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R v Adams (No 5)

R v Adams (No 5)

Case [2016] NSWSC 1563 4 November 2016

Admissibility of Evidence

Hearsay

Business Records Exception

Unfair Prejudice

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Adams (No 5) [2016] NSWSC 1563
Hearing dates: 14 October 2016
Date of orders: 17 October 2016
Decision date: 04 November 2016
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The representation in voir dire exhibit G is inadmissible and its tender is rejected.
(2) The tendered representation in voir dire exhibit H is admissible.
Catchwords: CRIMINAL – evidence – whether representations in voir dire exhibits are admissible – whether documents fall within the business records exception to the rule against hearsay – whether danger of unfair prejudice arising from hearsay evidence outweighs probative value – one representation in one document inadmissible – one representation in other document admissible
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 37
Evidence Act 1995 (NSW), ss 48, 55, 59, 69, 69(1), 69(1)(a), 69(1)(b), 69(2), 69(2)(b), 69(3), 69(3)(a), 69(3)(b), 69(5), 137, 142, 183
Cases Cited: Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (2008) 170 FCR 9; [2008] FCA 1038
BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2010] NSWSC 1304
IMM v The Queen (2016) 90 ALJR 529; [2016] HCA 14
Kang v Kwan [2002] NSWSC 1187
Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083
R v Adams [2015] NSWSC 1960
R v Adams (No 2) [2016] NSWSC 1359
R v Tai [2016] NSWCCA 207
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
Thaler v Amzalak (No 3) [2013] NSWSC 1315
Category: Procedural and other rulings
Parties: Regina
Robert John Adams
Representation:
Counsel:
M Hobart SC (Crown)
P Lange with C Parkin (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Murphy’s Lawyers (Accused)

File Number(s): 2013/382738

Judgment

Introduction

On 17 October 2016, I ruled that the tender of a representation contained in voir dire exhibit G (VD ex G) should be rejected. At the same time, I ruled that a representation contained in voir dire exhibit H (VD ex H) was admissible. I indicated on that occasion that I would give my reasons for those rulings later, a course with which both counsel were content. This judgment constitutes those reasons.

Background

The background to the rulings can be found in a number of earlier judgments of mine, perhaps the most useful of which is R v Adams (No 2) [2016] NSWSC 1359.
In a nutshell, the accused is standing trial by judge alone on a count of murder alleged to have been committed on 24 September 1983. The Crown case is that the accused choked or strangled Ms Mary Wallace (the deceased) with intent to force her to have sexual intercourse with him whilst they were alone together in his motor vehicle very early one morning, they having met at a wine bar earlier that night, and that he thereby committed murder pursuant to the doctrine of felony murder.
The foundational offence relied upon for the purposes of felony…

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 R v Adams (No 5)

Details

AGLC: R v Adams (No 5) [2016] NSWSC 1563
Case: [2016] NSWSC 1563
Decision Date: 04 November 2016

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Adams, against a conviction for obtaining a financial advantage by deception. The appeal centred on the admissibility of certain documentary evidence presented during the trial. The court of appeal was tasked with determining whether the representations contained within the exhibits were admissible, whether they qualified as business records under the exception to the hearsay rule, and if the prejudicial effect of the hearsay evidence outweighed its probative value.

The court examined the nature of the documentary evidence and whether the representations within them constituted hearsay. It considered whether these documents could be classified as business records and thus exempt from the hearsay rule. Additionally, the court had to balance the potential for unfair prejudice against the probative value of the evidence. After careful analysis, the court concluded that one of the documents contained inadmissible hearsay due to the high risk of unfair prejudice, while the other document was deemed admissible as it met the criteria for the business records exception and its probative value was not substantially outweighed by the danger of unfair prejudice.

The court found that the representations in one document were inadmissible because the prejudicial effect significantly outweighed their probative value. However, the representations in the other document were held to be admissible as they qualified as business records under the exception to the hearsay rule. The court's decision hinged on a nuanced assessment of the potential for prejudice and the relevance of the evidence. The appeal was ultimately dismissed with respect to the admissibility of one document and upheld in relation to the other.

Orders