Supreme Court New South Wales Medium Neutral Citation: R v Droudis (No. 12) [2016] NSWSC 1330 Hearing dates: 19 September 2016 Date of orders: 19 September 2016 Decision date: 19 September 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Admit into evidence MFIs 8 and 9. Catchwords: CRIMINAL LAW – Judge-alone murder trial - unavailable police witness - Crown tenders statement and Investigator's Note of unavailable police officer - whether requirements of s.65(2) Evidence Act 1995 are met - held requirement of s.65(2) are satisfied - evidence admitted Legislation Cited: Evidence Act 1995 Cases Cited: R v Droudis (No. 4) [2016] NSWSC 1150 R v Droudis (No. 5) [2016] NSWSC 1211 R v Droudis (No. 6) [2016] NSWSC 1263 Sio v The Queen [2016] HCA 32 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Amirah Droudis (Accused) Representation: Counsel: Mr M Tedeschi QC; Mr DT Scully (Crown) Mr MJ Ierace SC; Mr RJ Wilson (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2013/345405 Publication restriction: --- JUDGMENT 1. JOHNSON J: The Crown has tendered a statement dated 18 December 2013 of Sergeant Phillip Buchardt (MFI9), and an Eagle.i Investigator's Note said to have been created by Sergeant Buchardt on 22 May 2013 (MFI8). Objection has been taken on behalf of the Accused to the tender of these documents. 2. The statement of Sergeant Buchardt relates to an occasion on the evening of 21 April 2013 when he and Senior Constable Megan Cox (now Oxley) attended premises at Belmore, and spoke to John Aspros, the brother of the Accused. Both Senior Constable Oxley (T165ff) and John Aspros (T341ff) have given evidence in the trial of this event. 3. The Court has given several interlocutory judgments on issues concerning Mr Aspros and his evidence: R v Droudis (No. 4) [2016] NSWSC 1150; R v Droudis (No. 5) [2016] NSWSC 1211; R v Droudis (No. 6) [2016] NSWSC 1263. 4. Sergeant Buchardt is seriously ill and is not in a position to attend Court to give evidence (Exhibit AG). It is common ground that Sergeant Buchardt is "unavailable" for the purpose of s.65 Evidence Act 1995. 5. The Crown seeks to tender MFIs 8 and 9 to establish what Mr Aspros said to police on the evening of 21 April 2013 and, in particular, that part of Sergeant Buchardt's statement where he states that during this conversation, Mr Aspros was asked words to the effect, "How long is it since you've seen Anastasia?", and Mr Aspros replied to the effect, "The last time I saw her was last Friday, at the market". 6. The Crown seeks, under s.65(2), that the hearsay rule not apply to Sergeant Buchardt's account that Mr Aspros said this on 21 April 2013. 7. An issue arose as to whether the asserted fact contained in the tendered representation constituted first or second-hand hearsay. The Crown seeks to tender the evidence as truth of the fact that Mr Aspros said words to the effect, "The last time I saw her was last Friday, at the market". I accept that this tender involves first-hand hearsay. It concerns the personal knowledge of Sergeant Buchardt of an asserted fact. His knowledge is based upon what he saw and heard at the time when Mr Aspros spoke to him: s.62(1) and (2) Evidence Act 1995. 8. In Sio v The Queen [2016] HCA 32, the High Court of Australia said at [55]: "It is evident that ss.62 and 65(1) are concerned to relax the exclusionary effect of the hearsay rule in relation to an assertion of a fact by a person who had personal knowledge of that fact. These provisions proceed on the assumption that the asserted fact is relevant to the case of the party seeking to adduce evidence of the representation asserting the fact." 1. Their Honours emphasised in Sio v The Queen, at [56]-[57], that when the provision speaks of a "representation", it speaks of the particular representation that asserts a relevant fact sought to be proved. It was emphasised (at [57]) that identification is required of the particular representation to be adduced as evidence as proof of the fact. 2. The Crown submitted that the tender in this case satisfied the requirements of s.65(2)(b) or (c). It was submitted for the Accused that neither requirement was met in this case. 3. The subparagraphs of s.65(2) are expressed in the alternative. As to s.65(2)(b), I note that Sergeant Buchardt made a record of what was said by Mr Aspros in shorter form in the Eagle.i Investigator's Note of 22 May 2013 (MFI8). This was made about one month after the event. The circumstances in which that note was made make it, in my view, unlikely that the representation is a fabrication. It is appropriate to take into account, in this respect, the notebook entry of Senior Constable Oxley made on the evening of 21 April 2013 (part Exhibit AH). I am satisfied that the requirements of s.65(2)(b) have been met. 4. As to s.65(2)(c), I am satisfied as well that the representation was made in circumstances that make it highly probable that the representation is reliable. In this regard, I take into account as well the notebook entry of Senior Constable Oxley and her evidence on this aspect. 5. The effect of this ruling is that the statement and Investigator's Note of Sergeant Buchardt will be admitted. In particular, the hearsay rule will not apply (under s.65(2)) to the evidence of Sergeant Buchardt as to what Mr Aspros said to him about the last time he (Mr Aspros) saw the Accused. That evidence will be admitted as truth of the fact that Mr Aspros said words to that effect to Sergeant Buchardt on this occasion. 6. MFIs 8 and 9 will be admitted into evidence on this basis. ********** 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. Decision last updated: 07 November 2016