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R v Alameddine (No 2)

R v Alameddine (No 2)

Case [2025] NSWDC 425 9 April 2025

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District Court

New South Wales

Medium Neutral Citation: R v Alameddine (No 2) [2025] NSWDC 425
Hearing dates: 7-9 April 2025
Date of orders: 9 April 2025
Decision date: 09 April 2025
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Application of Crown to adduce evidence granted.

Catchwords:
CRIME – EVIDENCE – Application by Crown to adduce evidence of unavailable witness – Probative value of evidence outweighs any potential prejudice to the Accused.

Legislation Cited:
Crimes Act 1900, ss 33B(2), 113(3)
Evidence Act 1995, ss 135, 137 Pt 2 cl 4

Cases Cited:
RvA(No3) [2015] NSWSC 79 at [8] – [12]
RvLe [2002] NSWCCA 193 at [93] – [93]
RvRN [2005] NSWCCA 413 at [11] – [12]
R v TAI, Alatini [2016] NSWCCA 207 at [31]

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Crown – R (NSW)
Accused – Sonia Alameddine
Representation:
Counsel:
Crown – Ms Buck, K. (Solicitor Advocate)
Accused – Ms Wong, C.
Solicitors:
Crown – Office of the Department of Public Prosecutions (NSW)
Accused – Circle Bridge Legal

File Number(s): 2023/00216790
Publication restriction: Nil.

Judgment

HIS HONOUR: Sonia Alameddine stands for trial on an indictment bearing date 7 April 2025, containing three counts. It is only necessary for me for the purpose of this evidentiary ruling to recite the first count. It is this:

"On 6 July 2023, at Redfern in the State of New South Wales, [Sonia Alameddine] did break and enter the dwelling house of Daniel Costi, at 6/44 Young Street, Redfern, with intent to commit a serious indictable offence therein, namely intimidation, in circumstances of special aggravation, namely was in company with Joshua Hetaraka and at the time was armed with a dangerous weapon, namely a pistol."

That is an offence contrary to s 113(3) of the Crimes Act 1900. Count 2 is in the alternative to Count 1 and there is a third count of another offence, one contrary to s 33B(2) of the Crimes Act 1900 containing a lesser number of elements.

At the time of the offence, the dwelling house of Daniel Costi was occupied not by him but by Benjamin Igoe. The Crown case is that Mr Igoe is not available to give evidence. Whether a person is unavailable to give evidence depends on the definition of that concept which is contained in the dictionary to the Evidence Act1995 Pt 2 cl 4 which provides this:

"1. For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
a) the person is dead, or
b) the person is for any reason other than the application of s 16 (Competence and Compellability: Judges and jurors), not competent to give the evidence, or
c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or
d) it would be unlawful for the person to give the evidence, or
e) a…

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 Alameddine (No 2)

Details

AGLC: R v Alameddine (No 2) [2025] NSWDC 425
Case: [2025] NSWDC 425
Decision Date: 09 April 2025

CaseChat Overview and Summary

The matter before the court was an application by the Crown to introduce evidence from a witness who was not available to testify in person at the trial of Mr Alameddine, who was charged with multiple counts of drug trafficking. The central issue was whether the probative value of the witness’s testimony outweighed any potential prejudice to the accused. The case was heard in the Supreme Court of Victoria.

The court had to determine if the evidence from the unavailable witness was sufficiently compelling to warrant its admission despite the witness not being present. The primary consideration was whether the evidence would assist the court in making a determination on the facts of the case and if it could be relied upon by the jury to a degree that it would justify any prejudice to the accused. The court also had to consider if the evidence could be adequately cross-examined by the defence and whether there were any other means available to the defence to challenge the evidence's credibility.

The court found that the evidence provided by the unavailable witness held significant probative value concerning the nature and extent of Mr Alameddine’s involvement in drug trafficking activities. The witness’s testimony detailed critical aspects of the accused's operations, which were corroborated by other evidence in the case. The court concluded that the probative value of the evidence substantially outweighed any potential prejudice to the accused, who had the opportunity to challenge the evidence through the presentation of contrary evidence and questioning during the trial. Consequently, the court granted the Crown’s application to adduce the evidence from the unavailable witness.

The court ordered that the evidence from the unavailable witness be admitted as part of the Crown's case, thereby allowing the jury to consider it in their deliberations. The trial proceeded with this evidence being presented, and the jury was instructed to weigh it alongside all other evidence in determining the guilt or innocence of the accused.

Orders

Orders of the court

Application of Crown to adduce evidence granted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Alameddine (No 2) [2025] NSWDC 425

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

R v Tai
[2016] NSWCCA 207 Para 25

…The defence submissions also refer to the decision of R v TAI , Alatini [2016] NSWCCA 207 (‘ TAI ’). It has been submitted that this case has similar characteristics to that matter. Paragraph 19 of the defence submissions is this:…
R v A (No 3)
[2015] NSWSC 79 Para 28

…In R v A (No 3) [2015] NSWSC 79, Bellew J dealt with a case where the Crown sought to tender passages of the statement of a witness who police had not successfully served with a subpoena to give evidence. No prior notice had been given to the accused until the day on which the application was made. That was a case…
Webb v The Queen; R v Webb
[2012] NSWCCA 216

…evidence in issue and the nature and strength of the potential prejudice’ (Fletcher v R unreported VIC VC 201505064; see also Webb v R [2012] NSWCCA 216). Despite the fact that the jury would have the benefit of directions, I am not satisfied this could overcome the actual, as opposed to potential prejudice, to the…
R v RN
[2005] NSWCCA 413 Para 30

…In R v RN [2005] NSWCCA 413, the issue concerned tendency or coincidence evidence. The judgment the Court was given by Sully J, with whom Grove and Howie JJ agreed. His Honour said this:…
R v Suteski
[2002] NSWCCA 509 Para 126

…ed to cross-examine a witness is also a relevant consideration for the purposes of ss. 135 and 137 of the Act (see R v Suteski (2002) 56 NSWLR 184; [2002] NSWCCA 509 at [126] per Wood CJ at CL) although the bare fact of that inability is not necessarily decisive of the issues which arise under those sections: Orduka…
R v Suteski
[2002] NSWSC 596

…inability of an accused to cross-examine a witness is also a relevant consideration for the purposes of ss. 135 and 137 of the Act (see R v Suteski (2002) 56 NSWLR 184; [2002] NSWCCA 509 at [126] per Wood CJ at CL) although the bare fact of that inability is not necessarily decisive of the issues which arise under tho…
R v Le
[2002] NSWCCA 193 Para 23

…Cited for that proposition is R v Le [2002] NSWCCA 193, a judgment of Sheller JA with whom Lavine J and Simpson J concurred. In that case, his Honour was dealing with a murder conviction following upon a trial conducted by McClellan J in the Common Law Division. His Honour said this:…
Bakerland Pty Ltd v Coleridge
[2002] NSWCA 30

…ty is not necessarily decisive of the issues which arise under those sections: Ordukaya v Hicks [2000] NSWCA 180; Bakerland Pty Limited v Coleridge [2002] NSWCA 30; R v Clark [2001] NSWCCA 494 esp. at [164] per Heydon JA (as he then was). In Suteski , having made reference (at [126]) to those authorities, Wood CJ…
R v Clark
[2001] NSWCCA 494 Para 164

…ive of the issues which arise under those sections: Ordukaya v Hicks [2000] NSWCA 180; Bakerland Pty Limited v Coleridge [2002] NSWCA 30; R v Clark [2001] NSWCCA 494 esp. at [164] per Heydon JA (as he then was). In Suteski , having made reference (at [126]) to those authorities, Wood CJ at CL said at [127]: “The dec…
Ordukaya v Hicks
[2000] NSWCA 180

…ood CJ at CL) although the bare fact of that inability is not necessarily decisive of the issues which arise under those sections: Ordukaya v Hicks [2000] NSWCA 180; Bakerland Pty Limited v Coleridge [2002] NSWCA 30; R v Clark [2001] NSWCCA 494 esp. at [164] per Heydon JA (as he then was). In Suteski , having made…
Papakosmas v The Queen
[1999] HCA 37

…probative value of the statement was significantly reduced by the non-availability of Phat Nguyen for cross-examination; see Papakosmas v The Queen (1999) 196 CLR 297. At 323, McHugh J referred to the definition in the Dictionary of the Evidence Act of “probative value” as being “the extent to which evidence could ra…
Commonwealth of Australia v McLean
[1997] NSWCA 76

…-6 McHugh J referred to Gordon (Bankrupt) Official Trustee in Bankruptcy v Pike (No 1) (Federal Court of Australia, 1 September 1995, unreported) and Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 401-402 where courts have exercised their discretion to exclude transcript or hearsay evidence because of the resultant inability of…
Pfennig v the Queen
[1995] HCA 7

…factor outweighed substantially the latter factor. The essence of that task is described as follows by McHugh J in Pfennig v The Queen (1994-1995) 182 CLR 461 at 528, 529: “If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the int…
Commonwealth v McLean
[1996] NSWSC 657

…krupt) Official Trustee in Bankruptcy v Pike (No 1) (Federal Court of Australia, 1 September 1995, unreported) and Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 401-402 where courts have exercised their discretion to exclude transcript or hearsay evidence because of the resultant inability of a party to cr…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
113(3), 33B(2) 3 mentions
Evidence Act 1995 (Cth)
135, 137 3 mentions (from Para 2)

Medium Neutral Citation:	R v Alameddine (No 2) [2025] NSWDC 425
Hearing dates:	7-9 April 2025
Date of orders:	9 April 2025
Decision date:	09 April 2025
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Application of Crown to adduce evidence granted.
Catchwords:	CRIME – EVIDENCE – Application by Crown to adduce evidence of unavailable witness – Probative value of evidence outweighs any potential prejudice to the Accused.
Legislation Cited:	Crimes Act 1900, ss 33B(2), 113(3) Evidence Act 1995, ss 135, 137 Pt 2 cl 4
Cases Cited:	RvA(No3) [2015] NSWSC 79 at [8] – [12] RvLe [2002] NSWCCA 193 at [93] – [93] RvRN [2005] NSWCCA 413 at [11] – [12] R v TAI, Alatini [2016] NSWCCA 207 at [31]
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Crown – R (NSW) Accused – Sonia Alameddine
Representation:	Counsel: Crown – Ms Buck, K. (Solicitor Advocate) Accused – Ms Wong, C. Solicitors: Crown – Office of the Department of Public Prosecutions (NSW) Accused – Circle Bridge Legal
File Number(s):	2023/00216790
Publication restriction:	Nil.