Dodd v Director of Public Prosecutions & or

[2003] NSWSC 942

CITATION:	DODD v DPP & or [2003] NSWSC 942
HEARING DATE(S):	08/09/2003 09/09/2003
JUDGMENT DATE:	21 October 2003
JUDGMENT OF:	Dowd J at 1
DECISION:	Leave to appeal be granted; appeal dismissed; plaintiff to pay defendant's costs of the proceedings.
CATCHWORDS:	Appeal from evidentiary ruling on committal - exercise of discretion by magistrate - power of this court to intervene.
LEGISLATION CITED:	Evidence Act 1995 Justices Act 1902 Supreme Court Act 1970
CASES CITED:	Connor v Sankey (1976) 2 NSWLR 570 R v Ambrosoli (2002) NSWCCA 386 R v Colby (1995) 84 ACrimR 125 R v Lisoff (1999) NSWCCA 364 R v Suteski (2002) NSWCCA 509 Waterhouse v Gilmore & ors (1988) 12 NSWLR 270 Williams v R (2000) 119 ACrimR 490 Wilson v DPP (2002) NSWSC 935
PARTIES :	Eliza Georgia Dodd (Plaintiff) Director of Public Prosecutions (First Defendant) Michael Joseph Mahony (Second Defendant)
FILE NUMBER(S):	SC 11423/03
COUNSEL:	M Phelps (Plaintiff) D Frearson (First Defendant)
SOLICITORS:	Kings Lawyers (Plaintiff) C K Smith (First Defendant) S E O'Connor (Second Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	W2209/345/03
LOWER COURT JUDICIAL OFFICER :	Mahoney LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

Tuesday 21 October 2003

11423/03 ELIZA GEORGIA DODD v
DIRECTOR OF PUBLIC PROSECUTIONS & 1 OR
JUDGMENT

1 His HONOUR: This was an appeal by way of summons from a decision by the learned Magistrate, the second defendant, who filed a submitting appearance, seeking an order granting leave to Eliza Georgia Dodd, the plaintiff, to appeal against the decision of the second defendant in respect of a prosecution commenced by the first defendant, the Director of Public Prosecutions (“the DPP”) against the plaintiff.

2 The orders sought, after amendment, were:

1. An order under s104(3) of the Justices Act 1902 granting leave to the plaintiff to appeal against the decision of the second defendant dated 12 May 2003;

2. A declaration that the second defendant erred in law in admitting into evidence in committal proceedings against the plaintiff an ERISP tape and transcript between Senior Constable Brett Barnes and Nathan John Mearns dated 24 August 2001;

3. An order that the matter be remitted to the second defendant to be dealt with according to law;

4. An order as to costs.

Facts

3 The committal proceedings were brought against the plaintiff consequent upon a search of a flat at North Richmond on 24 August 2001, the premises being occupied by the plaintiff, her de facto husband Nathan Mearns and a friend of both, one Wilton. The lease was in the name of Mearns and Wilton.

4 The committal proceedings commenced on 24 March 2003 at the Penrith Local Court wherein it was alleged against the plaintiff two charges of Deemed Supply of a Prohibited Drug:

i. That on 24 August 2001 in Richmond in the state of NSW the plaintiff did supply a prohibited drug, being 69.53 grams of methylamphetamine; and

ii. That on that same day at the same location the plaintiff supplied a prohibited drug, lysergide, being 35 doses.

5 The plaintiff was charged on 28 August 2001. Mearns was also charged with offences relating to the possession of drugs and other items found on the premises, but these charges were withdrawn by the DPP in September 2002. Mearns had participated in an ERISP with police on the day of the search of premises, the plaintiff having declined to participate in an interview.

6 In the committal proceedings the DPP sought to call evidence from Mearns who objected under s18 of the Evidence Act 1995 (“the Act”) to giving evidence. The learned Magistrate upheld that claim and did not require Mearns to give evidence.

7 Section 18 of the Act relates to criminal proceedings and permits a spouse or de facto spouse to object to giving evidence or evidence of a communication between the person and the defendant as a witness for the prosecution. The section provides that the person must not be required to give evidence if the court makes a finding that harm would or might be caused to the relationship between the person and the defendant if the person gives the evidence and the nature and harm outweighs the desirability of the evidence being given. It then sets out a series of criteria to be taken into account, including the nature and gravity of the offence, the substance and importance of the evidence to be given, the nature of the relationship and whether the evidence was of a confidential nature.

8 The essential parts of the prohibited drugs were located in a handbag found under the bed in the main bedroom occupied by the plaintiff and Mearns, the latter identifying that the plaintiff owned the handbag. This evidence was supported by Wilton.

9 After the determination that Mearns did not have to give evidence, the DPP then sought to have admitted a transcript of the ERISP, in which Mearns participated, under s65 of the Act, on the basis that the maker of the ERISP was “unavailable “.

10 At the March hearing, notice provisions as required by s65 of the Act had not been complied with, nor had the segments of the interview, on which counsel was to rely against the plaintiff, been removed. Proceedings were adjourned to 12 May 2003, at which time two issues were canvassed, first, the application of Pt 7A of the now repealed Justices Act 1902 and the application of s65(2)(b) and (c) of the Act. The learned Magistrate admitted the edited ERISP of Mearns as an exception to the hearsay rule on the basis of the unavailability of the witness Mearns as a result of his Worship’s earlier ruling under s18 of the Act.

11 Section 65 is relevantly in the following terms:

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 was:

(a) made under a duty to make that representation or to make representations of that kind, or
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) made in circumstances that make it highly probable that the representation is reliable, or
(d) against the interests of the person who made it at the time it was made.
(3) …

12 The learned Magistrate, in admitting the edited ERISP of Mearns, relied on R v Suteski (2002) NSWCCA 509. His Worship took into account that having regard to the circumstances in which the statement was made, it being the same day as the video search was conducted, the ERISP was largely a recapitulation of the matters evidenced in the video search which had been admitted in evidence, in which video the witness was invited to make comments.

13 His Worship found that Mearns had been appropriately cautioned and had an acute awareness of his right not to reply, on occasions, and, whilst the interview was certainly not a spontaneous admission of what had happened, it was certainly voluntary.

14 His Worship found that s65(2)(d) of the Act had not been made out as not being a statement against interest. With respect, it is difficult to disagree with the learned Magistrate as no statement sought to be admitted could clearly be characterised as against Mearns’ interest. His Worship found that, in the circumstances under which the interview was conducted and the manner of the answering of the questions, the evidence produced was reliable evidence and that it was made shortly after the asserted fact and in circumstances that make it unlikely that the representation is a fabrication. This did not mean that Mearns was incapable of fabricating. His Worship’s ruling simply related to the evidence that was tendered.

15 The first issue to be resolved is as to whether the ruling on admissibility by the learned Magistrate was an “order” to which s104(3) of the Justices Act applies. Counsel for the plaintiff submitted that it was such an order and relied on the ruling in R v Lisoff (1999) NSWCCA 364 where the effect of the ruling was to prevent the Crown from making out its case.

16 A second question that arises in terms of the requirements of s104 of the Justices Act is as to whether the issue involves a question of law alone or a question of mixed law and fact, in that latter case, requiring the leave of the court.

17 The question of admission of the evidence being the decision made by the learned Magistrate was largely one of fact but clearly issues of law arose. It seems to me that this was therefore a matter requiring leave. Section 104 of the Act requires that an “order” be made to permit an appeal. It seems to me that a ruling on admissibility of evidence of this nature in committal proceedings is not such an order as to terminate the proceedings. The discretion which the Crown or the DPP can exercise in issuing an ex-officio indictment means that, even if a defendant is not committed, that matter can be taken before a court to determine guilt.

18 In any event, this court has a long standing practice reflecting reluctance to interfere in the course of committal proceedings (R v Colby (1995) 84 A Crim R 125; Wilson v DPP (2002) NSWSC 935), notwithstanding that it is submitted that the Court of Criminal Appeal in R v Ambrosoli (2002) NSWCCA 386 set out the approach to be taken under s65(2) of the Act, which was not followed by his Worship.

19 I cannot see that his Worship erred in the application of the relevant law in Ambrosoli or Williams v R (2000) 119 A Crim R 490.

20 I do not, in any event, see that the difference in circumstances between the current proceedings and those in Suteski, being that the principles in Suteski do not apply. It is, however, not necessary for the court to decide the issue of the exercise of his Worship’s discretion in the admission of the evidence, even though, as I have indicated, it appears to me to be correct. This court should not interfere in rulings on evidence which are not, in effect, final determinations.

21 Not only the ruling appealed from, but the ruling under s18 of the Act, may be reheard in any trial arising either out of the committal in these proceedings or in an ex-officio indictment if there be no committal. Both of those rulings will have the benefit of Pt 3.11 of the Act to assist the court in determining the questions that will then arise in determining issues of admissibility of evidence.

22 This court should not be used to examine rulings on evidence. Rulings on evidence may be revisited at any stage during a trial or committal proceedings and looked at with the advantage of any additional evidence that may subsequently be admitted. To determine a ruling on evidence at any particular stage of committal proceedings would be an unwarranted interference with the administrative process which is involved in committal proceedings.

23 Although it does not appear to me that a declaration under s75 of the Supreme Court Act 1970 is appropriate as the case is not “most exceptional” (Waterhouse v Gilmore & ors (1988) 12 NSWLR 270 at 267-277; Connor v Sankey (1976) 2 NSWLR 570) that determination does not have to be made in these proceedings.

24 I consider that the plaintiff having failed, that there should be an order against her as to costs.

25 As these proceedings seem to me to be an inappropriate use of s104 of the Justices Act I make the following orders:

i. That leave to appeal be granted;

ii. That the appeal be dismissed; and

iii. That the plaintiff pay the defendant’s costs of the proceedings.

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Last Modified: 10/28/2003