R v Morton - [2008] NSWCCA 196

New South Wales
Court of Criminal Appeal

CITATION: R v Morton [2008] NSWCCA 196

HEARING DATE(S): 11 August 2008

JUDGMENT DATE:
21 August 2008

JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 2; Price J at 39

DECISION: The order by Phegan DCJ rejecting the tender of the witness' statement is set aside.

CATCHWORDS: CRIMINAL LAW - inadmissibility of a witness statement taken through an interpreter - admissibility of evidence under s65 Evidence Act when the maker is not available - unavailability of persons

LEGISLATION CITED: Criminal Appeal Act 1912 - s5F(3A)
Evidence Act 1995 - s65, s67

CASES CITED: R v Mankotia [1998] NSWSC 295
R v Polkinghorne [1999] 108 A Crim R 189
Conway v R (2000) 98 FCR 204
Williams v R (2000) 119 A Crim R 490
R v Kazzi (2003) 140 A Crim R 545
R v Ambrosoli [2002] NSWCCA 386
Gaio v R (1960) 104 CLR419

PARTIES: Regina
Richard Harry Morton

FILE NUMBER(S): CCA 2007/1382202

COUNSEL: D Arnott SC (Crown)
P Hamill SC (Respondent)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
Steve O'Connor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0295

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

LOWER COURT DATE OF DECISION: 3 April 2008

- -

2007/13822002

McCLELLAN CJ at CL
BARR J
PRICE J

21 AUGUST 2008

REGINA v RICHARD HARRY MORTON

Judgment

1 McCLELLAN CJ at CL: I agree with Barr J.

2 BARR J: This is an appeal by the Crown under s5F(3A) Criminal Appeal Act against a decision made in the District Court rejecting the tender of a statement signed by the complainant and principal Crown witness in the trial of the respondent, Richard Harry Morton.

3 The respondent is due to be tried in the District Court on a charge that on or about 22 February 2007 at Leichhardt, while in the company of one Timothy Lee Davis, he robbed Matthieu Marie Bruno Scherer of a mobile telephone and a wristwatch the property of Mr Scherer, and alternatively that at the same time and place he robbed Mr Scherer of those goods.

4 Mr Scherer was a French national, resident temporarily in Sydney and working under the terms of a visa. A little after midnight on 22 February 2007 Mr Scherer was on his way home from work. He seated himself at a bus stop in Parramatta Road, Leichhardt. Two men went up to him, the respondent and Davis. Davis was the shorter of the two men. He was wearing a light coloured singlet. The respondent was wearing a black t-shirt. He was bald and bearded. He was wearing jeans which had a rip in one leg. Mr Scherer had his mobile telephone in his hand. Davis demanded that he hand it over. He took hold of him and pulled him off the seat and onto the ground. As he lay there Davis raised his fist in a threatening manner. Mr Scherer handed over his mobile phone. Davis demanded his money…

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 Morton

Details

AGLC: R v Morton [2008] NSWCCA 196
Case: [2008] NSWCCA 196
Decision Date: 21 August 2008

CaseChat Overview and Summary

The case before the court involved a criminal prosecution against the defendant, Morton. The nature of the dispute was centred on the admissibility of a witness statement obtained through an interpreter, as well as the admissibility of evidence under section 65 of the Evidence Act when the maker of the statement was unavailable. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues that the court had to determine were whether the witness statement taken through an interpreter was admissible, and whether the evidence obtained under section 65 of the Evidence Act could be admitted when the person who made the statement was not available to testify in court. These issues were critical in deciding the overall admissibility of the evidence and, consequently, the strength of the prosecution's case against the defendant.

In delivering the judgment, the court examined the relevant provisions of the Evidence Act and case law pertaining to the admissibility of statements taken through interpreters and the use of section 65. The court found that the witness statement obtained through an interpreter was admissible, as it met the requirements for such statements under the Evidence Act. Regarding the evidence under section 65, the court concluded that the unavailability of the person who made the statement did not necessarily render the evidence inadmissible, provided that certain conditions were satisfied. The court further determined that the evidence met these conditions, thereby permitting its admission. Ultimately, the court ruled in favour of the admissibility of both the interpreted witness statement and the section 65 evidence.

The final orders of the court were to admit the interpreted witness statement and the evidence obtained under section 65 of the Evidence Act into evidence. This decision was pivotal in the ongoing criminal proceedings against the defendant, as it allowed the prosecution to rely on these pieces of evidence in their case.

Orders