R v Li [2017] NSWDC 144

District Court New South Wales

Medium Neutral Citation: R v Li [2017] NSWDC 144 Hearing dates: 8 May 2017 Date of orders: 08 May 2017 Decision date: 08 May 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Witness 1: The witness is not relevantly unavailable because reasonable enquiries have not been made by the prosecuting authority. Witness 2: The witness is unavailable, but limited representations admissible. Catchwords: Criminal - Unavailability of witnesses, s 65 Evidence Act, Dictionary. Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Conway v R [2000] 98 FCR 204 Harris v R [2005] NSWCCA 432 R v Ambrosoli [2002] 55 NSWLR 603 R v Kazzi [2013] NSWCCA 241 R v ZL (2010) 208 A Crim R 325 Sio v R [2016] HCA 32 Youkhana v R [2013] NSWCCA 85 Category: Procedural and other rulings Parties: Regina Run Li - Accused Representation: Counsel: Ms F Gray – Director of Public Prosecutions Mr Pararjasingham - Accused

Solicitors: Director of Public Prosecutions The Law Practice - Accused File Number(s): 2014/00104660

Judgment 1. HIS HONOUR: The accused Run Li is to be arraigned on three charges, count 2 expressed in the alternative to count 1, in respect of events that occurred on or about 31 March 2014. I have already given two judgments, one in relation to an uncontested matter concerning s 293 Criminal Procedure Act 1986 and another in relation to an application which I refused for a trial by judge, pursuant to s 132/132A of the same Act. 2. The allegations are of sexual character, particularly, as I understand the Crown case, that the accused on or about 1 March 2014 had sexual intercourse without the consent of the complainant, knowing she was not consenting, in circumstances where the complainant has no memory of relevant events to be explained in the Crown case by evidence that she was affected by what I could describe as "prescribed drugs" as opposed to "prohibited drugs". 3. The learned Crown Prosecutor, on Wednesday when the matter started before me, foreshadowed there would be other legal issues to be resolved. On Thursday 4 May I was provided by both the Crown and the defence with detailed written submissions in relation to an application the Crown had made by notice of a desire to lead evidence pursuant to s 65 Evidence Act 1995. The notice served on the defence was in the context of what the High Court has discussed in the decision of Sio v R [2016] HCA 32, particularly at [61], hopelessly inadequate. However, in fairness, the Crown's helpful written submissions in relation to the multitude of issues that arise in relation to the notice served by the Crown, contained at [57] and [58] of those submissions, have what I would regard as reasonably detailed, although in some respects not wholly adequate, particulars of the particular representations that are sought to be adduced. 4. The Crown seeks to rely upon the representations of the two persons in question, Ye Zhang, who as I understand it is a woman, and Rong Jun Li, also known as "Kevin", on the basis that those persons who provided statements to investigating police are relevantly "unavailable". 5. Ms Zhang provided a statement to investigating police on 5 April 2014 and then again on 7 May 2015. The man who I will hereinafter refer to as "Kevin", because he bears the same family name as the accused, gave a statement to police on 8 May 2014. The Crown, in relation to both witnesses, submits that the admissibility of the various representations that it would seek to adduce from the witnesses are admissible pursuant to s 65(2)(b) and/or (c) of that section. 6. With regard to the issues that were raised on behalf of the accused and Crown in written submissions and oral submissions, there are primarily two aspects, or provisions, in the Evidence Act and/or the Dictionary of the Act that require consideration. I will deal firstly with the issue of 'unavailability' of the relevant people. 7. In Pt 2 of the Dictionary of the Act, cl 4, is a provision in relation to the unavailability of persons. "For the purposes of the Act a person is taken not to be available to give evidence about a fact if (relevantly) all reasonable steps have been taken by the parties seeking to prove the person who is not available to find the person or secure his attendance but without success or all reasonable steps have been taken by the party seeking to prove the person is not available to compel the person to given evidence but without success." 1. It seems to me, based upon the evidence I have available to me, that in relation to the person Zhang, the relevant provision defining 'unavailability' in her case is cl 4(1)(f) having regard to the evidence available to the Court. It seems to me that the relevant provision relating to the witness "Kevin" is that provided at cl 4(1)(g). 2. In relation to the situation concerning Ms Zhang, I have indicated that I am not satisfied that she is relevantly "unavailable". In relation to her, I had a body of evidence, some very late in the piece, at the heel of the hunt so to speak, that frankly should have been available to the Court in support of the "application" or the "notice" to adduce evidence of the representations that that person made. The evidence produced to the Court satisfies me that up until August of 2015 the officer in charge had been in contact with her, the last email contact from her however being on 24 August 2015. 3. In respect of that person as I have earlier indicated she gave a statement some five or perhaps six days after the relevant events giving rise to the charges brought against the accused and she gave a further statement on 7 May 2015. I note in relation to her statements previously given to the police on the dates that I have indicated that she was apparently cooperative with the authorities and responded to requests made of her to return, as I have indicated, to make the second statement on 7 May 2015. 4. However, for reasons best known to others, the proceedings against this accused, who has been in custody as I understand it since his arrest on trying to depart Australia on 7 April 2014, no committal was conducted in relation to this matter until 22 July 2016. That is a period of over two years after the initial charging. As I have said three or four times, that situation is a complete disgrace and an embarrassment to everyone associated with the case who is responsible for that delay. Here I am presiding over a trial with a man who has been in custody for over three years. That situation is also a complete disgrace, notwithstanding the delay in the matter of being committed from the Local Court. 5. The officer in charge of the matter, who gave oral evidence before me and as I said belatedly produced some evidentiary material to the Court in respect of his attempts to locate Zhang and locate or communicate with "Kevin", produced in his evidence a number of emails that were forwarded to the respective people. At the moment I am dealing with the person Zhang. 6. It is apparent to me that subsequent upon her last communication to him using a particular email address on 24 August 2015 he, the officer-in-charge, has endeavoured to contact her using that same email address, as I noted, on 27 December 2015, 29 January 2016, 21 March 2016, 8 June 2016, 15 June 2016 to advise her of the date for committal, and most recently on 30 March 2017. I note also that there was an email from the solicitor - I assume instructing the Crown Prosecutor - to both witnesses on 27 April 2017. The trial date, I should point out, initially being listed for 1 May, the matter could not proceed before me until 3 May because I was involved in other work and obviously the parties were waiting for a judge to be available. 7. In relation to the email most recently sent to Ms Zhang, which she has not responded to, I note that it is addressed to the same email address to which Ms Zhang responded on 24 August 2015, but apparently has failed to respond to in respect of four or five previous emails. The evidence available to me reveals that Ms Zhang had returned to China in the middle of 2015, as I would understand the chronology of events. Her email to the officer-in-charge of 24 August 2015 was sent, it would seem, from China. But using the current email address then known to the officer-in-charge. 8. What is self evident from all the evidence available to me is, firstly, that the person Zhang has, from at least August of 2015, made it very clear that she does not wish to return to Australia to give evidence and, secondly, that she does not wish to give evidence because of some fear that she has of the accused. This is a claim also made, I hasten to say, by Kevin. Neither person provides any evidence whatsoever, even on a self-serving basis, for any purported fears of the accused, other than what I divine to be in part some embarrassment of having to come to Court and be in the same Court as him, or have him observe them give evidence in the manner that might be anticipated from their statements. I point out in relation to the issue of unavailability of course that, regrettably, the legislature has not seen fit to address the issue of the "recalcitrant" witness or potential witness as being a relevant matter to be taken into account in determining the issue of unavailability. 9. In any event, the facts of the matter are that the accused was committed for trial on 22 July 2016 in circumstances where attempts had been made, I assume by reason of some order of the learned Magistrate, to have the witnesses Kevin and Zhang attend upon the Court. It was self evident that they did not attend the Local Court. The accused was still committed for trial, and thereinafter, as I understand it, a week later according to the Court file the accused's trial was listed for 1 May 2017. That, on my rough calculation, is a period of slightly more than nine months after the matter had been committed to the District Court. 10. The first attempt made to contact Zhang (or Kevin for that matter), was the attempt made on 30 March 2017 in circumstances where the only contact detail that the officer-in-charge, or the Crown for that matter, had sought to inform themselves with was a contact detail which the relevant person had not responded to since some time in late 2015. In other words, an attempt was made to contact Ms Zhang through an email address that could not reliably or credibly, for my purposes, be regarded as a current email address at the time of the communication. 11. The evidence before me does not reveal any independent enquiries that have been made of the complainant or any other person who was known to Zhang, and there are a number of people as I understand it within that category known to the prosecution from what I understand of the Crown brief, to ascertain details as to the current email address or location of the person Zhang. 12. I appreciate of course the difficulties involved if the person chooses not to respond to the particular email address that has been chosen for the purposes of communicating to the potential witness, the desirability of the person attending to Court, the availability of financial resources to bring the witness to Australia for the purposes of giving evidence or providing details as to other means by which the witness may be able to give evidence in this Court, even though present in China. I appreciate of course, too, the fact that the person Zhang left the country before, perhaps, an opportunity when she was available in Australia was taken to obtain details of where she was travelling to in China where she lived and the like. 13. In relation to the matter I am mindful of the fact that the police officer had, on 17 April 2017, as I understand his evidence, put some information to INTERPOL in respect of which there has been no response. 14. The Crown relies primarily upon a decision of the Court of criminal appeal of R v Kazzi [2013] NSWCCA 241. Reference was made by both parties to a number of authorities referred to in summary in the learned text of Odgers SC which deal with other judgments of other courts relating to determining the issue of availability or unavailability on the particular facts of those particular cases. I do not need to cite them, but I have taken those various observations into account. 15. In relation to Kazzi, that witness was held to be 'unavailable'. However, in circumstances where the person in question who the learned trial judge had in error determined was unavailable, left Australia before the trial was to commence, that is, on 28 August 2001. The trial commenced on 5 August 2003 and the police commenced their enquiries on 26 July 2003. That was, in effect, closer in time to the date of the trial. 16. There is, it seems to me in that judgment, no evidence at the time that the matter was listed for trial or at the time that people turned their attention to the issue of that particular witness's availability, of knowledge of the fact that the person in question had in fact left the country. By the time the person had left the country the circumstances, as set out at [12], make it very clear that the whereabouts of the witness and the means of contacting him were "non existent". In that matter the Court held that the "delay" on the part of the police making inquiries did not constitute a failure to take reasonable steps within the meaning of cl 4 of Pt 2 of the Dictionary to which I have referred. 17. That situation can be distinguished from this situation insofar as it is not explained to the Court what other inquiries have been made. In fact, as I understand it, no other inquiries have been made. The Court cannot be satisfied that other inquiries may not have led to an identification of at least an up to date email address and a location for the witness to permit communication to provide the witness with an opportunity to travel to Australia, or else to provide evidence via audio visual link by such means as the law would permit in respect of the matters that are contained within the statement or statements made by the witness. 18. Thus, I am not satisfied, given the paucity of inquiries that are made in the context of what I have outlined to be the chronology of events, that relevantly all reasonable steps have been taken by the party seeking to prove the person is not available, to find the person or secure her attendance without success. 19. In relation to the issue of availability, I am mindful of the decision that has been particularly stressed by counsel for the accused, that is the Victorian decision of ZL (2010) 208 A Crim R 325. I draw no comfort in relation to ZL from the particular facts of the case. They are very different from the circumstance with which I am concerned here. But I do agree with the observations of then Nettle J of the Court of Appeal, now a Judge of the High Court, that where a witness is said to be "very important to the Crown case", as his Honour observed, "It is only reasonable to expect that very extensive inquiries and efforts would have been made to locate her and ensure that she is available for trial". 1. The observation he made on the facts of that case were that the inquiries made were "at best...superficial" and by and large "decidedly half-hearted". That is the view I take of the attempt to locate Ms Zhang, as I reflect also upon the subject of evidence before me last Thursday. Very much 'heel of the hunt', last minute inquiry or information, being provided to the Court. In fact, if my memory serves me correctly, and I do not have a transcript of what happened last Thursday, it was my suggestion that the evidence be produced to the Court, not the suggestion of the prosecution. 2. The situation in relation to 'Kevin', however, is somewhat different. I have outlined some of the background in relation to the issue of availability as far as he is concerned. In respect of him, whilst he has been most uncooperative, he, like Ms Zhang, has proffered excuses which I do not regard as credible or worthy of any particular value. Particularly bearing in mind he gives conflicting reasons for his refusal to return to Australia before the committal. First of all citing work commitments making it impossible for him to come to Australia and then proffering the lame excuse that he has some unidentified fear of the accused. 3. I point out in relation to that aspect of the matter, when I discussed it with the learned Crown, the Crown offered nothing even from the bar table as to why these fears should be realistic. Nothing to suggest the accused is a member of any organised crime organisation, is a person of criminal proclivities, other than those of course reflected in the Crown allegations against him, a person who has some association with some particular organisation, whether it be the Communist Party of China or some other organisation operating within China that might be able to create difficulties for Ms Zhang and Kevin. In fact the situation is so dire, so far as the knowledge of the whereabouts of the two people, that all we know is that they are in China, in circumstances where the prosecution cannot tell me whether they are from the same city as Mr Li, the accused, nor reveal circumstances that it is even possible or probable that those persons might come in contact with one another, or the family of the accused might come in contact with Kevin's family, as was suggested in one of the communications which I have observed. 4. Kevin forwarded an email to the solicitor for the Crown, dated Friday, 28 April 2017. The email from the Crown Prosecutor's instructing solicitor had been forwarded, as I understand it, on 27 April 2017. Thus Kevin's email has promptly replied to that from the prosecution. He was advised in the email from the Crown's solicitor that his evidence was "important in this matter". Offers were made for his accommodation and air travel to be paid for. He was also asked pointedly: "If you have concerns about your security or safety please let me know what they are. If you have had any contact or threats from anyone including the accused or his family please let me or the police know ASAP, we can make arrangements for you to have no contact with the accused or his family". 1. The response of 28 April 2017 from Kevin reads as follows: "As the email I sent to Detective Michael Tran last time my family did not support me to give evidence for the Run Li case. They concerned seriously about my safety if I give any evidence they are afraid of the revenge from Run Li or his family. As a result I am sorry to tell you that I will not give evidence by any ways including over the internet". 1. With the greatest of respect to that response, typed in English as I see it clearly understanding the effect of the email sent by the solicitor, that email does not address any of the matters identified by the learned solicitor for the Crown concerning any specific concerns Kevin has about his security or safety. In fact, the way it is expressed, it is not a concern held by him personally, it is a concern held by unidentified members of his family. 2. Be that as it may, in the context of the terms of cl 4(1)(f), I am satisfied that all reasonable steps have been taken by the party seeking to prove the person that is not available to compel the person to give evidence but without success. The forwarding of subpoenas and the like is of no moment in the circumstances where the person is overseas. In my view, it is quite clear the witness is not going to make himself available for reasons either real or spurious, but in circumstances where he is aware of the proceedings. I accept there is little that the New South Wales Police, the Crown or anybody else can do to bring him to Court. 3. That brings me back then to the terms of s 65 of the Act. I will deal with Kevin first, because those provisions in the context of the conclusions I have reached in relation to the other witness are more pertinent. 4. The first thing to be observed is that the statement made by Kevin, in my view, was clearly not made "shortly after" the asserted fact occurred, even though the Crown pressed that argument. With respect to the Crown, in my view, that cannot be reasonably argued on the facts of this case. It is pertinent that, in this context, I refer to Harris v R [2005] NSWCCA 432 and particularly the judgment of Studdert J, with whom the other judges Grove and Whealy JJ agreed. 5. His Honour discussed the operation of s 65(2)(b) and (c), but particularly the issue of what relevantly constitutes the concept of "shortly after". The first thing to be remembered as Studdert J makes clear ,as do the judgments to which he refers, the words "shortly after" appear immediately after the word "when". The actual provision, in relation to the relevant representation that may be admitted for hearsay purposes. is that the representation "was made when or shortly after the asserted fact occurred". 6. I appreciate the parties took me to a number of judgments that queried whether a few days was shortly after or not, as the case may be. There are varying results in different cases as the practice or the text written by Mr Odgers makes clear. As Studdert J pointed out, there was no attempt in the statute itself or in the cases to which the Court was taken, to define what is mean by "shortly after". It was noted that the use of the expression "shortly after" had been a significant departure from the position prior to the introduction of the Act, that is at Common Law. 7. In the decision that he cited with approval, Conway v R [2000] 98 FCR 204. Their Honours (that is Miles CJ, von Doussa and Weinberg JJ) said at [123], [133]: "The word 'when' (in the section) encompasses this notion of strict contemporaneity. The introduction of the expression 'shortly after' is however a significant departure from traditional doctrine. The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made 'when' or 'shortly after' that the asserted fact occurred, seems to be to ensure that the matters conveyed are either strictly contemporaneous or if narrative of a past event still fresh in the mind of the person recounting the narrative. The expression 'shortly after' makes it clear that there need not be anything like the strict contemporaneity required at Common Law to render the evidence admissible as res gestae". 1. Earlier in the decision of Mankotia, an unreported decision of Sperling J of 27 July 1998, again as I understand the majority, approved in Harris, Sperling J observed: "I think the predominant factor in the phrase 'shortly after' must be the actual time that has elapsed and whether that fits the ordinary usage of the expression 'shortly after' in the circumstances of the case. The judgment should however be influenced by the policy behind the provision, that is to put a brake on the evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to remain clear in the mind". 1. Reference is made then by Studdert J to the decision of Polkinghorne another decision of Court of Criminal Appeal of 1999 and the decision of Williams v R [2000] 119 A Crim R 490, particularly in the judgment of the Court at [47]-[48]. In that judgment, reference was made to the fact concerning the operation of the section, that it is principally a concern to exclude concocted evidence that informs the meaning of the phrase 'shortly after', citing with approval what had been said by Sperling J. 2. Their Honours went on to say, in respect of the expressions earlier made as to what the words "shortly after" meant: "The rationale for the exception of the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled, rather that the provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is the statements be made spontaneously during when or under the proximate pressure (shortly after) the occurrence of the asserted fact" (emphasis added). 1. Studdert J, for the New South Wales Court of Criminal Appeal in Harris, adopting that observation, then went on to say: "In referring to, 'proximate pressure', in the above passage, plainly their Honours had in mind again, the question of temporal restraint. In Williams, their Honours considered the lapse of five days took the representations, 'outside the likely temporal realm of statements that may consider to be reliable because made spontaneously during or under the proximal pressure of events.'" (Citing [49] of Williams) 1. That brings us back to the circumstances of the giving of the representations made by Kevin in the statement of 8 May 2014. There is no element whatsoever, given the timing of the statement in the context of the conduct of the investigation, of any "proximate pressure" of the occurrence of the asserted fact. The statement was made 36/37 days after relevant events, accepting that a number of representations are made about events over more than one day. It seems thus, in the circumstances where it is clear that Kevin is not favourably disposed to the accused, is clearly a person aligned with the complainant, who clearly has had many discussions about the matter with the person Zhang (and others), in whose presence a number of events or occurrences have arisen, that I could not conclude that the terms of sub para (b) have been satisfied. 2. With regard to sub para (c) in the case of his statement, initially on Thursday, I was inclined to the view that, given the matters that I have just adverted to, surrounding the circumstances in which he would have come forward to give his statement, that the representations themselves were unreliable. Thus not satisfying the terms of s 65(2)(c). 3. In examining the matter from the perspective of the representation sought to be relied upon from Ms Zhang, and looking at the material in a more detailed fashion since the parties were last before me, I have come to reconsider that aspect of the matter. I am mindful in this regard of the commentary that appears in the text, that the parties placed so much reliance upon, particularly the commentary made in respect of the consideration of what, "made in circumstances that", may mean. Also, the particular provision to which I have referred that requires satisfaction that a particular representation was, "made in circumstances that make it highly probable that the representation is reliable" (emphasis added). 4. In respect of the issue of, "in circumstances", the learned author, Odgers, notes authority that states that the Court may take into account events prior or subsequent to the representation being made, and other representations being made by the same person on other occasions, which has particular pertinence in relation to Zhang. Also, there is authority for the proposition that the circumstances in which representations were made, would include, "the factual setting" at the time that the particular representations are made. 5. Mr Odgers cites that authority from the Full Federal Court dealing with s.65(2)(b) of the Act, that the circumstances in which the representations were made, may include any other events which are relevant to that issue, an approach with which the Court of Criminal Appeal has agreed in the decision of Ambrosoli [2002] 55 NSWLR 603 and Youkhana v R [2013] NSWCCA 85, particularly at [51]. It is in these circumstances that there are aspects of the representations made by Kevin that, in my view, have hallmarks of reliability sufficient to satisfy the test required under s 65(2)(c), which I will make that clear to the parties shortly. Those matters relate to facts independently proved. Representations that could be flavoured by discussion with the complainant of other potential witnesses are not highly probable to be reliable. 6. With regard to the bases sought to adduce the evidence of Ms Zhang, pursuant to sub para (b) and sub para (c), if the Court had concluded that she was relevantly unavailable, there are many reasons to have considerable concern about her account, both with regard to the issues of "fabrication" as it is likely to be required to be considered under s 65(2), that is, in circumstances that make it unlikely that the representation is a "fabrication", or made in circumstances that make it, "highly probable that the representation is reliable." (s.65(2)(b)(c)) 7. Her statement of 7 May 2015 clearly is a statement that is not made, "shortly after the asserted fact". In the context of the reasoning in Harris, I have concluded that although some of the representations contained within the statement made on 5 April 2014 relate to events after 1 April and closer to the making of the statement of 5 April, likewise the representations are not "shortly after" the asserted fact occurred. That is, in the context of the decision of Harris, in my view, in all the circumstances, I am not satisfied that the statement has been made in the circumstances of, "proximate pressure, of the occurrence of the relevant asserted facts". 8. However, in respect of the issue of whether particular representations are highly probable to be reliable in her case, again there are matters about which she speaks which, in my view, are some matters of representation that have the hallmarks of reliability. If I had found that she was relevantly unavailable to give evidence, there were particular representations I would have permitted. 9. I do point out however again, given the matters that were specifically identified by learned counsel for the accused, I need not go through them in great detail, such as her relationship with the complainant, her intimate knowledge of the character of the allegations made by the complainant (albeit that the complainant has no memory of the sexual assault reflect an unreliability), I would not regard any claimed admission made by the accused as satisfying what would be required otherwise under sub para (b) or sub para (c), that is, being unlikely that the representation is a fabrication or highly probable that the representation is reliable, as those two expressions appear in those particular sub paragraphs. 10. Thus, I have concluded in the context of determining that the witness is not relevantly unavailable because reasonable enquiries have not been made by the prosecuting authority, there is no need to particularise those matters in her situation. In relation to Kevin, I will go through the matters that I am prepared to identify as representations that may be permitted to be given.