R v Ali ALKAN [2011] NSWDC 107

District Court New South Wales

Medium Neutral Citation: R v Ali ALKAN [2011] NSWDC 107 Decision date: 21 July 2011 Before: Cogswell SC DCJ Decision: Hearsay rule applies to one piece of evidence. Catchwords: CRIMINAL LAW - admissibility of evidence of deceased complainant - tender made pursuant to s 65(2) Evidence Act 1995 - complainant made complaint to police of being bashed - complaint made the day following the alleged assault - made statement to police 4 days later - died some months later - evidence that complainant was a drug addict and that his death was likely to have been a drug overdose - complainant made unrelated allegation about being assaulted but charges withdrawn because of his unreliability - difference between fabrication and unreliability Legislation Cited: Evidence Act 1995 s 65(2) Cases Cited: Harris v The Queen (2005 158 A Crim R 454 Regina v Gee [2000] NSWCCA 198 Regina v Williams (2000) 119 A Crim R 49 Category: Separate question Parties: Regina Ali Alkan Representation: Mr E Balodis for the Director of Public Prosecutions Mr M Pickin for Mr Alkan File Number(s): 2010/396468

Judgment 1. The Director of Public Prosecution charges Ali Alkan that he bashed and robbed a man named Penjman Joneidi on 10 May 2010. The evidence which forms the basis for that charge comes substantially from four sources. One is a triple-0 call made by Mr Joneidi the day after the alleged assault. The second is an account given by Mr Joneidi to police who responded to that triple-0 call some hours later. The third is a statement made by Mr Joneidi to the police made some four days later on 14 May 2010. The fourth is a statement made some months later on 4 November 2010 by Mr Joneidi - after he had been present at a process of identification - to the effect that Ali Alkan was the perpetrator of the bashing. 2. Normally of course the prosecution would call Penjman Joneidi as its principal witness and expect that Mr Joneidi would give an account of what he claimed happened which would be consistent with the four sources which I have referred to. But in this case Mr Joneidi has died. He died earlier this year at some stage during the first half of January. 3. The Director of Public Prosecutions nevertheless pursues the prosecution of Ali Alkan by tendering the four sources of information from Penjman Joneidi, each of which contains certain assertions. The tender is made under the Evidence Act 1995, specifically s 65(2). 4. Mr E Balodis, counsel who appears as Crown Prosecutor, argues that each of those pieces of information is admissible under one or other provision of s 65(2) of the Evidence Act . Mr M Pickin of counsel who appears for Mr Alkan objects to the tender arguing that none of them is admissible under s 65(2). 5. I admitted into evidence on the voir dire the four sources of information as well as some other material. It is common ground that Mr Joneidi is not available to give evidence because he is dead. That means that s 65 is engaged because of subs (1). 6. The relevant parts of s 65 which Mr Balodis relies upon are these - "s 65(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: ... (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) was made in circumstances that made it highly probable that the representation is reliable ." 7. Mr Balodis argues that the triple-0 call and the assertions made by Mr Joneidi to the police, both of which occurred the day after he claimed he was assaulted by Mr Alkan, are admissible under s 65(2)(b) and that the later two statements are admissible under cl (c). 8. I have been assisted by both counsel significantly in references to the various authorities which discuss this provision of the Evidence Act . 9. I should make some preliminary observations about the statutory provisions. I begin with s 65(2)(b). As Mr Studdert J said in Harris v The Queen (2005) 158 A Crim R 454 at 461 ([32]), the provision " imposes time restraints on the admissibility of evidence. Those restraints are expressed alternatively. The representation under consideration is to be made when the asserted fact occurred, or it is to be made 'shortly after' that occurred ." 10. In addition, in order to be admissible under cl (b), the representation is to be made "in circumstances that make it unlikely that the representation is a fabrication ". I am satisfied that fabrication essentially means made up or concocted. 11. There is a contrast between cl (b) and cl (c), in that in order to be admissible under cl (c) the representation must have been made in circumstances " that make it highly probable that the representation is reliable ". There is, argues Mr Balodis, an important distinction between cl (b) and cl (c). A focus of cl (b) is fabrication. The focus of cl (c) is reliability. That becomes important for the development of his argument. 12. There has been admitted into evidence material that indicates the following. It is likely that Mr Joneidi was a drug addict. Mr Joneidi's death is likely to have been brought about by an overdose. A police officer and Mr Joneidi's GP are both of that opinion. Mr Joneidi had been treated for depression, and indeed had been prescribed medication for that depression. 13. Some months after these claimed events Mr Joneidi made an unrelated allegation about being assaulted on another occasion in his home. There is evidence that two accused were charged in respect of that claim. However the evidence includes that the charges were " ultimately withdrawn due to the unreliability of the deceased who kept changing his version of events ". 14. The evidence admitted on the voir dire also indicates that Mr Joneidi asserted that he was assaulted by Mr Alkan around about 10 or 10.30 at night on 10 May 2010. He said that Mr Alkan came to his unit to borrow some money. Mr Joneidi said he did not have enough money to lend him. At that stage he said Mr Alkan picked up a dumbbell and dropped it on his foot and then started to punch him. He tried to cover his head. He started bleeding. He described himself as " very dazed and confused ". He did not remember how Mr Alkan left, " but I remember the front door closing ". Mr Joneidi went on to say that he " lost consciousness after that and didn't wake up until about 11am the next day ". 15. It was the next day, 11 May 2010, that he made the triple-0 call. That was not made until after 4.30pm on that day so, as Mr Pickin points out, there is a delay of some eighteen hours between the claimed assault by his client and the report to police emergency. 16. Police came to visit him later on that evening of the 11th, which was about twenty-four hours or more after the time of the claimed assault. 17. As I said, four days after the claimed assault he made his formal statement to the police and later that year he purported to select Mr Alkan's photograph from an array as representing the person who had assaulted him. 18. Mr Pickin argues that in considering the admissibility under s 65(2) I need to take into account evidence about the fact that Mr Joneidi was a drug user and had mental health problems. I need to take into account his own version that he was confused and dazed after the claimed assault. I need to take into account that the delay is largely unexplained. Mr Joneidi said that he was unconscious for a significant amount of time overnight which Mr Pickin argues is for a greater period of time than one would expect from the extent of the injuries. In addition there is a further delay between the time he claims to have regained consciousness and when he made the phone call. There is also the evidence about his later complaint being regarded as unreliable so far as the police were concerned. 19. Evidence about Mr Joneidi's phone usage and Mr Alkan's phone usage, has been produced by the police. Mr Joneidi does not acknowledge calls which had been made the day before the claimed events, nor does there appear amongst the records a call that one might expect to find there. 20. There are inconsistencies within accounts, for example the triple-0 call refers to " he " and to " they ", and there are inconsistencies between earlier accounts and later accounts. 21. Mr Pickin reminds me of the Full Court of the Federal Court of Australia's description of s 65(2)(c) as containing " onerous requirements ", which appears at [55] of the decision of that court in Regina v Williams (2000) 119 A Crim R 49 at 504. 22. Mr Balodis, as I said, highlights the distinction between fabrication and reliability. He argues that the earlier statements are unlikely to be fabricated because the assertions made in the phone call and to the police are consistent with observations made by the police when they arrived. 23. There is evidence that Mr Joneidi did not appear to be drug or alcohol affected when the police saw him on the night of 11 May. There is evidence of his attendance at hospital after he saw the police on 11 May and a consistent account of being assaulted. There are also observations of injuries which are consistent with his account. 24. Mr Balodis emphasises the difference between cl (b) and (c), one focussing on fabrication and the other focussing on reliability. He argues that the earlier statements were made shortly after the facts which they assert. The accounts were made in what has been described in various authorities, including Harris v The Queen , as under the " proximate pressure " of the events which they describe. He argues that the evidence about depression should not derogate from his reliability, nor suggest fabrication. 25. I have seen the evidence of the photographic array and I conclude that Mr Joneidi did not appear to be drug or alcohol affected. The only issue was a heavy accent. Mr Joneidi was not born in Australia. 26. I regard the difference between the emphasis of the two provisions as important. First I should say however that I am satisfied that the descriptions given to the police emergency number, and to the police when they called, were made " shortly after " the asserted facts occurred. As the authorities have indicated the section obviously distinguishes between a contemporaneous account, which would be covered by the word " when", and a later account covered by the expression " shortly after ". As one of the authorities said, the expression is not " immediately after " but " shortly after ". 27. The accounts given by Mr Joneidi in the triple-0 call and to the police were both made in his unit and, as Mr Balodis points out, in circumstances where he was surrounded by the results of what he claimed to have occurred. 28. I think it is unlikely that the representations made in the circumstances were a fabrication by Mr Joneidi. That is unlikely, in my opinion, because of the consistency between his accounts and the observations made by the police, as well as the consistency between his account and the hospital record. I regard the small inconsistencies in the triple-0 account concerning he or they as minor. 29. I am not looking, so far as that provision is concerned, at whether or not the account is reliable, but at whether it is unlikely to be a fabrication in the circumstances. I take into account the matters that I have just referred to, but also the absence of any motive which appears in the evidence for Mr Joneidi to fabricate the account which he gave. 30. In addition there was evidence that a cap was in his unit, which DNA testing indicated has DNA consistent with Mr Alkan's. There is evidence that he had been there on another occasion, but to my mind it supports the unlikelihood of Mr Joneidi fabricating his account. 31. However the account given by Mr Joneidi some days later on 14 May 2010 is a different matter. As Mr Balodis fairly points out, that is not caught by cl (b) and he must rely upon cl (c) of s 65(2). He needs to convince me that that statement was made in circumstances " that make it highly probable that the representation is reliable ". 32. This is where evidence of the reliability referred to by Mr Pickin is significant. The statement, although consistent with earlier statements, suffers from being made after a lengthy period of unconsciousness, and some days after the event, by a person who appears to be a drug addict, and with some mental health issues and who was admittedly confused and dazed. 33. I would not regard that statement as being made in circumstances that make it highly probable, given the emphasis which the Full Court of the Federal Court places on the onerous requirements of that provision. 34. Finally there is the statement made by Mr Joneidi selecting Mr Alkan's photograph from the array. Here it is important, Mr Balodis says, to identify the asserted fact. There is evidence that Mr Joneidi and Mr Alkan knew one another beforehand. Mr Balodis argued that what happened in the photograph array was that Mr Joneidi recognised Mr Alkan. That does appear to be consistent with what I saw when I viewed the videotape of the photographic array. Mr Balodis argues that it was not a process of identification but of recognition. The asserted fact was a representation about Mr Joneidi's current memory when he purported to recognise the photograph of Mr Alkan. 35. Mr Balodis drew my attention to the judgment of the Court of Criminal Appeal in Regina v Gee [2000] NSWCCA 198 and the distinction made at [10], in Grove J's judgment, between identification and recognition. I accept that argument. 36. The asserted fact, I find, was the representation by Mr Joneidi that the photograph he saw coincided at the time that he saw it with his memory of the person he already knew. In other words he recognised it. It was, as Mr Balodis described it, a compelling act of recognition and should be distinguished from Mr Joneidi's assertions of what had happened on the night. I accept that argument. 37. For the reasons which I have just given, I am of the opinion that the hearsay rule does not apply to the evidence contained in Exhibit VDA, tabs 6 and 7, of the telephone calls made on 11 May 2010 by Mr Joneidi to police emergency. Nor does the hearsay rule apply to the statement made by Mr Joneidi to the police dated 4 November 2010, which is also contained in exhibit VDA at tab 5. 38. I am of the opinion that the hearsay rule does apply to the statement made by Mr Joneidi dated 14 May 2010, which is the subject of tab 4 in VDA, and I would reject its tender unless it is pressed on some other basis. 39. I would admit the tender of the other three documents, including the audio recording and the video recording, unless there is some other objection.