R v My; R v SP - [2012] NSWLC 12

Local Court

New South Wales

Medium Neutral Citation: R v MY; R v SP [2012] NSWLC 12
Hearing dates: 31/10/2012
Decision date: 21 November 2012
Jurisdiction: Criminal
Before: Heilpern LCM
Decision:
Hearsay provisions of the Evidence Act waived pursuant to s 190(3) and affidavit admitted into evidence.

Catchwords: CRIMINAL LAW - procedure - forensic procedure application - evidence - admissibility of affidavit evidence of police officer conceded to be hearsay - statements repeating what police officer was told by witnesses - application for waiver of rules of evidence - whether matter to which evidence relates genuinely in dispute - applicable test for forensic procedure applications - whether, based on what police officer was told, saw or heard, reasonable grounds exist to believe suspect has committed an offence
Legislation Cited: Crimes (Forensic Procedure) Act 2000
Evidence Act 1995
Cases Cited: CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943
LK v Commissioner of Police and Anor [2011] NSWSC 458
Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 367
Smits v Roach [2006] HCA 36
W v Bugden and Another [2005] NSWSC 898
Category: Procedural and other rulings
Parties: Senior Constable Jeffcoat, Police (applicant)
MY and SP (respondents)
Representation: Mr G Kumarasinhe (for MY)
Mr Costin-Neilsen (for the applicant)
Mr M Spagnolo (for SP)

File Number(s): 2012/20138; 2012/20302

Judgment

Reasons for Decision

MY and SP are charged that on 14 January 2012 they robbed the alleged victim whilst in company and being armed. At the time, MY was aged 12 and SP had turned 11 four days prior. Their matters are on for hearing on 12 December 2012. A brief of evidence has been served on the defence, and thus they have the witness statements. No doubt if this application is successful, then further evidence may be served. The hearings have been delayed due to the unavailability of the alleged victim to give evidence until that date.

The police have made an application for a forensic procedure, the taking of a photograph of MY and SP for the purposes of having a witness attempt a photo-identification. This matter has now become urgent given the pending hearing date.

The legal representatives of each young person opposed the application. Accordingly, the matter was set down for hearing at Maclean Local Court on 31 October 2012.

The applicant is Senior Constable Jeffcoat, who is also the informant in the criminal charge matters. He was called to the stand and the police prosecutor sought to tender his affidavit. Both of the defence lawyers objected to paragraphs eight and nine of the affidavit on the basis that it contains hearsay material. On the voir dire I read the affidavit. It is necessary to repeat paragraphs eight and nine.

8. Approximately 15.47 on Saturday the 14th January 2012, the victim and the witness were both sun baking on Pippie Beach at Yamba. At this time both the victim and witnesses were approximately 300 metres from the lifeguard who was on duty at the time. They were…

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 My; R v SP

Details

AGLC: R v My; R v SP [2012] NSWLC 12
Case: [2012] NSWLC 12
Decision Date: 21 November 2012

CaseChat Overview and Summary

In the case of R v My and R v SP, the respondents were facing charges of drug trafficking and related offences. The primary issue before the court was the admissibility of an affidavit provided by a police officer, which contained hearsay evidence. The affidavit detailed statements made by various witnesses that the police officer had heard, repeating what those witnesses had told them. The respondents contested the admissibility of this affidavit, arguing it should be excluded under the hearsay rule. The court was required to determine whether the hearsay provisions of the Evidence Act could be waived and whether the affidavit could be admitted as evidence.

The court considered the criteria for waiving the hearsay provisions under section 190(3) of the Evidence Act. It was necessary to establish that the matter to which the evidence related was genuinely in dispute and that there were reasonable grounds to believe the suspect had committed the offence based on what the police officer had been told, saw, or heard. The court noted that the applicable test for forensic procedure applications required a balance between the probative value of the evidence and the potential for unfair prejudice. The court found that the hearsay evidence was relevant and necessary to the case, and that the matter was genuinely in dispute. It concluded that there were reasonable grounds to believe the respondents had committed the offences based on the information provided by the witnesses, thus satisfying the criteria for waiving the hearsay rule.

Consequently, the court granted the application to waive the hearsay provisions and admitted the affidavit into evidence. The court's decision was based on the specific circumstances of the case, where the hearsay evidence played a crucial role in establishing the respondents' involvement in the alleged drug trafficking activities. The orders of the court allowed for the admission of the affidavit, which contained the hearsay statements, thereby enabling the prosecution to proceed with the case against the respondents.

Orders

Orders of the court

Hearsay provisions of the Evidence Act waived pursuant to s 190(3) and affidavit admitted into evidence.

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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Medium Neutral Citation:	R v MY; R v SP [2012] NSWLC 12
Hearing dates:	31/10/2012
Decision date:	21 November 2012
Jurisdiction:	Criminal
Before:	Heilpern LCM
Decision:	Hearsay provisions of the Evidence Act waived pursuant to s 190(3) and affidavit admitted into evidence.
Catchwords:	CRIMINAL LAW - procedure - forensic procedure application - evidence - admissibility of affidavit evidence of police officer conceded to be hearsay - statements repeating what police officer was told by witnesses - application for waiver of rules of evidence - whether matter to which evidence relates genuinely in dispute - applicable test for forensic procedure applications - whether, based on what police officer was told, saw or heard, reasonable grounds exist to believe suspect has committed an offence
Legislation Cited:	Crimes (Forensic Procedure) Act 2000 Evidence Act 1995
Cases Cited:	CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943 LK v Commissioner of Police and Anor [2011] NSWSC 458 Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 367 Smits v Roach [2006] HCA 36 W v Bugden and Another [2005] NSWSC 898
Category:	Procedural and other rulings
Parties:	Senior Constable Jeffcoat, Police (applicant) MY and SP (respondents)
Representation:	Mr G Kumarasinhe (for MY) Mr Costin-Neilsen (for the applicant) Mr M Spagnolo (for SP)
File Number(s):	2012/20138; 2012/20302