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. 5. Briefly those provisions concern all reasonable efforts being made which have been unsuccessful to either find the witness or compel the witness's attendance. The evidence upon which the Crown relied was contained in a statement of Detective Senior Constable Whitton dated 26 March 2007. For reasons which will become apparent I do not need to go into detail about the contents of that statement. It lists efforts made to contact the two witnesses in question and demonstrates that those efforts were unsuccessful. 6. During the course of argument both counsel for each accused indicated that he took no issue on the question of the unavailability of each witness in accordance with s65(1). Hence the issue turned upon whether the relevant representations were made in accordance with s 65(2)(b) when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representations were fabrications. That provision has been the subject of some case law. Conveniently the most recent decision and the one binding on me is in Harris v The Queen which is reported in (2005) 158 ACrimR 454. That was a decision of the New South Wales Court of Criminal Appeal, the judgment being delivered by Mr Justice Studdert with whom Mr Justice Grove and Justice Whealy agreed. 7. That was a case concerning a witness who was allegedly assaulted at 6.30pm one night and who gave a statement to the police at 6.30pm the following night. At a later stage he died and hence was unavailable to give evidence and the Crown tendered his statement under the provision which is relevant to this case. The statement was admitted by the trial judge in that case and on appeal the appellant argued that it was not open to the judge to determine that the statement of the deceased made as it was, some 24 hours after the event, was made "shortly after" the event the deceased described. I take that summary of the argument from paragraph 38 of the judgment. 8. In his judgment Mr Justice Studdert referred to and extracted passages from a judgment of the Full Court of the Federal Court of Australia in Williams v The Queen (2000) 119 ACrimR 490. The passage extracted by Mr Justice Studdert appears at paragraph 36 of His Honour's judgment and is as follows: "For these reasons, it would be a mistake, in determining whether a statement has been made 'shortly after', to over emphasise such matter as whether the events in question were 'fresh' in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s652(b) is not based only upon the necessity to ensure that the event in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact". 9. At paragraph 37 of his judgment Mr Justice Studdert says that in referring to "proximate pressure" in the passage, "Plainly Their Honours had in mind again the question of temporal restraint." His Honour also referred to a judgment of the Court of Criminal Appeal in Regina v Ambrosoli (2000) 55NSWLR603 in which Mr Justice Studdert said it was determined that the circumstances upon which s65(2)(b) relevantly to this case focused were the circumstances of the making of the previous representation. 10. Mr Justice Studdert referred to and set out the factors by both counsel before the CCA said to be relevant to the question whether in that case the representations were made in circumstances that made it unlikely that it amounted to a fabrication. Three of the factors referred to by the Crown in that case were that the deceased's version was not inherently unlikely, that the statement given to the police was a formal statement which commenced in the usual way (that is His Honour set out the usual paragraph which commences Police Statement), and thirdly that in making the statement the deceased would have appreciated that there were witnesses in the club that the police would interview concerning what had occurred. 11. In the result Mr Justice Studdert concluded that it was open to the trial judge in the circumstances of that case to determine that what the deceased told the police was conveyed "shortly after" the incident he described. His Honour said that: " There is substance in the submissions advanced by the Crown and summarised concerning those circumstances which made it unlikely that the representations in this case were fabricated ." 12. I propose to follow the principles of law which are contained in that case. The submissions were made in this case two days ago and I briefly summarised them. The Crown Prosecutor drew my attention to the fact that the two relevant statements made in this case were both made on 31 January 2005 despite some accepted mistake in the dates in at least one of the statements and that the relevant events in question occurred on 30 January 2005. One of the statements was accompanied by a map which indicated that the statement or at least the map was drawn at 12.30am in the morning of 31 July 2005. 13. Mr Simpson acknowledged the force of the fact that that particular statement which as it turned out was the statement of Mr Sabanci was apparently made at 12.30 the following morning. However, focussing on the other statement he argued that it was not clear what time it was made and correctly submitted that it could have been made at any time within 24 hours after the events in question which occurred late on the night of 30 January 2005. 14. He submitted that the requirement of it being made shortly after should be read as meaning within an hour or two. He drew my attention to evidence given early in these proceedings by a witness called Mr Alatabbi and drew my attention to particular passages in that witness's evidence to which I will return. He pointed out that the issue of fabrication will loom very high in this trial amongst the persons who have given statements and that I should not be satisfied that the test has been made out. He referred to the stress or excitement that attended the circumstances of the giving of each statement. 15. The Crown Prosecutor pointed out in response that the two men in question were interviewed by different police officers. 16. Dr Webb on behalf of his client pointed out that the witness Mr Aabdazzahra was present with other people thereby giving rise to the opportunity for concoction. He submitted that it would not be unreasonable to raise the possibility that the witness would have at some time prior to making his statement have spoken with the other men who were involved. He later acknowledged that the relevant test is not a possibility of concoction but the test set out in the statute. He referred to the fact that Mr Aabdazzahra appeared to have vanished without any explanation and also referred to the fact that a record of departure of a person with a very similar name may not be that witness. 17. I am not inclined to accept that submission because it seems to me that the spelling of the name is so close and the date of birth is also likely to coincide with the witness Mr Aabdazzahra. 18. Dr Webb pointed out the relevance of the fact that the issue in this case was largely one between two different groups of Muslims, one Shi'ite and the other Sunni. 19. In addition Mr Simpson reminded me that there were a number of statements which he listed which were made on 31 January 2005. 20. In reply the Crown Prosecutor acknowledged the circumstances of the taking of the statements but argued that the circumstances were not conducive to collusion. 21. In forming an opinion on this matter I bear in mind what was said by the Full Court of the Federal Court in Williams that the "rational for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements he made be made spontaneously during (when) or under the proximate pressure (shortly after) the occurrence of the asserted fact." 22. In the case of the statement of Mr Sabanci I infer that his statement was made at around 12.30am on 31 January 2005. That was within a couple of hours of the events in question. In the case of the statement of Mr Aabdazzahra I infer that the statement was made within 24 hours of the events in question. There is absolutely no doubt that Mr Sabanci's statement was made under the "proximate pressure" of the occurrence of the asserted facts. Nor do I entertain any real doubt that given the nature of the events which were described Mr Aabdazzahra's statement was also made under that proximal pressure. 23. Considering the circumstances in which the two statements were made I have had regard to the passages in the evidence of Mr Alattabi which I was taken by counsel. It is clear that there were a lot of people at the police station that night. Mr Alattabi was asked whether there was much talking after the incident amongst those people. He said he could not "recall exactly because I was very much preoccupied with the incidents or confused". "People were talking to each other in Arabic and there were some people talking or relating what had happened there". They were talking "excitedly or loudly" "because they were emotional". 24. I regard the circumstances described by Mr Alatabbi as unlikely to be conducive to the representations contained in the statements being fabrications. It is not surprising as Mr Alatabbi says that the people were talking excitedly or loudly and that they were emotional. To my mind such and overall mood is not conducive to the calmness and detachment required to fabricate an account. 25. I also take into account that both statements were not inherently unlikely and each statement was introduced by the standard clause which introduces police statements and I set out the one which introduced the statement of Mr Aabdazzahra as follows: "This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true." 26. In addition each witness would have appreciated that the police would have been interviewing other witness about the same events. For these reasons I am of the opinion that both of the statements in question were made shortly after the asserted facts occurred and in circumstances that made it unlikely that the representations were fabrications. Accordingly if evidence is tendered at the trial of the representations made in both statements I rule that the hearsay rule will not apply to that evidence. oOo 17/01/2008 - Typographical error - Paragraph(s) 1 09/05/2008 - Typographical error - Paragraph(s) 1 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.