Doolan v The Queen

Case [2013] NSWCCA 145

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Doolan v R [2013] NSWCCA 145
Hearing dates:27 March 2013
Decision date: 03 July 2013
Before: Emmett JA at [1];
Simpson J at [65];
Latham J at [107]
Decision:

Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal - conviction for offence of supplying prohibited drug - evidence - admission of inconsistent statements by appellant about stolen motor vehicle - relevance - where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found

CRIMINAL LAW - appeal - conviction for offence of supplying prohibited drug - evidence - admission - warning to jury - s 137 Evidence Act 1995 - whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence
Legislation Cited: Criminal Appeal Act 1912 ss 5, 6
Crimes (Sentencing Procedure) Act 1999 s 12
Drug Misuse and Trafficking Act 1985 ss 3, 25(1), 29
Evidence Act 1995 ss 55, 56, 60, 66A, 97, 101, 101A, 102, 103, 104, 136, 137, Pts 3.4, 3.6, 3.7, 3.8
Cases Cited: Festa v The Queen [2001] HCA 72; 208 CLR 593
R v Yates [2002] NSWCCA 520
R v Shamouil [2006] NSWCCA 112; (2006)
66 NSWLR 228
Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
R v Cook [2004] NSWCCA 52
Filippetti v R (1978) 13 A Crim R 335
R v Anderson (NSWCCA, 15 December 1983, unreported)
R v Bazley (NSWCCA, 23 March 1989, unreported)
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Category:Principal judgment
Parties: William Patrick Doolan (Appellant)
Regina (Respondent)
Representation: Counsel:
I Nash (Appellant)
R Herps (Respondent)
Solicitors:
Bolt Findlay Solicitors (Appellant)
Director of Public Prosecutions (Respondent)
File Number(s):CCA 2010/150588
 Decision under appeal 
Citation:
[2012] NSWSC 455
Date of Decision:
2011-11-30 00:00:00
Before:
Black DCJ
File Number(s):
DC 10/150588

Judgment

  1. EMMETT JA: This appeal is concerned with the admissibility, in a prosecution for the offence of supplying a prohibited drug, of certain statements made by the appellant, Mr William Doolan. Mr Doolan made the statements in connection with enquiries conducted by the police concerning a stolen motor vehicle. The appellant was convicted after a trial before a District Court judge and jury. Before the trial, the trial judge, following a hearing on the voir dire, ruled, over the objection of the appellant, that the statements would be admitted into evidence. The appellant now appeals from the conviction on the ground that the trial judge erred in admitting the statements into evidence.

The Factual Background

  1. On 17 January 2010, police officers at Casino Police Station were called to investigate a Holden utility vehicle (the utility) that was parked in a public road in Casino. A Senior Constable Opryszko observed that the windows of the utility were down. Subsequent investigations indicated that the utility was registered in the name of the…

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AGLC
Doolan v The Queen [2013] NSWCCA 145
Case
[2013] NSWCCA 145
Decision Date

CaseChat Overview and Summary

Doolan appealed against a conviction for supplying a prohibited drug. The Crown's evidence was that the appellant was in a room with another person, Colin Stevens. A search of the room found cocaine. The appellant's evidence was that he was in the room with a person, Stephen Graham, who had taken the cocaine from the room. The appellant's statement to police on 22 January 2010 that Mr Stevens was also in the room was inconsistent with his statements on 17 and 18 January 2010 that Mr Stevens had nothing to do with the cocaine or the vehicle. The appellant was convicted. The appellant's appeal was against his conviction and sentence. The issues for the court were whether the trial judge erred in admitting evidence of the appellant's inconsistent statements and whether the admission of that evidence was unfair to the appellant under s 137 of the Evidence Act. The court found that the evidence of the appellant's inconsistent statements was relevant because it affected the credibility of the appellant's evidence. The evidence was not excluded by s 102 of the Evidence Act because it was relevant to the credibility of the appellant. The court found that the evidence was not excluded by s 137 of the Evidence Act. The probative value of the evidence substantially outweighed its prejudicial effect. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Under s 55 of the Evidence Act 1995 (the Evidence Act), the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. Under s 56, except as otherwise provided, evidence that is relevant in a proceeding is admissible in the proceeding and evidence that is not relevant in the proceeding is not admissible. Under s 97 of the Evidence Act, evidence of a person's character, reputation or conduct is inadmissible, if the evidence is sought to be adduced to prove that the person has, or had, a tendency to act in a particular way, unless notice is given and the evidence, either alone or together with other evidence to be adduced, has significant probative value. Section 101 prohibits the admission of tendency evidence unless its probative value substantially outweighs any prejudicial effect that the evidence may have. Under s 101A of the Evidence Act, evidence that is only relevant because it affects the assessment of the credibility of a witness or person is credibility evidence. Under s 102, credibility evidence is inadmissible unless one of the identified exceptions applies. One such exception is provided by s 103, under which credibility evidence may be adduced in cross-examination if the evidence could substantially affect the assessment of the credibility of a witness. Under s 104 of the Evidence Act, an accused may not be cross-examined about a matter relevant to the assessment of his or her credit without the leave of the court. Such leave must not be granted unless certain conditions are met. One condition is that the accused has adduced evidence that tends to prove that a Crown witness has a tendency to be untruthful and that evidence was relevant solely, or mainly, to that witness's credit. The appellant contends that the evidence that was critical to the trial judge's determination was the inconsistency between the person nominated by the appellant on 17 January 2010 and 18 January 2010 as being the person responsible for the cars, namely Stephen Graham, and the person nominated in his statement of 22 January 2010 as being the person responsible for the cars as well as the drugs, namely Colin Stevens. The appellant contended that the trial judge had concluded that the falsity of nominating Stephen Graham was relevant as to who it was that was in the room, if anybody, apart from the appellant. The appellant contended that, by saying that the jury would be directed that any issue about whether the jeep was stolen or not was immaterial, his Honour implicitly accepted that questions as to the ownership of the vehicles was not a fact in issue in the proceeding. The appellant contended that the sole relevance of the appellant's lies about Stephen Graham was as admissions that went to his credibility in his account of who possessed the drugs. Thus, it was contended, its relevance was as a statement expressing consciousness of guilt.

Decision

Reasons for decision

LATHAM J

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Ratio Decidendi

Legal Principle Established

Established by: LATHAM J

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