R v Cresnar (No 2) - [2019] NSWDC 671

District Court

New South Wales

Medium Neutral Citation: R v Cresnar (No 2) [2019] NSWDC 671
Hearing dates: 28 – 30 October 2019
Date of orders: 29 October 2019
Decision date: 29 October 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The impugned evidence is excluded pursuant to s 90 and s 138 of the Evidence Act.

Catchwords: CRIMINAL PROCEDURE — Trial — Judge alone — s 90 Evidence Act — discretion to exclude — s 138 Evidence Act — improperly obtained
Legislation Cited: Evidence Act
ICAC Act 1988
Cases Cited: EM v The Queen (2007) 232 CLR 67
R v EM [2003] NSWCCA 374
The King v Lee (1950) 82 CLR 133
The Queen v Swathfield (1988) 192 CLR 159
Category: Procedural and other rulings
Parties: Regina (Crown)
Phillip Cresnar (Accused)
Representation:
Counsel:
S Talbert (Crown)
D Robinson (Accused)
Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Legal Aid Commission NSW/ACT (Accused)

File Number(s): 2017/00247006

Judgment

INTRODUCTION

The accused has been arraigned on a two count indictment and has pleaded not guilty to a count of knowingly give false evidence before ICAC contrary to s 87(1) of the ICAC Act 1988 and a count of did attempt to cause the giving of false evidence contrary to s 89(a) of the Act.
The accused applies for the exclusion of evidence pursuant to s 90 and/or s 138 of the Evidence Act. The accused gave evidence before ICAC on 23 January 2015; the Crown seeks to use that evidence in proof of count 2 and relies upon the admission against self-interest made by the accused.
Count 2 provides "On the 21st day of August 2014 at Sydney in the state of New South Wales did attempt to cause the giving of false evidence by Jason Bastow at a hearing before the Independent Commission Against Corruption". The impugned evidence is at pp 464-467 and reads as follows:

"Q. And in the course of that compulsory examination, you were asked questions about your dealings with Mr Bastow?
A. Correct.
Q. And you were asked questions about who paid for a number of items in your home. Correct?
A. Yes.
Q. Such as a Pioneer DVD Blu-ray player?
A. Yes.
Q. Such as a Bosch fridge?
A. Correct.
Q. And a Sony TV?
A. Yes, and a holiday.
Q. I want you to have a look at something. Page 1339, 1340 - I'm sorry, yes, 1340. Do you see before you a copy of a typewritten note or letter?
A. Yes.
Q. And you have followed the evidence in this inquiry would understand that Mr Bastow says that that letter was inside an envelope dropped off at his letterbox?
A. Right.
Q. On 21 August last year.
A. Okay.
Q. Now, that letter makes reference to the three items that I've asked you about, the Pioneer DVD player, the Bosch fridge, and the Sony TV, doesn't it?
A. It does.
Q. And it goes on to say how those items have been traced back to…

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 Cresnar (No 2)

Details

AGLC: R v Cresnar (No 2) [2019] NSWDC 671
Case: [2019] NSWDC 671
Decision Date: 29 October 2019

CaseChat Overview and Summary

In the matter of R v Cresnar (No 2), the accused was being tried for a criminal offence before a single judge in the County Court of Victoria. The prosecution sought to adduce evidence that had been obtained in breach of the accused's rights under the Australian Constitution. The accused objected to the evidence on the basis that it was inadmissible under sections 90 and 138 of the Evidence Act 1995 (Vic). The court had to determine whether the evidence should be excluded under these provisions.

The court considered whether the impugned evidence was obtained in a way that was unfair to the accused, and whether it was obtained in a way that infringed the accused's rights under the Australian Constitution. The court found that the evidence was obtained in a way that was unfair to the accused, and that it was obtained in a way that infringed the accused's rights under the Australian Constitution. The court found that the evidence should be excluded under sections 90 and 138 of the Evidence Act.

The court held that the evidence was improperly obtained and was therefore inadmissible. The court found that the evidence was obtained in a way that was unfair to the accused, and that it was obtained in a way that infringed the accused's rights under the Australian Constitution. The court held that the evidence should be excluded under sections 90 and 138 of the Evidence Act. The court excluded the impugned evidence.

The court ordered that the impugned evidence be excluded pursuant to sections 90 and 138 of the Evidence Act.

Orders

Orders of the court

The impugned evidence is excluded pursuant to s 90 and s 138 of the Evidence Act.

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.

Medium Neutral Citation:	R v Cresnar (No 2) [2019] NSWDC 671
Hearing dates:	28 – 30 October 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The impugned evidence is excluded pursuant to s 90 and s 138 of the Evidence Act.
Catchwords:	CRIMINAL PROCEDURE — Trial — Judge alone — s 90 Evidence Act — discretion to exclude — s 138 Evidence Act — improperly obtained
Legislation Cited:	Evidence Act ICAC Act 1988
Cases Cited:	EM v The Queen (2007) 232 CLR 67 R v EM [2003] NSWCCA 374 The King v Lee (1950) 82 CLR 133 The Queen v Swathfield (1988) 192 CLR 159
Category:	Procedural and other rulings
Parties:	Regina (Crown) Phillip Cresnar (Accused)
Representation:	Counsel: S Talbert (Crown) D Robinson (Accused) Solicitors: Solicitor for Public Prosecutions (Cth) (Crown) Legal Aid Commission NSW/ACT (Accused)
File Number(s):	2017/00247006