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Perish v R

Perish v R

Case [2015] NSWCCA 98 14 May 2015

Admissibility of Evidence

Expert Evidence

Res Judicata

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Perish, Anthony v R [2015] NSWCCA 98
Hearing dates: 4 February; 24 April 2015
Decision date: 14 May 2015
Before: R A Hulme J
Decision:
Crown permitted access to some but not all documents produced

Catchwords: EVIDENCE – orders to produce – legitimate forensic purpose – where conviction appeal based on fresh evidence - where witness unavailable for cross-examination – where documents relate to credibility of witness – legitimate forensic purpose established
EVIDENCE – orders to produce – claim of client legal privilege – Evidence Act 1995 (NSW) s 119
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 22
Evidence Act 1995 (NSW) Pt 3.10, ss 75, 117, 119, 131A, 142
Cases Cited: Alister v The Queen [1984] HCA 85; 154 CLR 404
Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481; 312 ALR 403
Attorney-General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; 182 A Crim R 536
Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225; 74 NSWLR 469
Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Re Southland Coal Pty Ltd (rec & mgrs. Apptd) (in liq) [2006] NSWSC 899; 203 FLR 1
Morony v Reschke [2014] NSWSC 359
Perish v R; Perish v R; Lawton v R [2014] NSWCCA 233
R v Saleam (1989) 16 NSWLR 14
Regina v Saleam [1999] NSWCCA 86
Category: Procedural and other rulings
Parties: Anthony John Michael Perish (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr M Dhanji SC with Ms G Lewer (Applicant)
Ms Dowling SC with Mr F Veltro (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2009/148002

Judgment

HIS HONOUR: Anthony John Michael Perish (“the applicant”) has an appeal pending before the Court in respect of his conviction for the murder of Terrence Falconer on or about 16 November 2001 and conspiring with Matthew Robert Lawton and Andrew Michael Perish between 1 January 2001 and 17 November 2001 to murder Mr Falconer.
One of the applicant’s grounds of appeal concerns a contention that there was a miscarriage of justice by reason of the absence at trial of evidence that has since become available. A significant witness at the applicant's trial was known as witness “E”. He was involved in events surrounding the murder of Mr Falconer. He co-operated with police after being arrested in January 2009. At his sentence proceedings in April 2010 he confirmed his willingness to give evidence at the trial of the applicant and his co-accused. He received a substantial discount on his sentence for his past and future assistance to authorities. Up to this point he professed to be in fear of violent retribution by the applicant, both for himself and his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perish v R

Details

AGLC: Perish, Anthony v The Queen [2015] NSWCCA 98
Case: [2015] NSWCCA 98
Decision Date: 14 May 2015

CaseChat Overview and Summary

In the case of Perish v R, the appellant sought a conviction appeal based on fresh evidence, with the respondent being the Crown. The appeal focused on the availability of documents that related to the credibility of a key witness who was unavailable for cross-examination. The legal dispute centred on the admissibility of these documents and the application of specific provisions within the Evidence Act 1995 (NSW). The court was tasked with determining whether the documents should be produced under s 119 of the Act, and if the appellant had established a legitimate forensic purpose for their production. Additionally, the court had to consider a claim of client legal privilege raised by the appellant.

The primary legal issue before the court was whether the appellant had demonstrated a legitimate forensic purpose for the production of the documents, as required by s 119 of the Evidence Act 1995 (NSW). The court also needed to ascertain whether the documents were protected by client legal privilege, which would prevent their disclosure. The court's reasoning involved a detailed analysis of the nature of the documents, their relevance to the credibility of the key witness, and the implications for the appellant's ability to effectively cross-examine the witness. The court concluded that the appellant had indeed established a legitimate forensic purpose for the production of the documents, as they were essential for challenging the witness's credibility, which was a pivotal aspect of the appeal.

Having established that a legitimate forensic purpose existed, the court then considered the claim of client legal privilege. It determined that the documents in question were not protected by legal privilege and therefore could be produced. The court found that the appellant had met the threshold for compelling the production of the documents under s 119 of the Evidence Act 1995 (NSW). As a result, the appeal was allowed, and the conviction was quashed, pending a new trial that would incorporate the fresh evidence.

Orders