R v Krishnan [2017] NSWDC 460

District Court New South Wales

Medium Neutral Citation: R v Krishnan [2017] NSWDC 460 Hearing dates: 7, 8, 9 November 2017 Decision date: 09 November 2017 Jurisdiction: Criminal Before: King SC DCJ Decision: Judgment – evidence of "Community Accountability Meeting" found admissible Catchwords: CRIMINAL – judgment on admissibility of evidence – application by defence for court to reject evidence including signed statement and electronically recorded conversation between the complainant, the accused and 8 other persons - "Community Accountability Meeting" – accused charged with 5 counts of sexual intercourse without consent, knowing the complainant was not consenting & 1 count of assault & at the time of the assault committing an act of indecency – direct or indirect admissions – improperly obtained evidence - probative value – unfair prejudice – evidence admissible Legislation Cited: Evidence Act 1995 Crimes Act 1900 Cases Cited: Parker v Controller General of Customs (2009) 83 ALJR 494 Category: Procedural and other rulings Parties: Regina Rishi Krishnan Representation: Counsel: Mr S Lawrence

Solicitors: Ms V Garrity Ms H Blake Mr C Hearn File Number(s): 2016/00083206 Publication restriction: NPO in respect of the name of the complainant and anything that might tend to identify her

Judgment 1. HIS HONOUR: In the matter of Rishi Krishnan, an application has been made on behalf of the accused, on the voir dire, for the Court to reject all evidence, including a signed agreement, and an electronically recorded conversation between the complainant, the accused, and eight other persons, recorded on 9 January 2016, relating to a meeting, titled "Community Accountability Meeting". 2. The accused is charged with five offences, all alleged to have occurred on 23 January 2016 at Mona Vale, all in relation to the same complainant, being KQ. 3. Counts 1, 2, 3 and 4 are all offences contrary to s61I Crimes Act 1900, that is, having sexual intercourse without consent, knowing that she was not consenting. The fifth count is an offence of assaulting her, and at the time of the assault committing an act of indecency, contrary to s61L of the Act. 4. The accused has been arraigned, and has pleaded not guilty in relation to each of the five counts in the indictment. The voir dire has proceeded prior to the empanelment of the jury. 5. On the voir dire the Crown has tendered statements of KQ, dated 29 February 2016, 23 September 2016, 6 November 2017 and 7 November 2017, and the statements of Kristina Hollestelle, dated 14 August 2016, 11 October 2017, and 31 October 2017. In addition, the statements of Robert Little, dated 18 February 2016 and 12 September 2016, a statement of Miss Quille, dated 2 November 2016, and a statement of Detective Senior Constable Kathleen Collins, dated 6 July 2016. 6. The Crown has tendered an audio CD of what is referred to as a "Community Accountability Meeting", and a transcript of that meeting, the meeting being of almost three hours in length. The audio was played on the voir dire. In addition to the statements, KQ and Robert Little were called to give evidence on the voir dire. 7. Nothing was tendered on behalf of the accused, nor did the accused give evidence on the voir dire. 8. In relation to the application, Mr Lawrence, on behalf of the accused, relied on s 85 (1) (b), (2) and (3), as well as sections 90, 137 and 138 of the Evidence Act 9. The offences are alleged to have occurred on 2 January 2015. In the early hours of the morning the complainant made complaint to Robert Little. Later at about midday the accused was confronted with the allegation, although not in any specific detail. 10. On 5 January 2015 the complainant attended various university health services as a result of the alleged offending, as well as attending on her normal general practitioner on Friday 8 January 2015. Also on 8 January, as she happened to be passing the Newtown Police Station, she attended on Detective Senior Constable Collins, and reported the incident. The report was the subject of handwritten notes made by the officer. 11. She was asked if she wished to make a formal police statement, and indicated she was unsure what she wanted to do, because she had been friends with the accused for over 10 years, and was considering other options to make the accused accountable for his actions, such as getting a number of their respective friends together to have a discussion about the incident. She indicated that she preferred that the accused would seek help in relation to psychological and substance abuse counselling. 12. On the following day, 9 January 2016, the meeting described as a "Community Accountability Meeting" was held in a room that had been arranged at the Sydney University Law School. In addition to the accused, there were at least another nine persons in attendance. At the outset of the meeting, each of the persons in attendance agreed that the meeting be audio recorded, including of course the accused. As previously indicated, the meeting occupied the better part of three hours, and towards the conclusion of it, the accused read on to the record the document he had been asked to sign, and then signed the document, as did each of the other persons present. 13. During the course of the meeting the accused made a number of statements which might be regarded as either direct or indirect admissions of guilt. 14. The Crown on the voir dire initially did not indicate that it intended to rely only on part of the conversation, however, during the course of the voir dire the Crown confined itself to a number of indicated parts. 15. There is no dispute that some of the statements made by the accused during the course of the meeting could be regarded as either direct or indirect admissions, including of course the signed statement that he read on to the record. 16. Section 85, as relevant to the current application, provides: (1)(a) This section applies only to criminal proceedings and only to evidence when an admission is made by an accused: ... (b) as a result of an act of another person who was, and who the accused knew, or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters the court may take into account for the purposes of sub-s 2, it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education, and any mental, intellectual or physical disability to which the person is or appears to be subject; and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put; and (ii) the nature of any threat, promise, or any other inducement made to the person questioned. 1. There is no evidence before the Court that the accused was subjected to any threat, promise, or other inducement to participate in the Community Accountability Meeting by the complainant, or any other person attending, or otherwise. That is, his attendance was free and voluntary.Having listened to the whole of the audio it is clear that the accused was not subjected to any hostile aggressive or even particularly challenging questioning. The accused at the time was some 27 years of age. As I understand, all of the persons in attendance were known to him as at least his friends or acquaintancess. There is no evidence that he suffered from any relevant condition or characteristic including age, personality, education or any mental, intellectual or physical disability which might be relevant to Subsection (3)(a). 2. I am unable to find on the basis of the evidence placed before the Court on the voir dire that the admissions, direct or implied, were made in circumstances other than were "unlikely that the truth of the admission was adversely affected". 3. Section 85(1)(b) is widely framed and does appear to have captured the circumstance that a complainant is a person who the accused would have known or reasonably believed to be capable of influencing decisions, whether a prosecution of him should be brought or should be continued. At the time of the meeting no prosecution had commenced and no formal statement had been made by the complainant nor had she sought that any prosecution be commenced. No formal statement was made by the complainant until the 9th of February 2015 and was not apparently made until such time as she came to believe that the accused was not complying genuinely with the agreement reached at the Community Accountability Meeting. 4. Accordingly, I am of the view, accepting that s 85(1)(b) applies in the circumstances that no ground exists for rejecting the admissions. 5. Mr Lawrence has also relied on s 90 of the Evidence Act which provides: "In a criminal proceeding, the Court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if; (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made it would be unfair to the accused to use the evidence." 1. As previously referred to the meeting was an entirely voluntary meeting in respect of each of those attending, including the accused. The accused was clearly aware that there was no requirement for him to attend or participate in the meeting. He elected to do so accepting that it would be recorded and at the conclusion of the meeting he elected to, as requested, read the agreement for the purposes of it being recorded as well as then signing his acceptance of the agreement. There is nothing in the circumstance which indicates that it would be unfair to him for the prosecution to be able to use the evidence of the admissions as relevant to the determination of the issue as to whether the offending conduct had occurred. 2. Mr Lawrence has also relied on s 137 which provides that: "In a criminal proceeding the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused." 1. Unfair prejudice in essence relates to whether a jury would be likely to use the evidence in some impermissible way. The fact that it might assist in proving the prosecution case is not unfair prejudice. 2. I am of the view, having considered the material before the Court, that the admissions have significant probative value and that there is little danger of unfair prejudice to the accused. 3. I note in that regard that it may be necessary for greater consideration to be given to those parts of the conversation on which the Crown relies on and the agreement to the extent they may disclose matters that would be prejudicial to the accused such as the use of drugs, either prohibited or un-prescribed or other relevant matters. It may well be that consideration would need to be given by Mr Lawrence to the context of the limited portions intended to be provided to the jury as to whether they should be expanded to put them in their proper context, but I note although the Crown has indicated the specific passages on which it seeks to rely Mr Lawrence has not addressed any submissions to the individual passages. 4. Mr Lawrence further relies on s 138 which provides: (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the question, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters the Court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence; and the nature of the subject-matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention contrary to or inconsistent with the right of a person recognised by the International Covenant on Civil and Legal Rights; and (g) whether any other proceeding(whether or not in a Court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of Australian law. 1. The Evidence Act does not define the meaning of 'impropriety' or 'improperly'. Clearly s 138 does not require the involvement of the state in any impropriety. 2. Mr Lawrence in his submissions has referred to a decision of Parker v Controller General of Customs (2009) 83 ALJR 494, French CJ sighting the Oxford English dictionary definition of 'improper" as including; "...not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, or wrong." 1. In my view the relevant understanding of the words 'improperly' or "impropriety" contained in s 138 can be appropriately regarded as a being, "not in accordance with accepted rules of behaviour", a phrase also taken from the concise Oxford English Dictionary. 2. I am of the view that in the way the matter developed leading to the Community Accountability Meeting and the accused's participation in that meeting on the evidence before the Court was in no way improper or as the consequence of any impropriety or contravention of an Australian law. Accordingly, the evidence will be admitted. 3. However, saying that I note my previous comment or comments in relation whether some consideration needs to be given by Mr Lawrence as to whether more than the Crown proposes to tender should be tendered in order to put any particular answer the Crown relies on in a more relevant context, or, whether some particular parts may need to be excised because they may be prejudicial to the accused such as for example references to his drug use. I anticipate that those matters should be capable of being resolved by the parties, but if not I will in the future deal with any ongoing issues. 4. Although the Crown has indicated each of the passages it intends to rely on I have not for the purposes of this judgment given individual consideration to the passages in the absence of any specific submissions having been made by Mr Lawrence other than the context of their general admissibility if they include direct or implied admissions. I will note, however, in relation to page 4 of the transcript the second passage indicated by the Crown, being the fourth V4 entry from the bottom of page 4 commencing with the words, "From the conversation we had" that I have some difficulty in understanding how that might be said to involve either a direct or implied admission; because at that point they had been talking about what Mr Little had told the offender of what was alleged. The offender outlined what he had been told and V3 said: "Can you please recall what you remember from that conversation." V4 responds: "From conversation we had, as in what, so what, so, ah, so as I remember, ah, that I definitely needed to make a commitment to something like at least short term sobriety, um, about getting professional help and about taking responsibility." 1. In my view he is simply repeating what he understood as a result of the conversation in which he was informed of what was alleged to have happened. It does not appear to either directly or indirectly contain any admission. There may be other such relevant passages. That is merely one I noticed in passing.