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This decision concerned a retrial in which a witness from the original trial could not be located. The Crown and defence sought to rely upon a recording of the witness’ evidence –as evidence of the truth of its content – through making a joint admission under s 644 of the Criminal Code 1899. Justice Henry allowed this course of action, considering that such an admission was permissible and that the circumstances satisfied the common law test that permitted, as an exception to the hearsay rule, evidence given by a now unavailable witness to be received and acted upon as if it was evidence given in the retrial.
9 December 2020 (delivered ex tempore)
The accused was charged on indictment with indecent assault, assault occasioning bodily harm and attempted murder. He pleaded guilty in September 2020 to assault occasioning bodily harm and went to trial on the other counts. The jury found the accused guilty of indecent assault but were unable to agree on a verdict on the attempted murder count.
The Crown was unable to locate one of the witnesses for the retrial. The witness was a Chilean national who had given evidence by telephone from Chile at the first trial. The Crown and defence agreed instead to place an audio recording of the witness’ testimony before the jury by making a joint admission under s 644 of the Criminal Code 1899.
The parties sought to rely upon those parts of the recorded testimony that the jury considered to be reliable as evidence of the truth of its content.
Justice Henry accepted that s 644 permitted the parties “to make an admission of the kind made and [for the Court to] accept, with the parties’ consent, the recording … as an exhibit”. However, his Honour observed that neither the “admitted fact that the recording contains the testimony the witness would give … nor its receipt as an exhibit” changed the fact that it was, prima facie, hearsay. Furthermore, no statutory exception applied.
Nonetheless, Henry J considered that the circumstances engaged the common law test – which operated as an exception to the hearsay rule in certain circumstances where a witness was unavailable – that permitted “evidence … [to] be received and acted upon as if it is evidence given in the trial”. His Honour explained that:
“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 … “
According to Henry J, the test was “clearly met” in this case. Importantly, the issues in the original trial and the retrial were “for practical purposes, the same”. The fact that there was an “insubstantial variation” – a new inconsistency point that the defence would put at the retrial if the witness was available – this could be “dealt with without the defendant suffering any material disadvantage”.
In the result, the jury was instructed that it may act upon the recording as if it were evidence given before them in the retrial and may act upon such parts of its content as they find to be reliable as evidence of the truth of its content.