R v Yavuz (No. 4) [2018] NSWSC 1767

Supreme Court New South Wales

Medium Neutral Citation: R v Yavuz (No. 4) [2018] NSWSC 1767 Hearing dates: 14 November 2018 Date of orders: 21 November 2018 Decision date: 21 November 2018 Jurisdiction: Common Law - Criminal Before: Davies J Decision: Evidence contained in the triple-0 call is admissible Catchwords: EVIDENCE – hearsay – exceptions – first hand hearsay – criminal trial – murder – whether triple-0 call from murder scene is admissible – s 66 Evidence Act 1995 - maker of call giving evidence – whether triple-0 call should be excluded as prior consistent statement – call tendered as part of witness's evidence in chief – no issue of credibility – evidence relevant and within the hearsay exception Legislation Cited: Evidence Act 1995 (NSW) ss 55, 56, 66A, 108, 108A Cases Cited: Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Odisho v R [2018] NSWCCA 19 R v Castaneda (No 2) [2015] NSWSC 979 R v Yavuz (No. 1) [2017] NSWSC 1645 Texts Cited: Stephen Odgers, Uniform Evidence Law, 2016, 12th Ed, Law Book Co. Category: Procedural and other rulings Parties: Crown John Can Yavuz (Accused) Representation: Counsel: N Williams (Crown) S Littlemore QC (Accused)

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Matouk Joyner Lawyers (Accused) File Number(s): 2015/335208

Judgment 1. The background to this matter is set out in R v Yavuz (No. 1) [2017] NSWSC 1645. 2. At the retrial in this matter the Crown sought to tender, during the evidence of Youness Elmrabt, the recording and transcript of the triple-0 call which Mr Elmrabt made immediately after the stabbing of the deceased occurred. Mr Littlemore QC objected to the tender on the basis that it was a prior consistent statement, that s 108(3)(b) of the Evidence Act 1995 (NSW) dealt with prior consistent statements, and that what is provided in s 108(3)(b) does not make it admissible. 3. The Crown relied on s 66A for the admissibility of the material, but in the alternative on s 66. 4. I ruled that the triple-0 call was admissible. These are my reasons for so doing. 5. The Evidence Act relevantly provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. … 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. … 66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned, and (b) the age and health of the person, and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note. Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons. 66A Exception: contemporaneous statements about a person's health etc The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind. … 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) (Repealed) (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement. 1. Mr Littlemore submitted that the triple-0 call was a prior consistent statement. He submitted that s 66 was not a licence to admit prior consistent statements. It was not a provision for credit bolstering by the admission of such statements. Mr Littlemore submitted that the witness had given his evidence of what he observed. The triple-0 call would only become admissible if, effectively, he were under attack concerning his evidence, particularly if it was asserted that the evidence was recent invention. 2. He submitted that s 66(2) assumes that evidence of what is contained in the representation has not been given, and that the representation itself is the only source of the evidence. Otherwise, giving evidence of the representation would be merely giving evidence of a prior consistent statement. If the evidence has been given, then evidence of the representation is just credit bolstering. He pointed to s 108(3)(b) of the Evidence Act as showing the circumstances where a prior consistent statement is admissible. 3. In relation to s 66A, Mr Littlemore submitted that the word "knowledge", on which the Crown relied, must be read ejustem generis with the other words in the section so that when knowledge is referred to it is not knowledge of facts in issue but in relation to things such as the witness's own health, feelings, sensations etc. 4. There can be no doubt that, in the first instance, the evidence contained in the triple-0 call is relevant inasmuch as it could rationally affect the assessment of the probability of the existence of the fact in issue. The facts in issue are what Mr Elmrabt observed and heard at and around the time of the stabbing. What Mr Elmrabt said in the triple-0 call is hearsay because it is evidence of a previous representation made by a person to prove the existence of those facts: s 59(1). However, the exception in s 66 means that the hearsay rule does not apply to evidence of the representation that is given by the person who made the representation if they are available to give evidence, and if, when the representation was made, the occurrence of the asserted facts was fresh in the memory of that person. 5. Section 108 is concerned with the credibility rule and re-establishing credibility. There is no such issue here. At the time the Crown sought to tender the triple-0 call Mr Elmrabt's credit was not in issue because he had not then been cross-examined. Section 108(3) does not impliedly make prior consistent statements inadmissible. The sub-section is a provision which allows admission of evidence of a prior consistent statement which would otherwise be excluded by the credibility rule. This was emphasised by the High Court in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57, where the joint judgment said at [35]: The criterion of operation of s 102 is the relevance of the evidence, not any question of its admissibility. The appellant's contention, that evidence not admissible on any basis other than credibility is excluded by the credibility rule, can be seen to amount to a proposition that evidence which is not admissible, is not admissible. That is not an informative proposition. Further, it is a proposition which, in effect, confuses or conflates questions of relevance and admissibility. The proposition that evidence is not admissible on any basis other than credibility, carries with it at least an implicit assumption about relevance when it speaks of the basis of admissibility. Rather than adopt this rewritten version of the statutory rule, effect should be given to s 102 according to its terms. Thus attention must be directed to how the evidence in question is relevant. Is it relevant only to a witness's credibility? (emphasis in original) 1. The matter was picked up by the Court of Criminal Appeal in Odisho v R [2018] NSWCCA 19 at [157] as follows: In Adam v The Queen, the High Court rejected the proposition that s 102 (the credibility rule) should not be read literally. The same must apply to s 38. Accordingly, and in conformity of the words of the statute, the question is: "Is it [the evidence in question] relevant only to a witness's credibility?" Adam was a case where the witness in question made a recorded interview implicating the accused but resiled from that evidence when called as a witness. A similar situation arose in the appellant's case. It is clear enough, particularly in view of sections 38(1), 60 and 66 of the Evidence Act 1995 (NSW), that questioning the witness in relation to such a prior statement is not a matter "relevant only to the witness's credibility."… (citations omitted) 1. The argument is also similar to what was raised IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [71], albeit that was a case concerned with complaint evidence. The joint judgment of French CJ, Kiefel, Bell and Keane JJ said at [71]-[72]: [71] The appellant submitted that an assessment of the probative value of the evidence should have been restricted to its effect upon the complainant's credibility, which is to say by treating it as relevant to context, rather than as evidence that the offences took place. The appellant's submission is reminiscent of the view of the common law that, because of the hearsay rule, evidence of recent complaint could only be used for a purpose relating to the credibility of the complainant. It was pointed out in Papakosmas v The Queen that the Evidence Act has changed that. [72] The Australian Law Reform Commission recommended that complaint evidence be received as evidence of the facts in issue in certain circumstances. The concern of the common law with respect to hearsay evidence of this kind was its potential to be unreliable. Section 65 addresses this by requiring a judge to consider the reliability of evidence, when the maker is not called. When the maker is called, as in this case, s 66 requires that the act complained of be fresh in the memory of the maker of the statement. 1. In that case the evidence had been admitted under the exception in s 66 (see at [6]), and the High Court upheld that decision although it quashed the conviction on another ground. 2. Mr Littlemore submitted that if the person had given the evidence which is contained in the earlier representation, the earlier representation has no more status than a prior consistent statement, and there must be some restriction on the admissibility of prior consistent statements. 3. The difficulty for that argument is that, unless a prior consistent statement is excluded by reason of the credibility rule in s 108A or the hearsay rule, it may be, and here is, relevant evidence under s 55 and therefore admissible under s 56. 4. I agree with the learned author of Stephen Odgers, Uniform Evidence Law, 2018, 13th Ed, Law Book Co. at paragraph [EA.101A.150] where he says: [T]he evidence is not "credibility evidence", as defined, if: (a) The evidence is relevant to prove the existence of a fact that it cannot reasonably be supposed that the person intended to assert by the representation (that is, it is not caught by the hearsay rule); or (b) The hearsay rule established by s 59 does not apply to the evidence by reason of the operation of one of the other provisions of Part 3.2 (except s 60). The reason that the evidence is not "credibility evidence" as defined if the hearsay rule does not apply to the evidence by reason of the operation of one of the exceptions in Part 3.2 is that, in such a situation, s 59 no longer operates to cause the evidence to be not admissible for that purpose/use. (emphasis in original) 1. Mr Littlemore agreed that if the evidence of the representations in the triple-0 call had been given first before Mr Elmrabt gave his evidence of what happened on the day, the triple-0 call may have been admissible. He submitted, however, that where that evidence had been given before the triple-0 call, the evidence of the call was simply unnecessary. 2. It cannot be that the evidence of the triple-0 call could be admissible if given first but inadmissible if given second where, on the face of ss 55 and 66 there is nothing to preclude the evidence being given, and those sections permit its admission. In any event, that course is prima facie prohibited by s 66(4). 3. Here, the circumstances set out in s 66(2) are satisfied because at the time the representation in the call was made it was fresh in the memory of Mr Elmrabt, and he was called to give evidence. 4. I note in passing that in R v Castaneda (No 2) [2015] NSWSC 979 Wilson J cited s 66 in admitting a triple-0 call made by an accused immediately after a killing where the accused relied on self-defence. Wilson J said at [21]: The accused has consistently asserted that the deceased attacked her and, fearing for her safety, she pushed out at him to stop his onslaught, striking the fatal blow in the process. Although the level of detail given by Ms. Castaneda differed between conversations, she has consistently maintained the content, that is, that she acted in self-defence. This was asserted to the Triple 0 operator, to the first police to respond to her call for help, and to her former husband, to whom she spoke in the hours after the stabbing. Her accounts to these individuals are all available to the jury to go to the truth of what she said: s.66 of the Act. 1. For these reasons, I ruled that the evidence contained in the triple-0 call was admissible. 2. Since ruling in this matter on 14 November, Mr Elmrabt was cross-examined robustly, and his credit was certainly put in issue, even touching his evidence in the triple-0 call. In those circumstances, it would have been open to the Crown to have tendered the call in re-examination based on s 108(3)(b).