R v Natasha Youkhana

District Court

New South Wales

Medium Neutral Citation:	R v Natasha YOUKHANA [2011] NSWDC 204
Hearing dates:	25 October 2011
Decision date:	25 October 2011
Jurisdiction:	Criminal
Before:	Judge Haesler SC
Decision:	Evidence admitted
Catchwords:	CRIMINAL - Evidence Act determination - Knowingly deal with the proceeds of crime
Legislation Cited:	Evidence Act 1995 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Jang [1999] NSWSC 1040 Suteski (No 4) (2002) 128 A Crim R 275 Ambrosoli (2002) 55 NSWLR 603 Mankotia [1998] NSWSC 295 Conway (2000) 98 FCR 204
Category:	Interlocutory applications
Parties:	Regina Natasha Youkhana
Representation:	Mr P Boulten SC (Offender) Ms F Gray (Director of Public Prosecutions)
File Number(s):	2007/16952 2007/17249

Judgment

1. Natasha Youkhana has pleaded guilty to an offence of knowingly dealing with the proceeds of crime: s 193B(2) Crimes Act 1900 (NSW). An important particular of that offence is the amount said to be involved in the crime. The Crown contends that $4,642,135 was involved. The defence say about $2,000,000 should come off that figure. The particulars are set out in the Facts document (Exhibit A, Tab 2). When that document was tendered I was informed that objection was taken to paragraphs [31]-[36] and [38]-[44]. That objection was later extended to paragraphs [28] and [37].

1. Paragraphs [31]-[44], which follow a subheading "E" in the document, are the subject of this application and relate to allegations made by Alessio Torelli, whose statement is now before me as Voir Dire Exhibit D. On an earlier occasion in these proceedings I was informed by Mr Boulten SC, who appears for Ms Youkhana, that Mr Torelli was required for cross-examination. It is clear from Voir Dire Exhibits A, B and C that the Director of Public Prosecutions and the NSW Police have made all reasonable efforts to ensure that Mr Torelli was before the Court on 21 October 2011, the date that this matter was listed to determine disputed evidence. Mr Boulten accepts that evidence establishes Mr Torelli is "unavailable": Evidence Act, Dictionary Pt 2 Cl 4.

1. Ms Gray, for the Director, seeks to tender the statement and the annexures necessary to understand the statement made by Mr Torelli on 21 November 2007 (Voir Dire Exhibit D). Objection is taken to that tender. Mr Boulten asks that I direct that the Evidence Act applies to this part of the proceedings. I so direct.

1. Issue is joined on the question of whether, its maker being unavailable, Mr Torelli's previous statement should be admitted as relevant evidence on sentence because of the exception to the hearsay rule provided in s 65(2) Evidence Act 1995 (NSW). Proper notice that s 65 would be relied on was provided in advance to the defence. Mr Boulten also submits that, should the document be admissible as hearsay, s 137 Evidence Act requires its exclusion.

1. Ms Gray relies on ss 65(2)(b) and (d) which read, relevantly:

"The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise…