R v Droudis (No. 7) - [2016] NSWSC 1274

Supreme Court

New South Wales

Medium Neutral Citation: R v Droudis (No. 7) [2016] NSWSC 1274
Hearing dates: 5 September 2016
Date of orders: 05 September 2016
Decision date: 05 September 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
For the purpose of s.65(2) Evidence Act 1995, the hearsay rule applies to the first representation but not the second representation arising from the evidence of Sonia Conciatore.

Catchwords: CRIMINAL LAW – Judge-alone trial for murder - Crown seeks to rely upon two representations for the purpose of s.65(2) Evidence Act 1995 - maker of representations “not available” - hearsay rule applies to first representation but not to second representation
Legislation Cited: Children (Criminal Proceedings) Act 1987
Evidence Act 1995
Cases Cited: 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 called as a witness in its case Sonia Conciatore. Ms Conciatore was a close friend of the deceased. I will not identify the deceased in this judgment as it may serve to identify the two children of her marriage to Man Monis: s.15A Children (Criminal Proceedings) Act 1987.
The Crown has adduced evidence from Ms Conciatore of things which were said to her by the deceased over a period of time. Before the topics which have given rise to the present objection, Ms Conciatore has given evidence about what the deceased had told her concerning her relationship with her former husband (Monis), with those matters being sourced to Monis.
The Crown has sought to adduce evidence from Ms Conciatore with respect to things which the deceased said to her arising from direct communications between the deceased and the Accused, Amirah Droudis.
The statements obtained by police from Ms Conciatore on 22 April 2013 and 14 May 2013 (MFIs 27 and 28 respectively) were in a type of narrative form. Against this background, an objection was indicated before Ms Conciatore entered the witness box to evidence which she may give concerning what the deceased said to her about the deceased's communications with the Accused.
It was agreed by counsel that the best way forward was when that point of her examination-in-chief was reached, a voir dire be commenced with the evidence to be led with the witness being asked to give her best recollection, in the first person, of what the deceased told her had been said between the deceased and the Accused.
The voir dire took place and submissions have occurred since. During the course of the voir dire, I granted leave to the Crown to allow Ms Conciatore to refresh her memory under s.32 Evidence Act 1995 by reference to parts of her 22 April 2013 statement (MFI27) (T438).
The issue…

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. 7)

Details

AGLC: R v Droudis (No. 7) [2016] NSWSC 1274
Case: [2016] NSWSC 1274
Decision Date: 05 September 2016

CaseChat Overview and Summary

The case of R v Droudis (No. 7) was heard in the Supreme Court of New South Wales. The defendant, Droudis, was charged with murder and faced a trial before a judge alone. The Crown sought to introduce two separate representations made by an unavailable witness for the purpose of section 65(2) of the Evidence Act 1995. The legal issue at the heart of the case was whether the hearsay rule applied to both representations, and if not, under what circumstances the second representation could be admitted.

The court had to determine whether the hearsay rule applied to the first representation, which was clearly inadmissible due to the unavailability of the maker. The second representation, however, was made in circumstances that suggested the maker intended the statement to be used in court proceedings. The court examined the nature of the second representation, the circumstances in which it was made, and whether there were any exceptions to the hearsay rule that could apply. The court held that while the hearsay rule applied to the first representation, it did not apply to the second representation, as the maker's intention was such that the statement could be considered an exception to the hearsay rule.

In conclusion, the court allowed the second representation to be admitted as evidence but ruled that the first representation was inadmissible due to the application of the hearsay rule. The court's decision hinged on the specific circumstances surrounding each representation and the intention of the maker at the time the statements were made. The final orders of the court were that the second representation could be admitted as evidence, while the first representation was excluded.

Orders