1. The application by the Accused for a permanent stay of the prosecution on the present indictment is refused. 2. The application to admit into evidence the report dated 3 June 2010 of Shaun Evan Mark is declined. The Crown will be heard further with respect to any evidence of Mr Mark which the Crown seeks to tender. 3. The application to exclude from evidence any part of the affidavit of Wim Langeveld sworn 20 November 2009, the affidavit of Claudio Pfammetter sworn 9 December 2009 or the affidavit of Vladimir Stemberger sworn 21 January 2010 is declined. 4. The application to exclude from evidence any of the documents tendered by the Crown under the Foreign Evidence Act 1994 (Cth) is declined. 5. The application to direct the Crown to call as witnesses any of the persons specified by the Accused in notices issued for this purpose is declined. 6. The evidence identified in paragraphs 7(a) and (c) of the Further Amended Notice of Motion is admissible under s.55 and s.56 Evidence Act 1995 and the application to exclude that evidence under s.135 or s.137 Evidence Act 1995 is declined.
CATCHWORDS:
CRIMINAL LAW - pretrial rulings - indictment alleging money laundering and dishonest obtaining offences - s.400.3(1) and s.135(1) Criminal Code Act 1995 (Cth) - application for permanent stay upon grounds of abuse of process - stay refused - Crown seeks to tender expert report of accountant/financial analyst - objection to tender on various grounds - tender of report rejected - Crown to rely upon documents under Foreign Evidence Act 1994 (Cth) - objection to tender on various grounds - objections overruled - application by Accused under s.169 Evidence Act 1995 for order that persons attend to give evidence - application refused - objection to certain evidence on grounds of relevance and under ss.135 and 137 Evidence Act 1995 - objection overruled
[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.
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AGLC
R v Milne (No 1) [2010] NSWSC 932
Case
[2010] NSWSC 932
Decision Date
CaseChat Overview and Summary
In this case, the defendant, Milne, was charged with offences of money laundering and dishonest obtaining under sections 400.3(1) and 135(1) of the Criminal Code Act 1995. The Crown sought to tender an expert report from an accountant and financial analyst, which was objected to by the defence on various grounds. The court considered the objections and rejected the tender of the expert report. Instead, the Crown planned to rely upon documents under the Foreign Evidence Act 1994, which was also objected to by the defence, but the court overruled the objections.
The legal issues before the court involved the admissibility of the expert report and foreign evidence, as well as the relevance and admissibility of certain evidence under sections 135 and 137 of the Evidence Act 1995. The court was required to determine whether the objections to the evidence were valid and whether the evidence should be admitted or excluded. The court also considered an application by the accused for an order that certain persons attend to give evidence under section 169 of the Evidence Act 1995.
The court found that the objections to the tender of the expert report were not valid and rejected the report. The court also found that the objections to the tender of foreign evidence were not valid and allowed the evidence to be tendered. The court further found that the objections to the relevance and admissibility of certain evidence under sections 135 and 137 of the Evidence Act 1995 were not valid and overruled the objections. The court also refused the application by the accused for an order that certain persons attend to give evidence. The court's reasoning and outcome were based on the provisions of the relevant legislation and the evidence presented before the court.