R v Holliday - [2014] ACTSC 265

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Holliday
Citation:	[2014] ACTSC 265
Hearing Date:	16 September 2014
DecisionDate:	16 September 2014
Before:	Burns J
Decision:	I am satisfied that the hearsay rule does not apply to the statement of Paul Cooper dated 15 August 2010 by virtue of s 65 (2) (c) of the Evidence Act 2011 (ACT). I am not satisfied that the hearsay rule does not apply to the statement of Christiaan Van Tonder dated 26 July 2010.
Category:	Interlocutory application
Catchwords:	EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether hearsay rule applies – whether maker of representations unavailable – whether representation was made shortly after the asserted fact happened and in circumstances that make it highly unlikely that the representation is a fabrication – whether representation was made in circumstances that make it highly probable that the representation is reliable – whether evidence of prison informant is unreliable
Legislation Cited:	Evidence Act 2011 (ACT) ss 65, 165 (1) (e)
Cases Cited:	Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108 R v Pollitt (1990) 51 A Crim R 227 R v Ton (2002) 132 A Crim R 340; [2002] NSWCCA 247 Ratten v The Queen [1972] AC 378 Williams v The Queen (2000) 119 A Crim R 490
Texts Cited:	Australian Law Reform Commission, Evidence [Interim], Report no. 26 (1985) 692 Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 11^th Edition, 2014)
Parties:	R (Crown) Aaron Holliday (Accused)
Representation:	Counsel Mr S Drumgold (Crown) Mr R Livingston (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Pappas, J Attorney (Accused)
File Number(s):	SCC 10 of 2014

Burns J:

Background

The accused has been arraigned on an indictment dated 24 January 2014 and has entered pleas of not guilty to charges that:

(a)between 20 May 2010 and 14 July 2010 he attempted to intentionally pervert the course of justice;
(b)between 20 May 2010 and 14 July 2010 he committed the offence of incitement in that he urged Darren Powell to murder Jacob Tarrant;
(c)between 20 May 2010 and 14 July 2010 he committed the offence of incitement in that he urged Darren Powell to murder Trent Jordan;
(d)between 20 May 2010 and 14 July 2010 he committed the offence of incitement in that he urged Darren Powell to kidnap Jacob Tarrant; and
(e)between 20 May 2010 and 14 July 2010 he committed the offence of incitement in that he urged Darren Powell to kidnap Trent Jordan.

These charges are listed for trial commencing today, 16 September 2014.

The Crown moves on an application dated 10 September 2014 to declare two Crown witnesses unavailable, being Johannes Christiaan Van Tonder and Paul Cooper (the Application). The Crown seeks to tender a written statement of Mr Van Tonder dated 26 July 2010, and a written statement of Mr Cooper dated 15 August 2010. The Application is supported by an affidavit sworn by Rae-Anne Khazma dated 10 September 2014, the instructing…

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 Holliday

Details

AGLC: R v Holliday [2014] ACTSC 265
Case: [2014] ACTSC 265
Decision Date: 16 September 2014

CaseChat Overview and Summary

The case of R v Holliday presented before the court involved a dispute centred on the admissibility of hearsay evidence in a criminal prosecution. The accused, Holliday, was being prosecuted for certain criminal activities, and the case hinged, in part, on the credibility and admissibility of statements made by two witnesses, Paul Cooper and Christiaan Van Tonder. The court had to determine whether these statements were admissible under the exceptions to the hearsay rule as set out in the Evidence Act 2011 (ACT).

The primary legal issue before the court was whether the hearsay rule, which generally prohibits the admission of out-of-court statements offered to prove the truth of the matter asserted, applied to the statements of Paul Cooper and Christiaan Van Tonder. Specifically, the court needed to assess whether the exceptions provided in section 65(2)(c) of the Evidence Act 2011 (ACT) applied, considering factors such as the unavailability of the declarant, the timing and circumstances of the statements, and their reliability. The court had to determine whether the statements were made shortly after the asserted facts and in circumstances that made it highly unlikely that they were fabricated, as well as whether they were made in circumstances that made it highly probable that they were reliable.

The court meticulously examined the evidence presented, focusing on the statements of Paul Cooper dated 15 August 2010 and Christiaan Van Tonder dated 26 July 2010. Regarding Paul Cooper's statement, the court found that it was made shortly after the relevant events and under circumstances that made it highly unlikely to be a fabrication. Therefore, the court concluded that the hearsay rule did not apply to this statement under section 65(2)(c) of the Evidence Act 2011 (ACT). Conversely, the court found that Christiaan Van Tonder's statement did not meet the criteria under the same section of the Act, as the evidence did not establish that the hearsay rule did not apply to it. Consequently, the court ruled that while the hearsay rule did not apply to Paul Cooper's statement, it did apply to Christiaan Van Tonder's statement.

The final orders of the court were that the hearsay rule did not apply to the statement of Paul Cooper dated 15 August 2010, and it was therefore admissible as evidence. However, the court ruled that the hearsay rule did apply to the statement of Christiaan Van Tonder dated 26 July 2010, and it was therefore inadmissible.

Orders

Orders of the court

I am satisfied that the hearsay rule does not apply to the statement of Paul Cooper dated 15 August 2010 by virtue of s 65 (2) (c) of the Evidence Act 2011 (ACT).

I am not satisfied that the hearsay rule does not apply to the statement of Christiaan Van Tonder dated 26 July 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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