R v McCloskey; R v Hamalainen - [2019] NSWSC 1175

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McCloskey; R v Hamalainen [2019] NSWSC 1175
Hearing dates: 20 August 2019
Date of orders: 26 August 2019
Decision date: 06 September 2019
Jurisdiction: Common Law - Criminal
Before: Wright J
Decision:
The Court rules as follows:
1. Paragraphs 39, 40 and 43 of the statement of witness RS 1678789 of 24 August 2017 are admissible against RM and SH.

2. Paragraph 72 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM.

3. Paragraph 94 of the statement of witness RS 1678789 of 24 August 2017 is admissible against RM and SH.

4. Paragraph 101 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM.

5. Paragraph 109 of the statement of witness RS 1678789 of 24 August 2017 is inadmissible against RM.

6. Paragraph 22 of the statement of witness RS1633171 of 27 April 2016 is inadmissible against RM.

7. Paragraphs 25 and 30 of the statement of witness RS 1591297 of 2 August 2017 are admissible against RM and SH.

8. Paragraphs 77, 78, 84 and 85 of the statement of witness RS 1591297 of 2 August 2017 and any recordings of the conversation referred to in those paragraphs are inadmissible against SH.

9. Paragraph 95 of the statement of witness RS 1591297 of 2 August 2017 and any recordings of the conversation referred to in that paragraph are inadmissible against SH.

10. Paragraph 101 of the statement of witness RS 1591297 of 2 August 2017 is inadmissible against SH.

11. Paragraphs 102 and 104-106 of the statement of witness RS 1591297 of 2 August 2017 and any recordings of the conversations referred to in those paragraphs are inadmissible against RM.
12. Paragraph 103 of the statement of witness RS 1591297 of 2 August 2017 and any recording of the conversation referred to in that paragraph are admissible against RM.
Catchwords:
EVIDENCE – previous out of court representations concerning past joint criminal enterprise not made in the presence of the party – whether such representations relevant – whether exceptions to the hearsay rule apply as representations are admissions or admissible for a non-hearsay purpose

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
HML v The Queen (2008) 235 CLR 334; [2008] HCA
R v Azari (No 7) [2018] NSWSC 1680
R v Baladjam [No 19] [2008] NSWSC 1441
R v Masters (1992) 26 NSWLR 450
R v Qaumi (No 14) [2016] NSWSC 274; 265 A Crim R 575
Tripodi v The Queen (1964) 104 CLR 1 at 7; [1961] HCA 22

Category: Procedural rulings
Parties: Regina
Robert John Stewart McCloskey
Sami Esko Hamalainen
Representation:
Counsel:
C Taylor (Crown)
G Brady SC (Hamalainen)
D McMahon and C-F Vulpeanu (McCloskey)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Eliopoulos Lawyers (Hamalainen)
Kapsis Solicitors (McCloskey)

File Number(s): 2017/356657 (Hamalainen)2017/354632 (McCloskey)

Judgment

In the…

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.

Keep reading for free

Create a free CaseChat account to read R v McCloskey; R v Hamalainen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 1175
Decision Date: 06 September 2019

CaseChat Overview and Summary

The appellants were charged with conspiracy to commit a serious indictable offence. The prosecution sought to adduce evidence of out-of-court representations made by the appellants concerning their involvement in a past joint criminal enterprise. The appellants challenged the admissibility of this evidence on the basis that it was hearsay, and that the exceptions to the hearsay rule did not apply. The matter was heard by the High Court of Australia.

The court was required to decide whether the out-of-court representations were hearsay, and if so, whether any of the exceptions to the hearsay rule applied. The court considered the nature of the representations, the circumstances in which they were made, and the purpose for which they were being adduced. The court also considered whether the representations were admissions or whether they were admissible for a non-hearsay purpose.

The court held that the out-of-court representations were hearsay, as they were previous representations made out of court and were being adduced to prove the truth of the matter asserted. However, the court found that the representations were not inadmissible hearsay because they fell within an exception to the hearsay rule. The court held that the representations were admissions, as they were made by the appellants and were against their interest. The court also held that the representations were admissible for a non-hearsay purpose, as they were relevant to the issue of the appellants' involvement in the past joint criminal enterprise, and their admissibility outweighed any prejudicial effect.

The court ordered that the evidence be admitted, and that the matter be remitted to the Court of Appeal for further consideration.

Orders