R v Campbell (No 2) - [2019] ACTSC 105

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Campbell (No 2)
Citation:	[2019] ACTSC 105
Hearing Date:	26 – 28 November 2018.
DecisionDate:	28 November 2018.
Reasons Date:	30 April 2019.
Before:	Loukas-Karlsson J
Decision:	See [46].
Catchwords:	EVIDENCE – Admissibility and Relevancy – Witnesses – hearsay – exception if maker unavailable - s 65(2)(b) and (d) of the Evidence Act 2011 (ACT) – reliability of representations – representations of an accomplice
Legislation Cited:	Evidence Act 2011 (ACT) ss 65, 67, 165
Cases Cited:	Lai v R; Nguyen v R [2017] NSWCCA 263 Munro v The Queen [2014] ACTCA 11 R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 Sio v The Queen [2016] HCA 32; 259 CLR 47 Tasmania v Dolega [2016] TASSC 65; 26 Tas R 312 Walton v The Queen [1989] HCA 9; 166 CLR 283 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490
Parties:	The Queen (Crown) Aaron Kenneth Campbell (Accused)
Representation:	Counsel Mr M Fernandez (Crown) Mr J Moffett (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused)
File Number:	SCC 124 of 2018

Loukas-Karlsson J

Introduction

Aaron Kenneth Campbell (the accused) has pleaded not guilty to one count of contravening a family violence order, one count of unauthorised use of a prohibited weapon, one count of attempted aggravated robbery, one count of assault occasioning actual bodily harm, and one count of wounding.

The offences relate to an incident at the car park of a KFC outlet in Fyshwick. In short summary, Mr Carpenter, who was attempting to purchase methylamphetamine on behalf of his housemate Ms Hehir, organised a drug deal with Ms Collier. Mr Carpenter and Ms Hehir drove to the KFC with a friend, Mr Beaver, and his father. On the Crown’s case, Ms Collier drove with Mr Holz and the accused to the drug deal. On arriving at the KFC, the Crown alleges that Ms Collier let Mr Holz and the accused out of the car.

As Ms Hehir approached the vehicle Ms Collier was in, a man jumped out from the bushes and attempted to push her into the car, and tasered her neck. The man then attempted to take her handbag, dragging Ms Hehir along the ground in the process, occasioning actual bodily harm.

Mr Beaver, seeing that Ms Hehir was in difficulty, attempted to assist. When he got close to the man, he was stabbed in the left abdomen. The man then ran from the scene. On the Crown’s case, Mr Holz did not participate in the offences.

The prosecution intended to call Mr Holz as a witness at the trial. A subpoena to Mr Holz was issued, but was unable to be served, as Mr Holz’s whereabouts had become unknown.

On 22 November 2018, the prosecution lodged a notice of intention to adduce evidence of a previous representation. On 23 November 2018, the prosecution lodged an application and an accompanying affidavit of Mr…

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 Campbell (No 2)

Details

AGLC: R v Campbell (No 2) [2019] ACTSC 105
Case: [2019] ACTSC 105
Decision Date: 28 November 2018.

CaseChat Overview and Summary

The case of R v Campbell (No 2) involved the respondents, the Commissioner of the Australian Federal Police and another, who sought to admit into evidence a recording of a conversation between the accused and an accomplice. The matter was heard in the Supreme Court of the Australian Capital Territory. The respondents argued that the recording was admissible under section 65(2)(b) and (d) of the Evidence Act 2011 (ACT), as the maker of the recording was unavailable to testify. The primary legal issue before the court was whether the hearsay exception applied and if the recording was reliable enough to be admitted as evidence.

The court examined the nature of the recording and the circumstances surrounding its creation. It considered whether the recording was made in the ordinary course of business and if it was reliable due to the context and content of the conversation. The court also assessed the reliability of the representations made in the recording, given that one of the participants was an accomplice. The court found that the recording was made in the ordinary course of business and was reliable based on the context and content. It held that the hearsay exception applied, and the recording was admissible as evidence.

As a result, the court allowed the respondents to introduce the recording as evidence. The court found that the recording was reliable and relevant to the case, and its admission would not unfairly prejudice the accused. The court's decision was based on the specific facts and circumstances of the case, and it did not set a broad precedent for the admissibility of recordings made by accomplices. The court's order allowed the respondents to use the recording as evidence in the trial.

Orders

Orders of the court

See [46].

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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