Reported Decision : 140 A Crim R 545 New South Wales Court of Criminal Appeal CITATION : Regina v Kazzi; Regina v Williams; Regina v Murchie [2003] NSWCCA 241 HEARING DATE(S) : 28/08/03 JUDGMENT DATE : 28 August 2003 JUDGMENT OF : Ipp JA at 1; Grove J at 20; Dowd J at 21 DECISION : Order made by Robison DCJ, ruling that the statement of Vikram Gujral dated 13 May 2001 was not admissible in evidence, be vacated. CATCHWORDS : EVIDENCE - CRIMINAL LAW - Evidence Act, s 65 - Whether trial judge erred in refusing to admit the evidence of a statement made by Crown witness - Whether witness was available to give evidence - Whether facts asserted in witness statement were fabricated - Whether respondent would sustain relevant prejudice were the statement to be admitted. Criminal Appeal Act 1912, s 5F LEGISLATION CITED : Criminal Procedure Act 1986, s 289 Evidence Act 1995, s 65 Regina v Joseph John Kazzi PARTIES : Regina v Mark Raydon Williams Regina v Richard Alan Murchie FILE NUMBER(S) : CCA 60300/03; 60301/03; 60302/03 COUNSEL : D C Frearson (Crown) R Hulme SC (Respondents) SOLICITORS : S E O'Connor (Crown) Neil J O'Connor & Associates (Respondents) LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1067; 01/11/0989; 01/11/1007 FILE NUMBER(S) : LOWER COURT Robison DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60300/03 60301/03 60302/03 IPP JA GROVE J DOWD J Thursday 28 August 2003 REGINA v Joseph John KAZZI REGINA v Mark Raydon WILLIAMS REGINA v Richard Alan MURCHIE Judgment 1 IPP JA: This is an appeal by the Crown pursuant to s 5F of the Criminal Appeal Act 1912 against a decision by Robison DCJ refusing to admit the evidence of a statement by one Vikram Gujral. 2 The three respondents are facing trial in the District Court on three charges. The third count on the indictment is that each of the three accused on 13 May 2001 at Fairfield, being then armed with a dangerous weapon, namely a shotgun, did rob Vikram Gujral of certain property, namely a large number of mobile telephones, as well as telephone accessory kits, the property of Mayne Nickless Limited. 3 The statement of Mr Gujral tendered by the Crown is crucial to the Crown case. Without that evidence the Crown will not be able to prove the charge. 4 At the trial the Crown submitted that Mr Gujral's statement was admissible under either s 65 of the Evidence Act 1995 or s 289 of the Criminal Procedure Act 1986. Robison DCJ refused to admit the statement. Section 65(1) of the Evidence Act which provides that: "This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact". The expression "taken not to be available" is defined in the Dictionary to the Act. Clause 4(1) of Part 2 of the Dictionary provides: "4(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: .... (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success". 5 The respondents put in issue the question whether the Crown had taken all reasonable steps to find Mr Gujral and secure his attendance. 6 Section 65(2) of the Evidence Act provides: "(2) 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 (a) .... (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication". 7 The respondents put in issue whether the statement was taken in circumstances that made it unlikely that the facts asserted therein were fabricated. 8 As regards the availability of Mr Gujral, the police made extensive inquiries as to his whereabouts within Australia and, in my view, there can be no criticism of the steps they took in that regard. 9 Robison DCJ was concerned about the fact that the police had not made inquiries as to Mr Gujral's whereabouts in India. This was relevant, as Mr Gujral left Australia on 28 August 2001 aboard a Malaysian Airlines flight for that country. 10 On behalf of the respondents, it was forcefully submitted that the police had been neglectful in only commencing their inquiries on 26 July 2003. The trial commenced on 5 August 2003 and, as I have pointed out, Mr Gujral had left Australia nearly two years before that date. 11 I accept the submission that the police should have commenced making their inquiries at a far earlier date, particularly having regard to the fact that the case was listed for trial last year. However, any inquiries made by the police at a time earlier than August 2001, as regards Mr Gujral's whereabouts in Australia, would have proved to be fruitless. 12 The information as to Mr Gujral's whereabouts in India is non-existent. It is not even known in which city he resides. It would have been a lengthy and expensive task for the police to make appropriate inquiries as to his whereabouts in that country. In my view it was not incumbent on the police to make inquiries in India. I do not mean to suggest, in expressing this view, that the police would never be required to attempt to ascertain the whereabouts of a witness, once it was learned that that witness was in another country. In the particular circumstances of this case, however, where nothing was known as to the individual's address or business or family, and where the country concerned was as large and as populous as India, I think it is understandable that the police did nothing more. 13 Thus, in my opinion, the delay on the part of the police in making inquiries does not constitute a failure to take reasonable steps within the meaning of cl 4(1) of Part 2 of the Dictionary to the Evidence Act. 14 Robison DCJ raised another consideration, namely, the purported lack of evidence as to the ability of Mr Gujral to speak and understand the English language. This, it seems to me, is a consideration relevant to s 65(2)(b) of the Evidence Act. 15 The only grounds on which it was suggested that Mr Gujral may not be fully competent in the English language is that he has an Indian name, travels on an Indian passport and left Australia for India. In this day and age I do not think that these matters are sufficient in themselves to give rise to any relevant doubt as to a person's ability to speak English. Of course, it would be open to a person seeking to oppose the admission of a statement under s 65 of the Evidence Act to adduce some evidence casting doubt on a proposed witness's grasp of English. Once there was some evidence to this effect, the burden would then be on the party seeking to tender the statement to prove that the maker properly understood and spoke English. There is no such evidence in this case. The only matters raised are those to which I have referred. Moreover, there is nothing in the content of the statement itself which suggests that the words are not the very words spoken by Mr Gujral himself. In his statement, Mr Gujral repeats words used by the persons robbing him. These persons were speaking English. There was no suggestion on his part that he could not understand what they were saying. 16 In my view, Robison DCJ's reliance on some lack of ability on Mr Gujral's part to speak and understand English was misplaced. 17 In the written submissions put on behalf of the respondents, reference was made to the prejudice the respondents would sustain were the statement to be admitted. Particular attention was drawn to the assertion in Mr Gujral's statement that he saw a car with a registration number "similar to AJ-12A". 18 Another charge faced by the respondents involves the theft of a motor vehicle registered AJP-13A, which took place a few days before the stealing from Mr Gujral. I accept that Mr Gujral's statement about the registration number is a matter of considerable significance to the Crown case on that count. Nevertheless, I do not consider that that fact constitutes relevant prejudice for the purpose of determining whether the statement should be admitted. 19 In all the circumstances, I consider that Robison DCJ erred in his discretion in refusing the admission of the statement. I propose that an order be made that the order made by his Honour, ruling that the statement of Vikram Gujral dated 13 May 2001 was not admissible in evidence, be vacated. 20 GROVE J: I agree. 21 DOWD J: I also agree. 22 IPP JA: The order of the Court will be as proposed by me. ********** Last Modified: 09/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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