R v Quintana (No. 1) [2020] NSWSC 23

Supreme Court New South Wales

Medium Neutral Citation: R v Quintana (No. 1) [2020] NSWSC 23 Hearing dates: 24 and 28 January 2020 Date of orders: 28 January 2020 Decision date: 30 January 2020 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave for the giving of evidence by AVL by Nadine Tairi is refused. Catchwords: CRIMINAL LAW – evidence given by audio visual link – evidence given from location outside Australia – compellability of witness located outside Australia – critical eye witness – credibility issues – multiple versions given – witness relevant to self-defence issue Legislation Cited: Trans-Tasman Proceedings Act 2010 (Cth) Category: Procedural rulings Parties: Regina (Crown) Rey Quintana (Accused) Representation: Counsel: D Daleo (Applicant) A Evers (Respondent)

Solicitors: Solicitor for Public Prosecutions (Applicant) Oxford Lawyers (Respondent) File Number(s): 2018/00067200 Publication restriction: Nil

Judgment 1. The accused has been charged with the murder of Thomas Halakoa, also known as Thomas Booth, on 28 February 2018 at Tregear in New South Wales. In addition to the accused and the deceased, Tekawau Opai and Nadine Tairi were present in the apartment where it is said the stabbing took place. 2. The Crown has made application pursuant to s 50 of the Trans-Tasman Proceedings Act 2010 (Cth) for the evidence of Ms Tairi to be taken by AVL from New Zealand without any compulsive process such as a subpoena being able to be issued. This application was first served on the accused's legal representatives on 24 January 2020. 3. The accused had been arraigned before Fullerton J on 3 May 2019 and pleaded not guilty to murder. The matter was listed for trial on 3 February 2020. Nothing was raised by the Crown regarding any difficulty with the securing of attendance or the locating of any Crown witness. 4. On 6 September 2019 the matter again came before Fullerton J in the arraignments list to advise on the identity of the trial judge. The hearing date was confirmed, as was the three-week estimate. Nothing was raised by the Crown regarding any difficulty with locating or securing the attendance of any Crown witness. 5. On 12 December 2019 the matter was listed before me to determine whether there were any pre-trial issues. This was the first time the Crown shared with the Court that there was any issue about securing the attendance of Ms Tairi. During that directions hearing Ms Daleo, the Crown Prosecutor appearing, agreed that Ms Tairi was an important witness and that the Crown position was that she should be present in person to give evidence. I was also informed that the trial was likely to finish well within the three-week estimate. 6. The matter was listed again before me on 13 December 2019 to clarify with precision the active steps being taken to secure the attendance of Ms Tairi and to ensure that the trial remained on track to commence as listed, before a jury, on 3 February 2020. 7. I was assured by Ms Daleo that once I "received the material" addressing the securing of the attendance of Ms Tairi, that I would "see that everything was well in hand" and that "in the light of that material, the Crown submission is that the Court will not be concerned in relation to the extradition of Ms Tairi". 8. I ordered an affidavit be filed and served addressing in detail the steps taken and yet to be taken that were necessary to secure the attendance of Ms Tairi. An affidavit of Nathan Johnston set out those steps, and concluded as follows: "[21] From discussions with Detective Sgt Rynehart I understand that he has now submitted a report formally requesting the extradition of Ms Tairi along with the Director's undertaking. From this point, it is anticipated that the process will take a further 2 to 4 weeks for the extradition request to be submitted to Interpol, Wellington, at which point Ms Tairi can be provisionally arrested. I also understand that Ms Tairi will then be provided a two-week period in which to seek legal advice as to whether she will challenge the lawfulness of the extradition. If she does not challenge the extradition, I understand Ms Tairi will be transported to New South Wales. If she does challenge the extradition, I anticipate the Crown will make an application to court as a witness to give evidence by audiovisual link from New Zealand." 1. On 19 December 2019 Mr Kimbell appeared for the Crown and it was noted by the Court that the matter "is as on track as it can be". 2. Unfortunately it is now evident that the information provided to Mr Johnston was inadequate as to the multiple steps and technical aspects of extradition that were still required. It seems also that despite multiple attempts by Mr Johnston to chase up what was happening, the necessary documentation that had to be prepared by New South Wales Police before New Zealand Police could commence to arrest and extradite, had multiple steps to be taken before it reached the necessary approval by the New South Wales Police Minister. That approval was not secured till 23 January 2020, although I note approval was provided immediately, as was the prior approval of the Police Commissioner on 22 January 2020. 3. On 24 January 2020 an application was served by the Crown upon the legal representatives for the accused, seeking leave pursuant to s 50 of the Trans-Tasman Proceedings Act for Ms Nadine Tairi to give evidence from New Zealand by way of audio-visual link. 4. Obviously this application coming so late, and against a background of late, disorganised and inadequate efforts to secure a fundamental witness (to which I will refer), causes great consternation, particularly when the accused is in custody, has been awaiting trial for almost 2 years, and was provided with a hearing date 10 months ago with no hint of this problem until six weeks before the trial was due to start. I add to this situation that not only did Mr Evers, counsel for the accused, make it clear in December 2019 that he required the witness in question to be present in person, the Crown Prosecutor with the conduct of the matter agreed with that position, and pressed upon the Court, on 13 December 2019, that it ought not be concerned that the attendance of the witness could not be secured. 5. This is obviously a highly unsatisfactory position. 6. The application was opposed, and for the reasons that follow, I determined at the end of the hearing of the application on 28 January 2020 that the application should be refused. Very short reasons were outlined with written reasons to be provided. These are my reasons for making that decision.