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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Moodoonuthi  QSC 002
MOODOONUTHI, Raynard Gregory
Indictment No 16 of 2020
Supreme Court of Queensland
DELIVERED EX TEMPORE ON:
9 December 2020
7 December 2020, 8 December 2020
I will instruct the jury they may act upon the content of exhibit 6, as if it were evidence given before them in this trial, and may act upon such parts of its content as they find to be reliable as evidence of the truth of its content.
EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTIONS: MISCELLANEOUS – where, at a re-trial, the defendant pleaded not guilty to a charge of attempted murder – where at the previous trial the the jury failed to reach verdict in relation to the charge of attempted murder – where the Crown was unable to locate a witness who gave evidence at the previous trial – where the Crown and the defence seek to rely upon an audio recording of the witness’ evidence at the previous trial for the truth of its contents – whether the audio recording can be relied upon for the truth of its contents despite its hearsay character
Criminal Code 1899 (Qld), s 644
Evidence Act 1977 (Qld), s 21A, s 93
Justices Act 1886 (Qld) s 111
Pallante v Stadiums Pty Ltd (No 2)  VR 363, applied
R v Austen (1856) 7 Cox CC 55, cited
R v Cohen (1899) 34 LJ 623, cited
R v Coombes  QCA 157, considered
R v Radford (1993) 66 A Crim R 210, cited
R v Trieu  QCA 28, considered
Reg v Hall  1 QB 496, applied
Reg v Thompson  1 QB 647, applied
P McCarthy QC, with C Georgouras, for the Crown
T Grau for the defendant
Office of the Director of Public Prosecutions (Queensland) for the Crown
Cuthbertson & Co for the defendant
HIS HONOUR: A question has arisen on the accused's retrial as to the use to which the jury can put the recorded evidence of a witness given at the accused’s first trial.
The accused is charged on indictment with:
Count 1 – Indecent assault;
Count 2 – Assault occasioning bodily harm;
Count 3 – Attempted murder, alternatively, wounding with intent to do grievous bodily harm.
In September 2020, the accused pleaded guilty to count 2 and went to trial on counts 1 and 3. The jury convicted him on count 1 but were unable to agree and were discharged in respect of count 3.
In summary, the prosecution case is that the accused indecently assaulted a Chilean tourist in the kitchen at a backpacker hostel. She described it as obviously deliberate touching, whereas he, in evidence at the trial in September, claimed it was accidental. In any event, she reacted by striking him on the head with a teacup. He became enraged, committing assault occasioning bodily harm on her in the kitchen. The complainant and her travelling companion, Ms Fernandez-Aedo, ran away towards the street front where the accused, who ran after them with a carving knife, caught up with the complainant and stabbed her in the lower neck. The latter act gives rise to the charge of attempt murder, for which he is being tried again.
The prosecution cannot locate Ms Fernandez-Aedo. When she gave evidence in the September trial, she did so by telephone from Chile with my leave and the consent of the defendant. It was mentioned at that time that the prosecution had experienced difficulty in getting her to give evidence. At the end of the first trial, I directed that a copy of the recording of her evidence be procured from Auscript and placed with the court file.
At the outset of the present trial, the parties indicated they each wanted her testimony, recorded at the first trial, played to the jury in this trial. Defence counsel indicated he perceived forensic advantage for his client in Ms Fernandez-Aedo’s testimony being before the jury, notwithstanding that there was an inconsistency he did not put last time which he would put to her if she were available. Evidently, defence counsel is content that the inconsistency can be adequately exposed by other evidence which will be before the jury.
The parties indicated it was intended to place the testimony before the jury by a joint admission, per s 644 Criminal Code. Yesterday, in the jury’s presence, they joined in making their admission and the playing of Ms Fernandez-Aedo’s testimony to the jury commenced. During the first jury break, the recording was made exhibit 6 by consent, with it being acknowledged it would not go to the jury room with the other exhibits and that, if the jury required reminding of its content, they would be read a transcript of the relevant passages.
I then raised with counsel the question of what use the jury could put the recording to. Both sides indicated, unsurprisingly, that they wanted to rely upon the recorded testimony, specifically such of it as the jury accepted was reliable, as evidence of the truth of its content. In short, they wanted to treat the testimony as if it had been given as evidence in this trial.
Argument ensued to some extent yesterday during jury breaks and concluded this morning. The admission accompanying the receiving of the recording was that it was a recording of Ms Fernandez-Aedo’s evidence given in the Supreme Court on 1 September 2020 and that it is the evidence that she would give in this trial if she were here. The admission was modelled on that made in R v Trieu  QCA 28. In that case the statement of a missing witness was read to the jury without being exhibited and the Court of Appeal considered that by virtue of the admission the account “in a regular way” became evidence.
The status accorded to such evidence by an admission was doubted in R v Coombes  QCA 157 but the point was not determined because the appellant had consented to the process followed. I accept s 644 does permit the parties to make an admission of the kind made, just as I accept the court may, as it has here, accept with the parties’ consent the recording the subject of the admission as an exhibit. The doubt with which I am concerned is what the jury are to be told as to the use they can put the evidence to.
The ordinary rule is that once an exhibit is before the jury it may give the content of the exhibit such weight as it thinks fit, subject though to the trial judge’s directions as to any limitations on the use to which the evidence can be put and such directions as may be necessary to safeguard against its misuse.
The dilemma is that the record of the testimony is, prima facie, hearsay. Unless an exception applies, the jury is ordinarily told they must not act upon hearsay evidence as evidence of the truth of its content. The parties each want to urge the jury to rely upon the recorded testimony as evidence of the truth of its content. The admitted fact that the recording contains the testimony the witness would give (her “intended testimony”, as it was put in Trieu) does not, of itself, remove the hearsay nature of the evidence, nor does its receipt as an exhibit.
The point is not solved by reference to statute. The evidence is not, for example, in the nature of a trade or business record, per s 93 Evidence Act 1977 (Qld), or pre-recorded evidence, per s 21A Evidence Act, or a deposition of a witness, per s 111 Justices Act 1886 (Qld). However, it is apparent from the variable mix of provisions of the kind just mentioned, that statute does not purport to cover the field of circumstances under which evidence of the present kind may be acted upon as if evidence given in a trial. Section 65(3) Uniform Evidence Act, in operation in the Commonwealth jurisdiction and in some states, addresses the issue but has no application in this jurisdiction.
At common law evidence, of the present kind, necessitated by a witness being unavailable in certain circumstances, can be received and acted upon as if it is evidence given in the trial. Tests as to the requisite degree of availability of the witness vary – compare, for example, R v Austen (1856) 7 Cox CC 55 and R v Cohen (1899) 34 LJ 623. In an era of telephone and digital conferencing, absence overseas may, of itself, be a less persuasive consideration than it once was.
However, in circumstances where the present witness is a foreign national, absent overseas and unable to be found there and where the defence support the receipt of the evidence, rather than contending for an adjournment for further enquiries as to her whereabouts to be pursued, I readily conclude the witness’s unavailability is such as to enliven the application of the common law test.
That test, subject to some exceptions of no relevance here, is whether the evidence is evidence which was taken under oath or affirmation, whether there was an opportunity to cross-examine and whether the issues in the proceeding at which the evidence was taken are the same or substantially the same as at the former proceeding – see, for example, Reg v Thompson  1 QB 647; Pallante v Stadiums Pty Ltd (No 2)  VR 363; Reg v Hall  1 QB 496.
The rationale for such a test is readily reconcilable with the principles which give rise to exceptions to the hearsay rule. An important consideration underpinning the hearsay rule is that hearsay evidence ought not to be acted upon as the truth of its content because the parties will not have had an opportunity to test its reliability. In the absence of that opportunity, subject to some exceptions such as admissions against interest, it is not possible to form a view of the reliability of the content in the hearsay evidence. Such concerns do not arise in circumstances where the aforesaid test is met. In such circumstances, there should not be a rigid application of the hearsay rule – see Radford (1993) 66 A Crim R 210 at 235–6. Indeed, in circumstances where the test is met, the circumstances will operate as an exception to the hearsay rule.
The test is clearly met here, in that the evidence was taken under oath, there was an opportunity to cross-examine, which was exercised, and the issues in the proceeding at which this evidence was given are, for practical purposes, the same as they are now. That is because, while the jury is no longer required to determine the charge alleging misconduct in the kitchen, the question of what occurred in the kitchen is inextricably connected with the stabbing which followed, as the chain of the accused’s tumultuous and ongoing reaction moved from the kitchen to the street front. Most obviously, that temporally proximate evidence is relevant to the jury’s consideration of the element of intent. There is therefore an alignment of the purpose for which the witness gave evidence and was cross-examined at the first trial, with the purpose for which each party would seek to rely upon the record of her testimony in the present trial.
To the extent there is an insubstantial variation, namely the inconsistency point alluded to earlier, it can be dealt with without the defendant suffering any material disadvantage. As much is implicit in the defence’s joining in an admission by which the parties consensually sought to be left with evidence, which they contend the jury should act on, to the extent they find it reliable, as evidence of the truth of its content.
For these reasons, I will instruct the jury they may act upon the content of exhibit 6, as if it were evidence given before them in this trial, and may act upon such parts of its content as they find to be reliable as evidence of the truth of its content.
- Published Case Name:
R v Moodoonuthi
- Shortened Case Name:
R v Moodoonuthi
 QSC 2
09 Dec 2020