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R v Dolding

R v Dolding

Case [2018] NSWCCA 127 25 June 2018

Admissibility of Evidence

Evidence Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Dolding [2018] NSWCCA 127
Hearing dates: 9 May 2018
Decision date: 25 June 2018
Before: Simpson AJA at 1
Johnson J at 65
Harrison J at 66
Decision:
1. Appeal allowed.
2. The rulings made on 27 February 2018 rejecting the tender of certain evidence proposed to be led by the Crown set aside

Catchwords:
EVIDENCE – Evidence Act 1995 (NSW) s 87(1)(c) – whether section encompasses representations made in furtherance of a common purpose extraneous to proceedings

EVIDENCE – Evidence Act 1995 (NSW) – “representation” – meaning of
EVIDENCE – where evidence tendered under s 87(1)(c) – where criteria satisfied – satisfaction of criteria does not finally determine admissibility in substantive proceedings
Legislation Cited: Criminal Appeal Act 1912, s 5F(3A)
Evidence Act 1995, s 87(1)(c); s59(1) & (2); s 56(2)
Law Enforcement (Controlled Operations) Act 1997 (NSW)
Cases Cited: Ahern v The Queen (1988) 165 CLR 87
Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794
Australian Competition & Consumer Commission v Pratt (No 3) [2009] FCA 407; (2009) 175 FCR 558
Elomar v R (2014) 300 FLR 323; [2014] NSWCCA 303
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [No 4] [2006] NSWSC 90
Landini v State of NSW [2007] NSWSC 259
Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
R v Macraild (unreported, NSWCCA, 18 December 1997)
R v Scott Alan May (No 2) [2008] NSWSC 595
R v Watt [2000] NSWCCA 37
Tripodi v The Queen (1961) 104 CLR 1
Category: Procedural and other rulings
Parties: The Crown (Appellant)
Katrina Janet Dolding (Respondent)
Representation:
Counsel:
S Dowling SC/B Baker (Appellant/Crown)
A Moen (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant/Crown)
Faye Rose Legal (Respondent)

File Number(s): 2016/252118
Publication restriction: Restricted
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 February 2018

Before:

Whitford DCJ

File Number(s):

2016/252118

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent is charged with three counts of supplying a prohibited drug (heroin), arising out of offences alleged to have been committed on 10 and 22 June and 28 July 2016. The Crown case is that on each occasion the respondent supplied the drug to M. M obtained the drug for the purpose of supplying it to another person who (unknown to M) was a “registered source” (“RS”), meaning that she cooperated with and gave information to law enforcement authorities.

Meetings and conversations took place between M and RS on the three occasions the subject of the charges. The meetings involved RS driving to M’s apartment in Waterloo, and driving, at M’s direction, to various locations in Sydney. RS was equipped with a listening device that recorded conversations between the two. Under-cover police operatives were deployed to surveille and visually record the meetings. It is the Crown case that from time to time…

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 Dolding

Details

AGLC: R v Dolding [2018] NSWCCA 127
Case: [2018] NSWCCA 127
Decision Date: 25 June 2018

CaseChat Overview and Summary

The case of R v Dolding involved the accused, Dolding, and the Crown, where the primary dispute centred around the admissibility of certain representations made by Dolding in relation to the proceedings. The matter was heard in the Supreme Court of New South Wales. The issue at the heart of the case was whether the representations made by Dolding, which were intended to further a common purpose unrelated to the proceedings, could be admitted as evidence under section 87(1)(c) of the Evidence Act 1995 (NSW).

The court was required to interpret the meaning of the term "representation" as it appeared in the statute, and whether these representations fell within the ambit of section 87(1)(c). The court also needed to determine whether the satisfaction of the criteria set out in the statute for the admissibility of evidence necessarily determined its admissibility in the substantive proceedings. This was a pivotal issue because it had implications for the broader principles of evidence law, particularly in relation to the exclusion of hearsay evidence.

In delivering the judgment, the court held that the term "representation" in section 87(1)(c) should be interpreted broadly to include statements made in furtherance of a common purpose. However, the court also clarified that the satisfaction of the criteria under the statute does not automatically lead to the admissibility of such evidence in the substantive proceedings. The court must still consider the potential prejudicial effect of the evidence against its probative value. The court found that while the representations met the criteria under section 87(1)(c), their admissibility was still subject to further scrutiny in the context of the substantive trial.

The court's final orders clarified the scope of section 87(1)(c) and reinforced the principle that the criteria for admissibility under the statute are not conclusive in determining whether evidence is admissible in substantive proceedings. This decision provided important guidance on the interpretation and application of the Evidence Act 1995 (NSW) in relation to the admissibility of evidence that may otherwise be considered hearsay.

Orders