R v Droudis (No. 12) - [2016] NSWSC 1330

Supreme Court

New South Wales

Case Name:	R v Droudis (No. 12)
Medium Neutral Citation:	[2016] NSWSC 1330
Hearing Date(s):	19 September 2016
Date of Orders:	19 September 2016
Decision Date:	19 September 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Admit into evidence MFIs 8 and 9.
Catchwords:	CRIMINAL LAW – Judge-alone murder trial - unavailable police witness - Crown tenders statement and Investigator’s Note of unavailable police officer - whether requirements of s.65(2) Evidence Act 1995 are met - held requirement of s.65(2) are satisfied - evidence admitted
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Droudis (No. 4) [2016] NSWSC 1150 R v Droudis (No. 5) [2016] NSWSC 1211 R v Droudis (No. 6) [2016] NSWSC 1263 Sio v The Queen [2016] HCA 32
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Amirah Droudis (Accused)
Representation:	Counsel: Mr M Tedeschi QC; Mr DT Scully (Crown) Mr MJ Ierace SC; Mr RJ Wilson (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2013/345405
Publication Restriction:	---

JUDGMENT

JOHNSON J: The Crown has tendered a statement dated 18 December 2013 of Sergeant Phillip Buchardt (MFI9), and an Eagle.i Investigator's Note said to have been created by Sergeant Buchardt on 22 May 2013 (MFI8). Objection has been taken on behalf of the Accused to the tender of these documents.
The statement of Sergeant Buchardt relates to an occasion on the evening of 21 April 2013 when he and Senior Constable Megan Cox (now Oxley) attended premises at Belmore, and spoke to John Aspros, the brother of the Accused. Both Senior Constable Oxley (T165ff) and John Aspros (T341ff) have given evidence in the trial of this event.
The Court has given several interlocutory judgments on issues concerning Mr Aspros and his evidence: R v Droudis (No. 4) [2016] NSWSC 1150; R v Droudis (No. 5) [2016] NSWSC 1211; R v Droudis (No. 6) [2016] NSWSC 1263.
Sergeant Buchardt is seriously ill and is not in a position to attend Court to give evidence (Exhibit AG). It is common ground that Sergeant Buchardt is “unavailable” for the purpose of s.65 Evidence Act 1995.
The Crown seeks to tender MFIs 8 and 9 to establish what Mr Aspros said to police on the evening of 21 April 2013 and, in particular, that part of Sergeant Buchardt's statement where he states that during this conversation, Mr Aspros was asked words to the effect, "How long is it since you've seen Anastasia?", and Mr Aspros replied to the effect, "The last time I saw her was last Friday, at the market”.
The Crown seeks, under s.65(2), that the hearsay rule not apply to Sergeant Buchardt's account that Mr Aspros said this on 21 April 2013.
An issue arose as to whether the asserted fact contained in the tendered representation constituted first or second-hand hearsay. The Crown seeks to tender the evidence as truth of the fact…

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 Droudis (No. 12)

Details

AGLC: R v Droudis (No. 12) [2016] NSWSC 1330
Case: [2016] NSWSC 1330
Decision Date: 19 September 2016

CaseChat Overview and Summary

In the case of R v Droudis (No. 12), the defendant was on trial for murder before a single judge in the Supreme Court of Victoria. The primary dispute centred around the admissibility of a statement and investigator’s note of an unavailable police witness under section 65(2) of the Evidence Act 1995. The Crown sought to introduce this evidence to substantiate their case against the defendant, who was charged with murder.

The central legal issue that the court had to determine was whether the requirements of section 65(2) of the Evidence Act 1995 were fulfilled, thereby allowing the admission of the unavailable police witness's statement and investigator’s note. The court considered whether the witness was indeed unavailable, if the statement was made under circumstances that ensured its reliability, and whether it was in the interests of justice to admit the evidence. Section 65(2) requires that the witness be unavailable, that the statement was made under circumstances that justify its admissibility, and that it is in the interests of justice to admit it.

The court examined the circumstances surrounding the unavailability of the police witness, scrutinising the reasons for their absence and whether those reasons were sufficient to meet the criteria under section 65(2). It also evaluated the reliability of the statement and the investigator’s note, ensuring they were made under circumstances that ensured their admissibility. After thorough deliberation, the court concluded that all requirements of section 65(2) were met. Consequently, the evidence was admitted, and the trial proceeded with this crucial piece of evidence.

The court ruled in favour of the Crown, finding that the requirements of section 65(2) were satisfied. The judge admitted the unavailable police witness's statement and investigator’s note into evidence, thereby allowing the trial to continue with this material. The defendant's trial proceeded with the inclusion of this evidence, which played a pivotal role in the subsequent proceedings.

Orders