R v Quintana (No. 4) [2020] NSWSC 33

Supreme Court New South Wales

Medium Neutral Citation: R v Quintana (No. 4) [2020] NSWSC 33 Hearing dates: 03 February 2020 Date of orders: 03 February 2020 Decision date: 04 February 2020 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The further application by the Crown for Ms Tairi's evidence at trial to be given by AVL is refused. Catchwords: CRIMINAL LAW – second application for evidence to be given by Ms Tairi from New Zealand by audio visual link – first application rejected - 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 and thus potential acquittal Legislation Cited: Trans-Tasman Proceedings Act 2010 (Cth) Cases Cited: R v Quintana (No. 1) [2020] NSWSC 23 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

Judgment 1. This is the second application made by the Crown for leave pursuant to section 50(1) of the Trans-Tasman Proceedings Act 2010 (Cth) to call the evidence of Ms Nadine Tairi in the murder trial of the accused by way of audio visual link ("AVL") from New Zealand. 2. On 30 January 2020 I published to the parties a judgment refusing to grant such leave based on the affidavit evidence then before me: R v Quintana (No. 1) [2020] NSWSC 23. 3. Pursuant to leave granted today, the second application dated 30 January 2020, was filed in Court. 4. As part of this second application, the Crown sought leave to call oral evidence from Ms Tairi by AVL in New Zealand. There were two bases for seeking this leave. First, allowing such evidence would permit the court to view the adequacy of the AVL suite provided in New Zealand and the visibility of the witness and thus facilitate an understanding of what the jury would be able to see should leave be given to lead evidence this way. Second, it would allow the Court to assess the witness's willingness to give evidence and cooperate with the court's processes entailed in giving evidence before the jury. 5. That application was opposed by Counsel for the accused, who submitted that first, I would have to treat with circumspection anything that the witness said and second, any professions of intended cooperation still did not get over the hurdle of the Court not being able to control the cooperation of a witness who is not subject to a compulsion to attend or to remain to give evidence as an ordinary witness physically present before a jury would be. 6. In my view the Crown is entitled to put its best evidence forward in support of its application. The previous application did not have adequate information to allow the necessary assessment of Ms Tairi's understanding of the court processes nor her willingness to cooperate to an acceptable level. Accordingly I granted leave for the oral evidence to be given by Ms Tairi by AVL in support of the application. 7. Ms Tairi told the Court that she understood that she will be required to answer questions in chief and in cross examination, and that she agreed to participate fully in the process and tell the truth. 8. She was cross-examined by counsel for the accused. She agreed that she had been refused bail and failed to comply with conditions of bail and that two weeks after Supreme Court bail was granted, she stopped living at the address she had been bailed to and just a few weeks after that, she left the State of NSW. 9. Ms Tairi knew that she was breaching the conditions of her bail and that a warrant could be issued for her arrest. Her family bought her a passport to assist her to leave the country and fly back to New Zealand. She knew this too was in breach of her bail conditions. 10. It was suggested to her by counsel for the accused that one of the reasons that Ms Tairi left Australia was because she did not want to go back to gaol. She answered: TAIRI: "No, no, no. I left because I had no life. You know, I left Sydney to go to Melbourne to try get a life. My aunty and uncle couldn't have me; otherwise I would have tried. My plan was once I went through counselling and things to get over what had happened, I would have come back and faced it. But my actual aunty and my dad were concerned for my mental health, so they said no, it's best that you come home. It wasn't like I was trying to dodge it. I was just trying to layoff it for a bit while got my head straight because it was quite a bit to go through on my own, as you would imagine". (T 16.4) 1. This is clearly however the reason she does not wish to return: EVERS: "Recently you have been contacted by a Detective Sergeant Aaron Rynehart; is that right?" TAIRI: "Yes, that's right". EVERS: "That is in relation to your willingness to give evidence in proceedings against Mr Quintana, correct?" TAIRI: "Yes, correct". EVERS: "Did he ever ask if you wanted to attend Australia in person to give that evidence?" TAIRI: "Yes". EVERS: "What did you say?" TAIRI: "I said no, no way. I will go to gaol". (T 16.19) 1. And then a few questions later: EVERS: "Are you willing to come to Australia to give evidence in this trial?" TAIRI: "Yes I would, if I didn't have to go to gaol. I don't come because I have come this far, I am working now, I am no longer on drugs, I am back with all my family and I think I am too good to be sitting in Silverwater, to be honest with you. Otherwise if that wasn't there, I would come over, hands down". (T 16.34) 1. And finally: EVERS: "Not who's willing to pay for your airfare back to Australia, but simply you don't want to go to gaol; is that right?" TAIRI: "Yeah. I am too good for that, way too good". (T 17.3)