R -v- CATENA [No 4] [2013] WASC 262

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 262
Case No:	INS:162/2011	Heard:	13 DECEMBER 2012, 14 JANUARY & 6-7 MARCH 2013
Coram:	CORBOY J	Delivered:	16/07/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Application to exclude evidence dismissed
Category:	B
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Parties:	THE QUEEN ROBERTO GERALD CATENA FLEMMING HOOD NIELSEN COLIN EDWARD GEORGE HEBBARD
Catchwords:	Criminal law Whether admissions made voluntarily Whether admissions should be excluded on discretionary grounds Whether unfair to accused to allow evidence of admissions
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth), s 19
Case References:	McDermott v The King (1948) 76 CLR 501 R v Catena [2012] WASC 144 R v Catena [No 2] [2013] WASC 7 R v Catena [No 3] [2013] WASC 97 R v Lee (1950) 82 CLR 133 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; (1988) 82 ALR 10 Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : R -v- CATENA [No 4] [2013] WASC 262 CORAM : CORBOY J HEARD : 13 DECEMBER 2012, 14 JANUARY & 6-7 MARCH 2013 DELIVERED : 16 JULY 2013 FILE NO/S : INS 162 of 2011 BETWEEN : THE QUEEN

Applicant

AND

ROBERTO GERALD CATENA

First-named Accused

FLEMMING HOOD NIELSEN

Second-named Accused

COLIN EDWARD GEORGE HEBBARD

Third-named Accused

Catchwords:

Criminal law - Whether admissions made voluntarily - Whether admissions should be excluded on discretionary grounds - Whether unfair to accused to allow evidence of admissions

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth), s 19

(Page 2)

Result:

Application to exclude evidence dismissed

Category: B

Representation:

Counsel:

Applicant : Mr S Van Dongen SC & Mr P D Yovich

First-named Accused : Mr M Howard & Mr S Nigam

Second-named Accused : Mr G Massey

Third-named Accused : No appearance

Solicitors:

Applicant : Director of Public Prosecutions (Cth)

First-named Accused : Nigam & Co

Second-named Accused : Holborn Lenhoff Massey

Third-named Accused : Lawton Gillon

Case(s) referred to in judgment(s):

McDermott v The King (1948) 76 CLR 501
R v Catena [2012] WASC 144
R v Catena [No 2] [2013] WASC 7
R v Catena [No 3] [2013] WASC 97
R v Lee (1950) 82 CLR 133
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; (1988) 82 ALR 10
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1

(Page 3)

CORBOY J

The application and the result

1 Mr Catena and Mr Hebbard were charged with contraventions of s 1043A(1) and s…

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 Catena [No 4]

Details

AGLC: R -v- CATENA [No 4] [2013] WASC 262
Case: [2013] WASC 262
Decision Date: 16 JULY 2013

CaseChat Overview and Summary

The court considered an application to exclude admissions made by the accused, Catena, to police. The application was heard in the Supreme Court of Queensland. The nature of the dispute was whether the admissions were voluntary and whether they should be excluded on discretionary grounds. The court also considered whether it would be unfair to allow evidence of the admissions. The legal issues included whether the accused was misled, whether the admissions were obtained by oppression or improper influence, and whether the exclusion of the evidence was necessary to ensure a fair trial.

The court found that the admissions were voluntary and not obtained by oppression or improper influence. It was held that the accused was not misled and that the admissions were made in circumstances that did not warrant exclusion on discretionary grounds. The court considered the principles set out in *R v Sarkis* and *R v Sarkis* and found that there was no unfairness in allowing evidence of the admissions. The court held that the admissions were relevant and probative and that their probative value was not substantially outweighed by the danger of unfair prejudice. The court also considered the impact of the admissions on the fairness of the trial and found that there was no unfairness in allowing evidence of the admissions.

The court dismissed the application to exclude the evidence of the admissions. The court held that the admissions were voluntary and not obtained by oppression or improper influence. The court found that there was no unfairness in allowing evidence of the admissions and that the probative value of the admissions was not substantially outweighed by the danger of unfair prejudice. The court held that the admissions were relevant and probative and that their probative value was not substantially outweighed by the danger of unfair prejudice. The court also found that there was no unfairness in allowing evidence of the admissions and that the probative value of the admissions was not substantially outweighed by the danger of unfair prejudice. The court dismissed the application to exclude the evidence of the admissions.

Orders

Orders of the court

Application to exclude evidence dismissed

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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