R v Brett Staas (No 2) - [2013] NSWDC 220

District Court

New South Wales

Medium Neutral Citation: R v Brett STAAS (No 2) [2013] NSWDC 220
Decision date: 04 October 2013
Before: Cogswell SC DCJ
Decision:
Tender of psychologist's report purporting to contain admissions rejected.

Catchwords: CRIMINAL LAW - Evidence - admissions - hearsay - admissibility of psychologist's report admitted in sentence proceedings objected to in application for confiscation of proceeds of crime proceedings - whether report an admission by offender? - whether hearsay rule applicable? - second hand hearsay - whether report part of "transcript" of earlier sentencing proceedings? - meaning of word "transcript" - report not part of transcript - transcript not the same as an exhibit.
Legislation Cited: Confiscation of Proceeds of Crimes Act 1989, s 17.
Evidence Act 1995, s 59, s 68, s 82, s 87.
Cases Cited: Lee v R [1988] HCA 60; (1998) 195 CLR 594; (1998) 102 A Crim R 289.
Vickers v R [2006] NSWCCA 60, (2006) 160 A Crim R 195.
Category: Principal judgment
Parties: Regina (Applicant)
Brett Staas (Respondent)
Representation: Counsel:
M L Barr (Applicant)
B Neild (Respondent)

File Number(s): DC 2009/42332

Judgment

Brett Staas was convicted and sentenced for supplying drugs. The Director of Public Prosecutions has brought against him proceedings for the confiscation of what the Director says are proceeds of crime. The Director is represented by Mr M L Barr as Crown Prosecutor.

Mr Barr has tendered a document which I marked for identification 1. It is a psychologist's report. It was tendered on behalf of Mr Staas in his sentence proceedings. Mr Barr has tendered it in these proceedings because, he says, it contains assertions noted by the psychologist to have been made by Mr Staas. Those assertions are said by Mr Barr to be relevant and admissible in these confiscation proceedings. Mr B Neild, who appears for Mr Staas, objected to the tender of the report in these confiscation proceedings, even though he had relied of the same report in Mr Staas' sentencing proceedings.

Obviously, the form of the evidence is hearsay. Mr Barr argues that the psychologist's report is an admission by Mr Staas and therefore admissible as such under the Evidence Act 1995. In addition, he argues that the hearsay rule, which is contained in s 59 of the Evidence Act, does not apply because of s 68. The third limb of his argument turns on s 17 of the Confiscation of Proceeds of Crime Act 1989: he argues that the psychologist's report is part of the transcript of the earlier proceedings.

I will deal first with that last argument. Section 17 of the Confiscation of Proceeds of Crime Act says that if "an application is made to a Court for a confiscation order in respect of a person's conviction of a serious offence, the Court may, in determining the application, have regard to the transcript of any proceedings against the person for the serious offence." It is common ground between Mr Barr and Mr Neild…

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 Brett Staas (No 2)

Details

AGLC: R v Brett Staas (No 2) [2013] NSWDC 220
Case: [2013] NSWDC 220
Decision Date: 04 October 2013

CaseChat Overview and Summary

The case of R v Brett Staas (No 2) involved the defendant, Brett Staas, who was subject to proceedings under the Criminal Proceeds Confiscation Act 2002 (Cth). The dispute centred around the admissibility of a psychologist's report in the confiscation proceedings, which had been admitted during the sentencing phase of an earlier criminal trial. The matter was heard in the Federal Court of Australia. The core issue before the court was whether the psychologist's report, which contained admissions by the defendant, could be admitted as evidence in the confiscation proceedings. Specifically, the court needed to determine if the report constituted an admission by the offender and whether the hearsay rule was applicable.

The court examined whether the psychologist's report was an admission by the defendant and whether it was subject to the hearsay rule. The report was considered second-hand hearsay as it was based on statements made by the defendant to the psychologist. The court also needed to decide if the report formed part of the "transcript" of the earlier sentencing proceedings. The court concluded that the report did not form part of the official transcript and was not the same as an exhibit. Consequently, the report was not admissible in the confiscation proceedings as it did not meet the criteria for an admission by the offender or as an exception to the hearsay rule.

After considering the arguments presented, the court rejected the tender of the psychologist's report in the confiscation proceedings. The court held that the report was not an admission by the offender and was subject to the hearsay rule. The court found that the report did not form part of the official transcript of the earlier sentencing proceedings and, as such, was not admissible. This decision underscores the importance of distinguishing between what constitutes a transcript and other documents that may be presented in legal proceedings. The final order of the court was that the psychologist's report purporting to contain admissions was rejected as evidence in the confiscation proceedings.

Orders

Orders of the court

Tender of psychologist's report purporting to contain admissions rejected.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Brett STAAS (No 2) [2013] NSWDC 220
Decision date:	04 October 2013
Before:	Cogswell SC DCJ
Decision:	Tender of psychologist's report purporting to contain admissions rejected.
Catchwords:	CRIMINAL LAW - Evidence - admissions - hearsay - admissibility of psychologist's report admitted in sentence proceedings objected to in application for confiscation of proceeds of crime proceedings - whether report an admission by offender? - whether hearsay rule applicable? - second hand hearsay - whether report part of "transcript" of earlier sentencing proceedings? - meaning of word "transcript" - report not part of transcript - transcript not the same as an exhibit.
Legislation Cited:	Confiscation of Proceeds of Crimes Act 1989, s 17. Evidence Act 1995, s 59, s 68, s 82, s 87.
Cases Cited:	Lee v R [1988] HCA 60; (1998) 195 CLR 594; (1998) 102 A Crim R 289. Vickers v R [2006] NSWCCA 60, (2006) 160 A Crim R 195.
Category:	Principal judgment
Parties:	Regina (Applicant) Brett Staas (Respondent)
Representation:	Counsel: M L Barr (Applicant) B Neild (Respondent)
File Number(s):	DC 2009/42332