R v Li [2017] NSWDC 144

R v Li [2017] NSWDC 144

Ye Zhang was not relevantly unavailable because the prosecution had not taken all reasonable steps to find her or secure her attendance; the inquiries were superficial, late and insufficient, including reliance on an email address that could not reliably be regarded as current and failure to make independent inquiries of persons known to her. Kevin was unavailable because, although uncooperative and overseas, he was aware of the proceedings and had refused to give evidence by any means, leaving little else the authorities could do to compel his evidence. Kevin's statement was not made when or shortly after the asserted facts for s 65(2)(b), but limited representations with hallmarks of...

Jurisdiction
Australia
Judgment Date
08 May 2017
Procedural Posture
Criminal / Procedural Ruling on the Crown's Notice/application to Lead Evidence Under S 65 Evidence Act 1995 on the Basis That Two Witnesses Were Unavailable
Outcome
Witness 1, Ye Zhang, was held not relevantly unavailable because reasonable enquiries had not been made by the prosecuting authority. Witness 2, Rong Jun Li, also known as Kevin, was held unavailable, but only limited representations were admissible.
Legal Topics
['unavailability of Witnesses' 'hearsay Exceptions' 'representations by Unavailable Witnesses' 'reasonable Steps to Secure Attendance' 'whether Representations Were Made When or Shortly After Asserted Facts' 'reliability of Representations']
['criminal Law' 'evidence'] ['unavailability of Witnesses' 'hearsay Exceptions' 'representations by Unavailable Witnesses' 'reasonable Steps to Secure Attendance' 'whether Representations Were Made When or Shortly After Asserted Facts' 'reliability of Representations']

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Procedural Posture

Criminal / Procedural Ruling on the Crown's Notice/application to Lead Evidence Under S 65 Evidence Act 1995 on the Basis That Two Witnesses Were Unavailable

Legal Issues

  1. 1 ['Whether Ye Zhang was not available to give evidence within Pt 2 of the Dictionary of the Evidence Act 1995 because all reasonable steps had been taken to find her or secure her attendance.' 'Whether Rong Jun Li, also known as Kevin, was not available to give evidence because all reasonable steps had been taken to compel him to give evidence without success.' "Whether the witnesses' representations were admissible under s 65(2)(b) of the Evidence Act 1995 as made when or shortly after the asserted facts occurred in circumstances making fabrication unlikely." "Whether the witnesses' representations were admissible under s 65(2)(c) of the Evidence Act 1995 as made in circumstances making it highly probable that the representations were reliable."]

Ratio Decidendi

Ye Zhang was not relevantly unavailable because the prosecution had not taken all reasonable steps to find her or secure her attendance; the inquiries were superficial, late and insufficient, including reliance on an email address that could not reliably be regarded as current and failure to make independent inquiries of persons known to her. Kevin was unavailable because, although uncooperative and overseas, he was aware of the proceedings and had refused to give evidence by any means, leaving little else the authorities could do to compel his evidence. Kevin's statement was not made when or shortly after the asserted facts for s 65(2)(b), but limited representations with hallmarks of...

Court Disposition

Witness 1, Ye Zhang, was held not relevantly unavailable because reasonable enquiries had not been made by the prosecuting authority. Witness 2, Rong Jun Li, also known as Kevin, was held unavailable, but only limited representations were admissible.

Orders

  • ['Witness 1: The witness is not relevantly unavailable because reasonable enquiries have not been made by the prosecuting authority.' 'Witness 2: The witness is unavailable, but limited representations admissible.']