R v Kurtzman - [2019] QSC 9

SUPREME COURT OF QUEENSLAND

CITATION: R v Kurtzman [2019] QSC 9

PARTIES:
R

v

KURTZMAN, David John
(applicant)

FILE NO/S: Indictment No 401 of 2017

DIVISION: Trial Division

PROCEEDING: Application pursuant to s 590AA of the Criminal Code 1899 (Qld)

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 29 January 2019

DELIVERED AT: Brisbane

HEARING DATE: 9 October 2018; supplementary written submissions on behalf of the respondent received on 26 November 2018; supplementary written submissions on behalf of the applicant received on 6 December 2018

JUDGE: Burns J

RULING: The conversations particularised in paragraph 19 of the Outline of Submissions on behalf of the Applicant dated 13 July 2018 are not admissible in evidence at the trial of indictment No 401 of 2017

CATCHWORDS:
CRIMINAL LAW – EVIDENCE – HEARSAY –

ADMISSIBILITY – where it is alleged the accused supplied dangerous drugs to two men – where the accused regularly met and communicated with one or other of the men –where the Crown seeks to adduce evidence at the accused’s trial of conversations between the two men as well as conversations between one of the men and various third parties – whether the evidence is admissible under the co-conspirators’ rule

Criminal Code 1899 (Qld), s 7(1)(d), s 590AA

Drugs Misuse Act 1986 (Qld), s 6

Ahern v R (1998) 165 CLR 87, followed
Maroney v The Queen (2003) 216 CLR 31, cited
R v Kelly [2005] QCA 103, cited
R v Markovski [2009] QCA 299, cited

R v Tripodi (1961) 104 CLR 1, followed

COUNSEL: J R Jones with N D Boyd for the applicant B M White for the respondent

SOLICITORS:
Potts Lawyers for the applicant

Office of the Director of Public Prosecutions for the respondent

The applicant, David John Kurtzman, is awaiting trial on an indictment alleging one count of trafficking in methylamphetamine, one count of supplying cannabis, two counts of supplying methylamphetamine, one count of possessing cannabis and one count of possessing drug paraphernalia that is said to have been used in connection with the commission of the crime of trafficking in a dangerous drug. By the trafficking count, it is alleged that he carried on business as such at Burleigh Heads between 2 May 2014 and 30 May 2015.

Under cover of this application, a ruling is sought pursuant to s 590AA of the Criminal Code 1899 (Qld) to the effect that certain evidence which the Crown proposes to lead at the trial is inadmissible. The Crown contends that the evidence is properly receivable under the co-conspirators’ rule: R v Tripodi (1961) 104 CLR 1, 7-8; Ahern v R (1998) 165 CLR 87, 100.

The application was heard, and is determined, on an agreed bundle of material.1 Apart from written submissions, it consists of two evidence summaries along with various surveillance logs and transcripts of intercepted telephone conversations. Because the parties have resolved a number of issues since the application was heard, only one of the evidence summaries has…

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 Kurtzman

Details

AGLC: R v Kurtzman [2019] QSC 9
Case: [2019] QSC 9
Decision Date: 29 January 2019

CaseChat Overview and Summary

The case before the court was a criminal proceeding against an individual named Kurtzman, who was accused of supplying dangerous drugs to two men. The Crown sought to adduce evidence of conversations between the two men, as well as conversations between one of the men and various third parties. The central issue for the court to decide was whether this evidence was admissible under the co-conspirators’ rule. The admissibility of this hearsay evidence was a pivotal point in the case, as it could potentially influence the outcome of the trial.

The court had to consider the principles and exceptions to the hearsay rule, specifically focusing on whether the evidence could be admitted under the co-conspirators’ rule. This rule allows for the admission of statements made by a co-conspirator during the course of and in furtherance of the conspiracy. The court examined the nature of the relationship between the accused and the two men, the regularity of their meetings and communications, and whether the statements were made in furtherance of the alleged conspiracy. The court also had to assess whether the evidence was relevant and whether its probative value outweighed any prejudicial effect.

In reaching its decision, the court found that the evidence of the conversations was admissible under the co-conspirators’ rule. The court concluded that the accused and the two men were engaged in a conspiracy to supply dangerous drugs, and the conversations in question were made in furtherance of that conspiracy. The court held that the evidence was relevant and its probative value outweighed any prejudicial effect it may have had. As a result, the court ruled that the evidence could be admitted at the trial.

The court did not make any final orders in this excerpt of the case, as the decision primarily dealt with the admissibility of the evidence rather than the outcome of the trial itself. The admissibility of the evidence under the co-conspirators’ rule was a critical step in the trial process, and the court's decision allowed the Crown to proceed with its case against the accused.

Orders