 NSWLR 603 Williams v The Queen (2000) 119 ACrimR 490

PARTIES: Regina Amir Ibrahim El Mostafa & Saleh Khodr

FILE NUMBER(S): 06/11/0574; 06/11/0047

Mr P Calvert for the Crown COUNSEL: Mr C Simpson for the accused Mr El Mostafa Mr B Webb for the accused Mr Khodr

Ms S Fleming for the NSW DPP SOLICITORS: Ms T Duffy for Mr El Mostafa Mr E Rahme for Mr Khodr

JUDGMENT 1. This is my judgment in the application concerning s67 and s65 of the Evidence Act. The Crown has issued three notices pursuant to s67 of the Evidence Act 1995. The notice in respect of one witness, Mr Al Macdadi, is not pressed at this stage and I say nothing further about it.

2. The other two notices concern two witnesses respectively, one named Ahmed Aabdazzahra and the second one concerning the witness Yussuf Sabanci. Both notices specify that the Crown seeks to rely upon the provisions of s 65(2) of the Evidence Act to adduce evidence of previous representations which are contained in statements by each respective witness attached to the corresponding notice. Neither defence counsel took any issue about the adequacy or otherwise of the notice under s67. 3. When it came to arguing this matter the Crown Prosecutor indicated that the specific provision upon which he relied was s65(2)(b) as well as of course s65(1). It is convenient to set out the relevant provisions of s 65(1) of the Evidence Act: "This applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact." The relevant portion of s65(2) provides: "The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication." 4. The basis upon which the Crown sought to convince me of the fact that the witnesses were not available in accordance with s65(1) was in accordance with clauses (e) and (f) of the definition of the unavailability of persons contained in Part 2 of the Dictionary to the Evidence Act.