R v Dillon (No 3) - [2019] NSWSC 1537

Supreme Court

New South Wales

Medium Neutral Citation: R v Dillon (No 3) [2019] NSWSC 1537
Hearing dates: 30 September; 1, 2, 8, 9, 10, 11, 12, 14, 22 October 2019
Date of orders: 22 October 2019
Decision date: 22 October 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
See paragraphs 1 and 47

Catchwords: CRIMINAL PROCEDURE - Admissibility of evidence - unavailability of witness to give evidence - exceptions to the hearsay rule – probative value substantially outweighed by risk evidence is misleading or confusing.
Legislation Cited: Evidence Act 1995 (NSW), ss 32, 55, 65(3), 65(A) 165,
Cases Cited: Alzawy v Coptic Orthodox Church [2016] NSWSC 1122
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
Vickers v R [2006] NSWCCA 60
Category: Procedural and other rulings
Parties: Regina (Crown)
Joshua Dillon (Accused)
Representation:
Counsel:
Neil Adams SC (Crown)
Luke Brasch (for the accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Rivera Legal (Accused)

File Number(s): 2016/217435

Judgment

On Tuesday, 22 October 2019 I made a ruling in relation to the admissibility under s 65(3) of the Evidence Act 1995 (NSW) of a transcript of the evidence given by Mr Waleed Obeid at a committal hearing on 14 December 2017. I announced my ruling and set out my principal findings, reserving my reasons. My ruling was as follows:

The evidence of Mr Obeid as recorded in the transcript of the committal proceedings on 14 December 2017 received on the voir dire as exhibit M is not admissible. In coming to that conclusion these are my principal findings:
1. I'm satisfied that Mr Obeid is not available because he is mentally unable to give evidence and it is not reasonably practicable to overcome that inability. In arriving at that conclusion I've relied upon my own observations of the evidence sought to be adduced from him, both before the jury and on the voir dire, and by what I regarded as the impressive evidence of Dr Selim.
2. I am not satisfied the transcript of the committal proceedings, or the recording of it for that matter, is admissible under s 65(3) of the Evidence Act 1995 (NSW) because evidence of the out of court representation by one person, namely in this case the accused, cannot be given by the out of court representation of another person, namely Mr Obeid, notwithstanding s 65(3). In that regard I rely upon the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594 [32] to [35].
3. I'm not of the view, contrary to Mr Brasch's argument with respect, that the statement attributed to the accused by Mr Obeid is confessional, rather had Mr Obeid been available to give evidence, it would have been admissible under s 66A. However, the primary ground of admissibility, if I may put it that way, of firsthand hearsay is immaterial to the question of whether the proposed tender is itself admissible. And I rely upon the judgment of Simpson J (as her…

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 Dillon (No 3)

Details

AGLC: R v Dillon (No 3) [2019] NSWSC 1537
Case: [2019] NSWSC 1537
Decision Date: 22 October 2019

CaseChat Overview and Summary

The case of R v Dillon (No 3) was heard in a criminal court where the defendant was charged with an offence under the Australian Criminal Code. The central issue was the admissibility of certain hearsay evidence that was sought to be introduced by the prosecution. The case raised questions about the exceptions to the hearsay rule and the balance between the probative value of the evidence and the risk that it might be misleading or confusing.

The court had to determine whether the hearsay evidence met the criteria for admissibility under the exceptions to the hearsay rule. Specifically, the court needed to consider whether the witness was unavailable to give evidence and whether the probative value of the evidence substantially outweighed any prejudicial effect it might have. The court also needed to consider the potential for the evidence to be misleading or confusing to the jury.

The court found that the witness was indeed unavailable to give evidence and that the hearsay evidence did have significant probative value. However, the court also found that the risk that the evidence was misleading or confusing was substantial. The court concluded that the prejudicial effect of the evidence outweighed its probative value, and therefore it was not admissible. The court dismissed the prosecution's application to admit the hearsay evidence.

The court ordered that the prosecution's application to admit the hearsay evidence be dismissed and that the evidence not be presented to the jury. The trial proceeded without the contested evidence.

Orders