Regina v Amir Ibrahim El Mostafa & Saleh Khodr [2007] NSWDC 278

Regina v Amir Ibrahim El Mostafa & Saleh Khodr [2007] NSWDC 278

The witnesses' unavailability was not contested. Mr Sabanci's statement was inferred to have been made around 12.30am on 31 January 2005, within a couple of hours of the events, and Mr Aabdazzahra's statement was inferred to have been made within 24 hours. Both were made under the proximate pressure of the events. The circumstances at the police station, including people being emotional and excited, were not conducive to calm fabrication; the statements were not inherently unlikely, contained the standard police statement warning about truthfulness and prosecution for falsehood, and each witness would have appreciated that police would interview other witnesses. Therefore both statements...

Jurisdiction
Australia
Judgment Date
05 April 2007
Procedural Posture
Criminal Proceeding / Voire Dire Judgment on Crown Notices Under S 67 of the Evidence Act 1995 Seeking Admission of Previous Representations Under S 65(2)(b)
Outcome
The hearsay rule will not apply to the statements if tendered at trial.
Legal Topics
['hearsay Rule' 'unavailable Witness' 'previous Representations' 'evidence Act 1995 Ss 65 and 67' 'statements Made Shortly After Asserted Facts' 'fabrication']
['criminal Law' 'evidence'] ['hearsay Rule' 'unavailable Witness' 'previous Representations' 'evidence Act 1995 Ss 65 and 67' 'statements Made Shortly After Asserted Facts' 'fabrication']

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Procedural Posture

Criminal Proceeding / Voire Dire Judgment on Crown Notices Under S 67 of the Evidence Act 1995 Seeking Admission of Previous Representations Under S 65(2)(b)

Legal Issues

  1. 1 ['Whether the witnesses Ahmed Aabdazzahra and Yussuf Sabanci were not available to give evidence for the purposes of s 65(1) of the Evidence Act 1995.' 'Whether the previous representations in their statements were made when or shortly after the asserted facts occurred and in circumstances that made fabrication unlikely under s 65(2)(b) of the Evidence Act 1995.']

Ratio Decidendi

The witnesses' unavailability was not contested. Mr Sabanci's statement was inferred to have been made around 12.30am on 31 January 2005, within a couple of hours of the events, and Mr Aabdazzahra's statement was inferred to have been made within 24 hours. Both were made under the proximate pressure of the events. The circumstances at the police station, including people being emotional and excited, were not conducive to calm fabrication; the statements were not inherently unlikely, contained the standard police statement warning about truthfulness and prosecution for falsehood, and each witness would have appreciated that police would interview other witnesses. Therefore both statements...

Court Disposition

The hearsay rule will not apply to the statements if tendered at trial.

Orders

  • ['If evidence is tendered at the trial of the representations made in both statements, the hearsay rule will not apply to that evidence.']