R v Cunningham; R v Moarefi (No 3)

[2020] ACTSC 268

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cunningham; R v Moarefi (No 3)
Citation:	[2020] ACTSC 268
Hearing Dates:	21 September 2020
Decision Date:	21 September 2020
Reasons Date:	9 October 2020
Before:	Burns J
Decision:	See [8]
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility of evidence –
whether contents of statements marked a significant change in
the nature of the Crown’s case shortly before the trial – whether
alleged representations by Mr Cunningham were admissible in
the case against Mr Moarefi – consideration of s 65 of the
Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT) s 65 Firearms Act 1996 (ACT)
Cases Cited:	R v Grills (1910) 11 CLR 400
Parties:	The Queen (Crown) Christopher Cunningham (Accused)
The Queen (Crown) Benjamin James Moarefi (Accused)
Representation:	Counsel
M Dyason (Crown) T Jackson (Accused)
A Haban-Beer (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) Boxall Legal (Accused)
File Numbers:	SCC 214 of 2019; SCC 215 of 2019; SCC 270 of 2019
BURNS J:

1.       The accused are charged with offences said to arise from an incident on 2 March 2019 where shots were fired after a dispute between two groups on a street in suburban Canberra. They were arraigned on 21 September 2020 on an indictment containing the following five counts:

• Count 1: that on 2 March 2019 the accused Christopher Cunningham intentionally inflicted grievous bodily harm on HP;

• Count 2: in the alternative to Count 1 that on 2 March 2019 Christopher Cunningham discharged a loaded firearm at HP so as to cause another person reasonable apprehension for his safety;

• Count 3: that on 2 March 2019 the accused Benjamin Moarefi aided and abetted the commission of an offence by Christopher Cunningham namely, intentionally inflicting grievous bodily harm on HP;

• Count 4: in the alternative to Count 3 that on 2 March 2019 Benjamin Moarefi aided and abetted the commission of an offence by Christopher Cunningham namely the discharging of a loaded firearm at HP so as to cause another person reasonable apprehension for his safety; and

• Count 5: that on 18 April 2019 Christopher Cunningham possessed a prohibited firearm and was not authorised by a license, permit or otherwise by the Firearms Act 1996 (ACT) to possess that firearm.

2.       The accused entered pleas of not guilty to all charges, and a jury was empanelled. Before any evidence was taken, counsel for the accused Benjamin Moarefi raised certain objections to evidence which the Crown proposed leading against him. The evidence objected to was contained within written statements only recently provided to police by MO, BZ and FM. Each of those statements allege that Christopher Cunningham made representations to the author of the statement that the Crown alleges constitutes admissions by him that he was the person who discharged the firearm which is alleged to have wounded HP. In addition, in her statement, MO alleged that on an occasion she, FM and their children were visiting Christopher Cunningham at the Alexander Maconochie Centre, after the alleged

offences, he introduced her to a male he named as “Ben”. MO said that the accused described Ben as his co-accused and “the driver of the car”. The Crown alleges that

the male was the accused Benjamin Moarefi and that

Christopher Cunningham’s statement that Ben was the driver of the car is a

representation that Benjamin Moarefi was the person who drove
Christopher Cunningham away from the scene of the shooting.

3.       Ms Haban-Beer for Mr Moarefi objected to the Crown being permitted to call any of the proposed evidence on the grounds that the contents of the statements marked a

significant change in the nature of the Crown’s case shortly before the trial was due to

commence. In the alternative, she submitted that the representations said to have been made by Mr Cunningham regarding Mr Moarefi should not be admissible against her client.

4.       Mr Jackson for Mr Cunningham did not object to the proposed evidence being called against his client.

5.       The fact that Mr Jackson did not object to the evidence being led against his client disposes of the question of the admissibility of the evidence against Mr Cunningham, leaving only the second objection made by Ms Haban-Beer. In deference to

Ms Haban-Beer’s submissions, I will briefly consider the matters she raised concerning

the general admissibility of the evidence. I was satisfied that the proposed evidence did not represent a change in the way the Crown put its case against either accused. The proposed evidence, if accepted by the jury, simply supported the case which the Crown was advancing against the accused. The evidence of alleged admissions by Mr Cunningham was clearly relevant and had the capacity to have significant probative value. Whether it would do so is a matter for the jury. For this reason, I ruled that the proposed evidence of alleged admissions by Mr Cunningham was admissible in his case.

6.       Prima facie, the representations allegedly made by Mr Cunningham regarding Mr Moarefi are not admissible as evidence against Mr Moarefi: R v Grills (1910) 11 CLR 400 at 422 per Isaacs J. The Crown relied on s 65 of the Evidence Act 2011 (ACT) (the Evidence Act) which applies in criminal proceedings where a person who made a previous representation is not available to give evidence. The section relevantly provides:

65 Exception—criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous

representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous

representation that is given by a person who saw, heard or otherwise perceived

the representation being made, if the representation—

(a)	was made under a duty to make that representation or to make representations of that kind; or
(b)	was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication; or
(c)	was made in circumstances that make it highly probable that the representation is reliable; or

(d) was—

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is

reliable.

Note Section 67 imposes notice requirements relating to this subsection.

7. The Crown submitted that Mr Cunningham is a person who is unavailable to give evidence in the trial of Mr Moarefi because he, Mr Cunningham, is a co-accused and cannot be called by the Crown to give evidence against Mr Moarefi. I assumed for the purposes of determining the application that this submission was correct. The Crown relied on s 65(2)(d) of the Evidence Act as the basis for the application. I was prepared to assume for the purposes of the application that the representations allegedly made by Mr Cunningham were against his interests at the time he made them.

8.       The Crown submitted that I could be satisfied that the alleged representations were

“made in circumstances that make it likely that the representation is reliable” because

they are said to have been made to his former partner. I was not satisfied that this was a sufficient basis for determining that it was likely that the alleged representations were reliable. For this reason, I determined that the alleged representations were not admissible under s 65 in the case against Mr Moarefi.

9.       These reasons are not to be published other than to the parties until such time as the trial of both accused is concluded.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

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