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 204Category: Interlocutory applications Parties: Regina
Natasha YoukhanaRepresentation: Mr P Boulten SC (Offender)
Ms F Gray (Director of Public Prosecutions)
File Number(s): 2007/16952 2007/17249
Judgment
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].
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.
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.
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.
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…
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- Case
- [2011] NSWDC 204
- Decision Date
CaseChat Overview and Summary
The court considered the statutory framework under the Evidence Act 2008 (Vic) and the common law principles governing the admissibility of electronic data. The defence argued that the police had not complied with the legal requirements for obtaining the data, specifically the need for a warrant. The prosecution contended that the evidence was obtained lawfully and was necessary to establish the defendant's guilt. The court found that the police had acted within the bounds of the law when seizing the defendant's phone, and the data obtained was relevant to the charges against her. The evidence was deemed admissible as it was obtained lawfully and was relevant to the proceedings.
The court ruled in favour of the prosecution, admitting the evidence obtained from the defendant's mobile phone. This decision allowed the prosecution to use the electronic data as evidence in establishing the defendant's involvement in dealing with the proceeds of crime. The court's decision hinged on the legality of the evidence's acquisition and its relevance to the charges. The final orders of the court were to admit the evidence obtained from the defendant's mobile phone into the trial proceedings.
Orders
Orders of the court
Evidence admitted
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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