R -v- LOVETT [2012] WASC 511

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 511
Published:	28/12/2012
Case No:	INS:26/2012	Heard:	19 NOVEMBER 2012
Coram:	EM HEENAN J	Delivered:	19/11/12
No of pages:	11	Judgment Part:	1 of 1
Result:	Application to admit evidence refused Application for a separate trial refused
Category:	B
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Parties:	THE QUEEN BENJAMIN DAVID LOVETT LANCE BARRY PETTER
Catchwords:	Criminal Procedure Act 2004 (WA) Evidence Co-conspirator's rule Admissibility of out of court statements by a third person implicating one accused No evidence to establish conspiracy or joint unlawful purpose between either accused and the maker of the statement at that time Possible inference that statement may tend to exonerate second accused Maker of statement not to be called Inadmissible Application for separate trial refused
Legislation:	Nil
Case References:	Ahern v The Queen [1988] HCA 89; (1988) 165 CLR 87 Ali v The Queen [2005] HCA 8 Baker v The Queen [2012] HCA 27 Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 R v Masters (1992) 26 NSWLR 450 Russell v The State of Western Australia [2011] WASCA 246 Tsang v Commonwealth Director of Public Prosecutions [2011] VSCA 336; 255 FLR 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : R -v- LOVETT [2012] WASC 511 CORAM : EM HEENAN J HEARD : 19 NOVEMBER 2012 DELIVERED : 19 NOVEMBER 2012 FILE NO/S : INS 26 of 2012 BETWEEN : THE QUEEN

Prosecution

AND

BENJAMIN DAVID LOVETT

First Accused

LANCE BARRY PETTER

Second Accused

Catchwords:

Criminal Procedure Act 2004 (WA) - Evidence - Co-conspirator's rule - Admissibility of out of court statements by a third person implicating one accused - No evidence to establish conspiracy or joint unlawful purpose between either accused and the maker of the statement at that time - Possible inference that statement may tend to exonerate second accused - Maker of statement not to be called - Inadmissible - Application for separate trial refused

Legislation:

Nil

(Page 2)

Result:

Application to admit evidence refused

Application for a separate trial refused

Category: B

Representation:

Counsel:

Prosecution : Mr A L Troy

First Accused : Ms L B Black

Second Accused : Mr J R Noble

Solicitors:

Prosecution : Director of Public Prosecutions (Cth)

First Accused : Kate King Legal Pty Ltd

Second Accused : Jeremy Noble

Case(s) referred to in judgment(s):

Ahern v The Queen [1988] HCA 89; (1988) 165 CLR 87
Ali v The Queen [2005] HCA 8
Baker v The Queen [2012] HCA 27
Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1
R v Masters (1992) 26 NSWLR 450
Russell v The State of Western Australia [2011] WASCA 246
Tsang v Commonwealth Director of Public Prosecutions [2011] VSCA 336; 255 FLR 41

(Page 3)

1 EM HEENAN J: Benjamin David Lovett and Lance Barry Petter have been indicted under an amended indictment, charged with offences against s 302.2(1) of the Criminal Code

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 Lovett

Details

AGLC: R -v- LOVETT [2012] WASC 511
Case: [2012] WASC 511
Decision Date: 28/12/2012

CaseChat Overview and Summary

The case of R v Lovett involved two defendants, Lovett and another individual, who were facing charges related to criminal activities. The dispute centred around the admissibility of certain out-of-court statements made by a third party that implicated Lovett. The matter was heard in a court in Western Australia. The key issue the court had to decide was whether the out-of-court statements made by the third party were admissible under the co-conspirator's rule, despite there being no evidence to establish a conspiracy or joint unlawful purpose between the third party and either accused at the time the statements were made.

The court examined the legal principles governing the admissibility of such statements under the Criminal Procedure Act 2004 (WA). It considered whether the statements could be used to establish a conspiracy or joint unlawful purpose between the accused and the third party, or whether they could be admitted on the basis that they tended to exonerate one of the accused. The court concluded that, in the absence of evidence to establish a conspiracy or joint unlawful purpose, the statements were inadmissible as they did not meet the criteria for admissibility under the co-conspirator's rule. Furthermore, the court found that the possible inference that the statements may tend to exonerate one of the accused was not sufficient to warrant their admission. Additionally, the court rejected the application for a separate trial, finding that it was not necessary in the circumstances.

The court's decision was that the application to admit the evidence was refused, and the application for a separate trial was also refused. The court's ruling ensured that the trial proceeded without the inadmissible evidence, maintaining the integrity of the judicial process and protecting the rights of the accused.

Orders

Orders of the court

Application to admit evidence refused

Application for a separate trial refused

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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