New South Wales Court of Criminal Appeal CITATION : R v O'Connor [2003] NSWCCA 335 HEARING DATE(S) : 5 November 2003 JUDGMENT DATE : 5 November 2003 JUDGMENT OF : Barr J at 1; Greg James J at 21; Howie J at 22 DECISION : Appeal is dismissed. CATCHWORDS : Evidence - exculpatory out-of-court statement of absent co-offender - whether admissible LEGISLATION CITED : Evidence Act ss 65 (1), (2), (8), 135 CASES CITED : Gallagher v The Queen (1986) 160 CLR 392 PARTIES : Regina Linda O'Connor FILE NUMBER(S) : CCA 060298/03 COUNSEL : Applicant: I F Byrne Crown: D C Frearson SOLICITORS : Applicant: Alexanders Lawyers Crown: S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 00/11/0587 FILE NUMBER(S) : LOWER COURT Stewart ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 060298/03 Barr J Greg James J Howie J Wednesday, 5 November 2003 R v Linda O'CONNOR Judgment 1 BARR J: The appellant, Linda O'Connor, appeals against her conviction on a charge of robbery in company which followed a trial by jury in the District Court. 2 During the evening of 16 September 1999, Mr Thomas Banborough was at work in his liquor shop at Little Bay when a man and a woman entered. The man's head was covered with a balaclava and the woman's with a scarf. The man produced a knife, menaced Mr Banborough and made him hand over cash from the till. The woman tried to hit him with a broom handle she had brought with her. During the attack the man and woman spoke to one another and he recognised their voices. They were a couple he described as inseparable who had been coming to his shop once or twice a week for about four years to buy cigarettes or withdraw cash from a money machine. When they had robbed him the couple ran away and Mr Banborough chased them and threw a bottle. The man took off his balaclava and turned and faced Mr Banborough. He recognised the man. He knew that his name was Tarek. He never saw the woman's face but recognised her by three things, namely her body shape, her demeanour and her voice. He knew her as Linda. 3 Mr Banborough's daughter, Mrs Blackburn, came to the shop during the robbery. She recognised the appellant by her clothing and hair. She had been seeing her over the last three years. The woman had what Mrs Blackburn called a turban around her head but she could see her eyes and mouth. She recognised her voice because she had spoken to her before. Tarek had introduced them in 1996 or 1997. She had spoken to her because her daughter was interested in horse riding and the woman told her that she had a horse. They spoke about horses. She recognised the woman's posture. She used to see her at school almost every day because each of them had children going to the school. 4 The appellant did not give evidence at trial. Her case was that Mr Banborough and Mrs Blackburn were mistaken in identifying her as one of the robbers. 5 The man Tarek was Tarek Elie Makhoul. He and the appellant were charged with the robbery at about the same time but Makhoul left the country, avoiding trial. So the appellant was tried alone. 6 There are four grounds of appeal and since they all resort to the same subject matter it is convenient to deal with them together. They are as follows - (1) The learned trial Judge erred in disallowing cross-examination of a Crown witness on the issue of identification of the appellant and the appellant was unable to adduce relevant evidence and put that evidence before the jury and was thereby denied the opportunity of a not guilty verdict. (2) There is evidence on the issue of identification which is now available but which was not available to the appellant at the time of her trial and which could not be put before the jury and the appellant was thereby denied the opportunity of a not guilty verdict. (3) There is evidence on the issue of identification which now exists but did not exist at the time of the trial and which could not be put before the jury and that the appellant was thereby denied the opportunity of a not guilty verdict. (4) By reason of the above there has been a miscarriage of justice. 7 Detective Senior Constable Stirton gave evidence. He had arrested Makhoul and the appellant and had spoken to both of them. The intention of the Crown was to adduce from him evidence about what he and the appellant had said to one another. The defence knew he had had a conversation with Makhoul as well and wanted to adduce by cross-examination evidence of what Makhoul had said. The Crown objected to that evidence and the trial judge rejected it. This Court has not been furnished with a copy of Constable Stirton's statement but the relevant parts of it sufficiently appear from his Honour's judgment. What Makhoul told the officer was that he had been present in the shop and had committed a robbery. However, he had a piece of wood, not a knife. He added "and why is Linda here anyway, she had nothing to do with it". He went on to explain that it was not the appellant who had been with him on that day but another girl, who came from Marrickville. 8 Defence counsel drew the attention of the trial judge to s 65(1) and (2) of the Evidence Act. Where relevant those subsections are as follows - (1) 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. (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: … (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. 9 There was evidence that Makhoul was overseas and it seems to have been assumed on that account that he was not available to give evidence. It seems to me that there might have been doubt whether Makhoul was not available to give evidence but it is convenient to deal with the appeal as though the matter had been established. 10 Counsel made submissions about the timing and the circumstances of what Makhoul was reported as having said, about whether what he had said was against his interests and about whether it was likely to have been reliable. On 28 November 2000 his Honour gave a judgment, concluding that what Makhoul was reported to have said about the appellant and about his companion was highly probably a fabrication and unreliable. So the evidence was rejected. 11 The complaint made in this Court about his Honour's reasons for rejecting the evidence is that his Honour was wrong to apply the test under subs (2). Because the desired evidence was to be adduced by the appellant, the defendant, subs (8) applied and subs (2) did not. The subsection is in the following terms- (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. 12 If his Honour had had the assistance of counsel and had considered the matter in the light of subs (8) it would have been necessary to consider whether, notwithstanding that the evidence was prima facie admissible, it ought to have been excluded in the general discretion of the Court: see s 135. The Crown would no doubt have argued in those circumstances that Makhoul's statement that the appellant was not present was made by and about a partner of long standing and was likely to have been falsely made in order to protect the appellant. The Crown would also have argued that the evidence was unfairly prejudicial because it was unable to be tested. 13 In my opinion it may be unfairly prejudicial to the Crown for an accused person to adduce evidence of out-of-court statements of absent co-offenders exculpatory of the accused. Such persons may have a motive to lie. The probative value of such evidence is likely to be slight. The inability of counsel to test the evidence by cross-examining the maker of the statement may prejudice the Crown. Such prejudice may outweigh the probative value of the evidence. 14 Makhoul and the appellant were in a domestic relationship of some years' standing. Makhoul knew that Mr Banborough had seen his face and may be taken to have expected that he would identify him in due course in court if there was a trial. He and the appellant had a child of school age who would have to be looked after. If they were both found guilty they would probably both be sent to prison, leaving nobody to look after the child. Makhoul might have an interest in lying to the police to foster what he saw as his obligations to her. If the evidence had been admitted, of course, the Crown could have put arguments of this kind to the jury but it would have been seriously hampered by the inability to cross-examine Makhoul. Moreover, as I shall explain, subsequent events show that the evidence was less worthy of belief than might first have appeared. 15 This Court has been informed that Makhoul returned to Australia and was arrested. In due course he stood trial on the same charge. He gave evidence at that trial. A transcript of that evidence was put before this Court. The relevant portions of it are as follows- Transcript p89- Q. When you went back to the cellars on the second occasion were you by yourself or with anyone?" A. No I was with someone. Q. And who were you with? A. A girl named Nicky actually. Q. How did you come to be with her? A. I bumped into her in the Malabar area. Q. And when did you do that? A. On the day." 16 Transcript pp 129-131- Q. When you returned on this occasion there's someone with you, that's right isn't it? A. Yes. Q. And this was a female person? A. That's correct. Q. And who do you say that person was? A. A girl I know as Nicky, yeah. Q. How long had you known her as of 16 September? A. I'd only met her on one occasion previous to this occasion. Q. How long before this occasion was that? A. A couple of days. Q. Whereabouts had you met her? A. Beg your pardon. Q. Whereabouts had you met her? A. Floating around Bilga Crescent at Malabar. Q. So just wandering around the street? A. Yeah. Q. You just bumped into her? A. Yeah. Q. Introduced yourself? A. Yeah. Q. And then you saw her again on this day? A. Yeah. Q. Whereabouts was she when you saw her on this day? A. Not far from the flats in Namatjira Place. Q. What, just floating around the street again? A. In the car park. Q. I see and started to talk to her did you? A. Yeah. Q. What time of the day was it when you came across this Nicky person in the car park. A. In between the time I'd gone to the bottle shop the first time and the second time. Q. So after you'd been to the bottle shop on the first occasion you went home did you? A. Yeah. Q. Waited around home for a while? A. Yeah. Q. Was your girlfriend at the time Linda O'Connor with you when you went back to your flat, was she at the flat? A. No. Q. Where was she? A. I don't know where she was at the time. Q. She'd been at your mother's place hadn't she earlier in the afternoon? A. She was with me earlier in the afternoon when I went and asked my mother for some money yes. Q. After you left your mother's place where did you go? A. We had an argument at my mother's place. Q. So where did you go? A. Where did I go. Q. Mm, you? A. I went to Namatjira Place. Q. Where did she go? A. I don't know where she went. Q. So you then go down and ask for the money, you return to the flat at Namatjira Place? A. That's correct. Q. Miss O'Connor's not there? A. No. Q. You leave and you run into this woman Nicki? A. Yes. Q. How is it that she happens to accompany you down on this expedition to get the money from Mr Bamborough? A. Well she asked me what I was doing and I told her what I was doing and she tagged along. Q. Did you have any objection to that or were you happy enough for her to come along? A. Well I wasn't doing anything so it didn't bother me. Q. This was a woman that you barely knew? A. Yeah it could've been anyone. Q. Had only exchanged a few words with in the street on one previous occasion, is that right? A. Yes. Q. Almost a total stranger? A. Yes. Q. In any event she then proceeds down with you when you go to the bottle shop? A. Right." Transcript p137- "Q. So you've walked in, at this stage you don't know where this woman Nicky is, is that so? A. I didn't realise whether she'd walked into the shop or whether she was standing outside the shop. Q. Because you thought that she was staying outside, is that right? A. Well I didn't think what she was I didn't even really pay attention to her." ... "Q. What I suggest to you is that the woman who was with you was not this woman Nicky at all, but was your girlfriend Linda O'Connor? A. That's not correct." Transcript p147- "Q. In relation to this woman Nicky who was with you on the night, did you make any attempts to try and locate her? A. I don't know where to even start looking, no. Q. You hadn't seen her around the area ever again? A. No. Q. Just on this occasion that you'd met her on the street and on this second occasion when she was present when the incident occurred in the liquor shop? A. Right. Q. Is that correct? A. Yeah. Q. They're the only two times you've ever seen her? A. That's correct. Q. And you've made no attempt to try and locate her in the meantime? A. No. Q. You see I'd suggest to you that what in fact happened was that you went there on that night with your girlfriend Linda O'Connor? A. No." 17 At that trial the jury were unable to agree. The Court has been informed that Makhoul was tried a second time and found guilty. No affidavit of Makhoul has been put before this Court and no opportunity has been afforded to the Court to assess the reliability of his evidence for itself. 18 Three main considerations guide a court of criminal appeal in deciding whether a miscarriage of justice has occurred because of evidence that has become available that was not led at the trial. The first of these deals with the question whether the evidence could with reasonable diligence have been adduced at the trial and is of no consequence here. The other two are whether the evidence is apparently credible and whether if believed it might reasonably have led the jury to return a different verdict. See Gallagher v The Queen (1986) 160 CLR 392 per Gibbs CJ at 395-396. 19 I will put aside for the moment the question of whether the evidence would be available if this appeal were to succeed and a new trial were ordered. In my opinion the proposed evidence lacks credibility. I find preposterous an account that a young man who for four years has been going into a shop twice a week with his de facto wife should on the occasion described have no idea of the whereabouts of his wife but happen to walk into the shop to rob the owner in the unexpected company of a woman whose name and address he does not know and whom he has just met in the street. In my opinion no reasonable jury could entertain it as possibly true. 20 As I have observed, the appellant has not made Makhoul available for cross-examination. It seems to me that the second and third grounds of appeal must also fail because it is not clear that the proposed evidence would be available if there were a new trial. In my opinion no miscarriage of justice resulted from the rejection of the evidence at the trial. I would dismiss the appeal. 21 GREG JAMES J: I agree. 22 HOWIE J: I also agree. 23 BARR J: The order of the Court is that the appeal is dismissed. ********** Last Modified: 12/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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. 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