District Court New South Wales Medium Neutral Citation: R v PITT, Michael Alfred John [2017] NSWDC 24 Hearing dates: 27 January 2016 Date of orders: 27 January 2016 Decision date: 27 January 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Statement of unavailable witness to be admitted in redacted form Catchwords: CRIMINAL - Evidence - unavailable witness - witness unable to be contacted to give evidence via video-link - notice to rely solely on a written statement given by a witness - unfair prejudice Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: No cases sighted Category: Principal judgment Parties: Regina (Crown) Michael Alfred John Pitt (Defendant) Representation: Counsel: Ms Healy (Crown) Solicitor: Mr Jeffrey (Defendant) File Number(s): 2015/135196 judgment 1. HIS HONOUR: When this trial started only last Monday I was advised, probably before the indictment was presented, certainly before the Crown opened its case, that the complainant in count 2 on the indictment, Mr Dong was in China, and it was expected that he would give evidence via "Skype". I understood from Mr Jeffery, who appears for the accused, that at that preliminary stage he had no objection to the witness giving evidence by that means. 2. The Crown in fact suggested, when we were discussing the timing of the case, that the witness would be available on Thursday. I made it very clear that if the witness was required to give evidence on Wednesday, the witness should give evidence on Wednesday because, amongst other considerations independent of the matters arising in this trial, I am required to go to Wagga next Monday. 3. I have got three weeks of work, I have got six trials, many sentences, many appeals. I will be working from 9.00 to 6.00 most days. I have jury panels arriving on Monday, and I would be very anxious if it is humanly possibly and reasonable in the conduct of this case to travel to Wagga before Monday and not delay the various litigants who will be assembling at Wagga District Court on Monday morning. However, of course, the exigencies of justice may require me to delay my departure from Sydney if this trial is still proceeding. Be that as it may, it was not indicated to me that there was any reason why the witness Dong could not be available for connection to the Court via electronic means on Wednesday. I think the suggestion on Thursday only arose because the Crown thought the Crown case may go slower than it actually has. 4. The Crown has now advised the Court that in effect it believes Mr Dong is unavailable and has produced evidence from the officer in charge of the case indicating various inquiries made to ascertain the whereabouts of Mr Dong. It is clear from the evidence in Mr Sheehan's statement of 25 January 2016 that Mr Dong left Australia on 16 June 2015, and returned to China, and has not returned to Australia. It is also clear from the evidence that there is an email address for Mr Dong which in fact is in part inclusive of his name, Han Dong. 5. The statement indicates that as recently as 22 January 2015, Mr Dong was aware of the fact that the trial was proceeding on 25 January, and that he would, "try best to help". On 25 January 2016 an email was sent to arrange a video‑link with Mr Dong to provide his evidence to this Court, and the state of the evidence is that the email or emails that have been sent to him on Monday have not been opened by him, and there is no explanation for his failure to open the emails to facilitate the giving of evidence. 6. Thus, it has come to pass that the Crown has served upon the defence a Notice, dated today, purportedly pursuant to s 67 Evidence Act 1995 giving notice of its intention to rely upon the statement of Mr Dong as evidence in this case, pursuant to s 65 Evidence Act 1995. I have read the Notice and the attached statement of Mr Dong. I have read the statement of Detective Sheehan and the annexures thereto, and I have heard submissions by Mr Jeffery on behalf of his client in relation to the matter. 7. It seems to me to be the situation that there are two real issues for determination. Whether in fact "reasonable notice" has been given to the defence as to the unavailability of Mr Dong, which is undisputed, and the consequences of reading the statement, or parts of the statement, rather than having Mr Dong available for cross‑examination. Secondly whether, although the contents of the statement, if admissible, are relevant to the proceedings, the unfair prejudice of not being able to cross‑examine the complainant in relation to count 2 outweighs the probative value of the evidence. 8. Firstly, I accept as a general proposition that an inability to cross‑examine a witness is a relevant "unfair prejudice" for the purposes of determining s 137 or 135 of the Act. It is clear under s 137 in criminal proceedings that if the unfair prejudice outweighs the probative value of the evidence, the Court must exclude the evidence. In considering the issue of reasonable notice, I appreciate, of course, the defence have had very little notice, in a formal sense, of the intention to read the statement. 9. The defence have only known since Friday that Mr Dong was in fact overseas. Although there was an expectation up until this morning that Mr Dong would be available to be cross‑examined. In the context of the contents of his statement, it is the case the defence clearly have had access to that statement for some considerable period of time. 10. Although the notice given to the defence is very short indeed, in the circumstances of a matter where the Crown itself only became aware that Mr Dong has not opened his emails up until the present time, the Crown has had little notice that he would appear to be unavailable in accordance with cl 4 of the dictionary of the Evidence Act 1995. 11. In the circumstances of the matter, appreciating the difficulties for the defence, I conclude that "reasonable notice" has been given. Bearing in mind what I understand particularly to be the real issues in this case, the real issues in this case would appear to be, in the context of the accused denying that he was one of the two robbers of the convenience store, not whether Mr Dong was robbed or Mr Huang was robbed, but whether, in fact, the Crown case establishes beyond reasonable doubt the accused's presence. 12. In that regard, aspects of the description of the "robbers", would be perhaps a relevant matter but ultimately by regard to other evidence, probably not a matter of great moment. I am mindful of what was said in the context of the second issue that I have to consider that the defence if it had known that Mr Dong was not available might have cross‑examined Mr Huang differently. That may have been so, but as I understand it, there was ample opportunity for the defence, notwithstanding the lack of knowledge of Mr Dong's "unavailability", to challenge Mr Huang as to whether, in fact, he was robbed as he claimed. 13. The truth of the matter is the objective evidence, that is the CCTV footage and the still photographs, particularly those showing what occurred with the two robbers present at the counter, is highly probative of the fact that Mr Huang was robbed, and the CCTV footage is consistent in that context with Mr Dong being robbed as well. 14. So having concluded with some hesitation that reasonable notice has been given, I turn to the matter raised by Mr Jeffery about unfair prejudice. I accept, as I have earlier pointed out, the unfair prejudice of not being able to cross-examine the witness, but I need to assess the claim of unfair prejudice in its various form identified by Mr Jeffery in the context of the reality of the case. 15. It seems to me, with respect, that the major matter that might fairly be identified that is unfairly prejudicial to the accused, given the fact that he is an Aboriginal man and as he sits in the dock is clearly a man with brown skin, is the assertion by Mr Dong of a description of the person who robbed him as having dark skin on his forehead and "dark-coloured legs". The issue of the description of clothing, size and the like is of almost no moment given the availability of images from the closed-circuit television. 16. At the end of the day, with respect, if Mr Dong was completely wrong in his description of the clothing of the person who robbed him, it would not, it would seem to me, make any difference to the issue required to be considered by the jury as to whether, in fact, Mr Dong was robbed, in other words, whether a robbery occurred of Dong and Huang in the convenience store. 17. In all the circumstances of the matter, to address in part the unfair prejudice identified by Mr Jeffery in his submission, I would not permit in the reading of the statement of Mr Dong the description of the skin colour of the person he describes as "the first man", being the person that he said ran towards him and demanded his wallet. The other aspects of the description appear to me to be of little or no moment and certainly, bearing in mind he does not describe the assailant who "robbed him" as having orange-coloured or red shorts, adds nothing to the available evidence in the Crown case. 18. As a matter of formality, I will not permit the statement to be admitted into evidence as a statement. In my view, the statement should be marked for identification and I will read it to the jury, if that be convenient to the parties, excluding the description of the skin colour. The contents of the statement should not have their value "enhanced" by being in the hands of the jury throughout their deliberations. It should be a case of treating the contents of the statement as the jury are required to consider oral evidence and also there would need to be an editing of the document which would be self-evident to the jury which could cause prejudice to the accused. 19. I am thus of the view that s 65(2) of the Act is relevantly satisfied in the manner identified by the Crown. The relevant representations were: "(M)ade when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication." 1. I bear in mind the statement was made on 1 April. Mr Dong was spoken to by police who attended the convenience store, and I am prepared to accept, and I do not think it is disputed, that both descriptions and general accounts of being "robbed" were given by the witness to police who attended on that date. I bear in mind, of course, it would be open to the Crown, if I excluded the statement I would have thought, to lead evidence from the officer who attended the store of the representations that were made to him or any other police officer who recorded representations immediately after the relevant events on the basis that, as I said, we accept that the witness is unavailable. 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: 22 February 2017