R v Doe

[2006] NSWDC 193

CITATION:	R v Doe [2006] NSWDC 193
HEARING DATE(S):	6/03/06
JUDGMENT DATE:	7 March 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Evidence ruled inadmissible
CATCHWORDS:	Evidence - Admission - Identification of person making admission
LEGISLATION CITED:	Evidence Act 1995 s 59, s 81
PARTIES:	Crown Aisson Doe
FILE NUMBER(S):	04/41/0255
COUNSEL:	Mr M. Fernandez, Solicitor (Crown) Mr P. Pearsall (Accused)
SOLICITORS:	NSW DPP Hansons Lawyers, Wollongong

JUDGMENT

1 HIS HONOUR: This is an objection by the defence to the admission of a statement, made by a person known as Emos, to a Mr Mullima. The Crown says, on the basis of the statement, that Emos is the accused. Mr Mullima was a person who was said by a witness to be a passenger in a taxi. Mr Mullima says that Emos gave him a phone number and certain other information. If Emos is in fact the accused, that information given to Mr Mullima by him might escape the hearsay rule. If he is not, any statement made by a third party to Mr Mullima falls within s 59.

2 Section 59(1) says evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. There is an exception to that rule in s 81 which says the hearsay rule and the opinion rule do not apply to evidence of an admission, and “admission” is defined in the Dictionary as

“a previous representation, that is,

a) made by a person who is or becomes a party to a proceeding, including a defendant in a criminal proceeding, and,

b) adverse to the person’s interest in the outcome of the proceeding.”

3 It is quite clear that a statement made by a person, which gives to another person his phone number, which in turn enables police to arrest him, is a statement adverse to a person’s interest.

4 It is not necessary that the person making the representation be a party to the proceeding at the time the representation is made. However, in order for a statement to escape the hearsay rule under s 81, it must be made by a person who is identified other than as a result of that representation as a party to the proceeding. At first sight it would seem that to argue that this evidence, this previous representation with the telephone number and the other representations, is evidence that identifies Emos as the accused, is attractive but it is, in fact, circular. Unless and until the person who made the representation is established by independent evidence to be a party, or a person who becomes a party, to the proceeding, whatever that person says is not an admission.

5 In this case I find that the statement made by the person, Emos, to the witness, is hearsay, and unless there is other evidence which establishes that Emos is in fact the accused it cannot be used to prove that fact.

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