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 1988Cases 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 159Category: Procedural and other rulings Parties: Regina (Crown)
Phillip Cresnar (Accused)Representation: Counsel:
Solicitors:
S Talbert (Crown)
D Robinson (Accused)
Solicitor for Public Prosecutions (Cth) (Crown)
Legal Aid Commission NSW/ACT (Accused)
File Number(s): 2017/00247006
Judgment
INTRODUCTION
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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.
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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.
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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…
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- AGLC
- R v Cresnar (No 2) [2019] NSWDC 671
- Case
- [2019] NSWDC 671
- Decision Date
CaseChat Overview and Summary
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
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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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