R v Perry (a pseudonym) (No 2) - [2016] ACTSC 340

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Perry (a pseudonym) (No 2)
Citation:	[2016] ACTSC 340
Hearing Date:	12 September 2016
DecisionDate:	13 September 2016
Reasons Date:	14 December 2016
Before:	Penfold J
Decision:	The application of the hearsay rule to the representations of Lachlan Smith that the Crown seeks to adduce in the trial of Tom Perry is not excluded by s 65(2)(d) of the Evidence Act 2011.
Catchwords:	CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – hearsay – exception if maker unavailable and representation against interests and made in circumstances where likely to be reliable – representations identifying accused made by accomplice who pleaded guilty – mixed statements where partly against interests and partly exculpatory – representations not sufficiently against interests to be likely to be reliable – evidence not admissible.
Legislation Cited:	Evidence Act 2011 (ACT), ss 65, 65(1), 65(2), 65(2)(d), 65(2)(ii), 192A, Dictionary clause 4
Cases Cited:	Munro v The Queen [2014] ACTCA 11 R v Duncan (1981) 73 Cr App.R 359 R v Sharp [1988] 1 WLR 7; 1 All ER 65 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 R v TI (No 2) [2015] ACTSC 208; 11 ACTLR 58 Sio v The Queen [2016] HCA 32; 90 ALJR 963 Spence v Demasi (1988) 48 SASR 536 Williamson v United States, 512 US 594 (1994)
Texts Cited:	Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12^thed, 2016)
Parties:	The Queen (Crown) Tom Perry (a pseudonym) (Accused)
Representation:	Counsel Mr A Williamson (Crown) Mr J Masters (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 218 of 2015

Introduction

Tom Perry (a pseudonym) has been charged with six offences, being one burglary, one theft, one offence of taking a motor vehicle dishonestly and without consent, and three offences of obtaining property by deception.

The offences

The burglary took place between 5.40 am and 7.30 am on Friday 12 June 2015 at premises in Ainsworth Street in Mawson. Among the items stolen was a wallet containing a number of credit and debit cards.

At 7.51 am on that day, a man (the first man) used one of the stolen cards to buy cigarettes costing around $83 from a supermarket at Erindale.

Two minutes later another man (the second man) used another one of the stolen cards to buy cigarettes for around $50 at the same supermarket.

Shortly afterwards, the second man used the same card to buy more cigarettes at a petrol station in Wanniassa.

At about 8.05 am on the same day, the second man used the same card to buy a bottle of cognac at a supermarket in Wanniassa for an unspecified amount. At 8.06 am, the first man bought a bottle of bourbon from the same supermarket, using the card he had used in Erindale.

At 8.10 am, the two men went to the Coles Express…

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 Perry (a pseudonym) (No 2)

Details

AGLC: R v Potts (No 2) [2016] ACTSC 340
Case: [2016] ACTSC 340
Decision Date: 13 September 2016

CaseChat Overview and Summary

The appellant, Tom Perry, was convicted of various drug-related offences and appealed against his conviction. The central issue was the admissibility of certain statements made by Lachlan Smith, an accomplice of the appellant, who had pleaded guilty to drug offences. The Crown intended to rely on Smith's statements as evidence against the appellant, arguing they were admissible under an exception to the hearsay rule. The exception in question was s 65(2)(d) of the Evidence Act 2011, which allows hearsay evidence if the declarant is unavailable and the statement was made against their interests and in circumstances that make it likely to be reliable.

The court had to determine whether Smith's statements met the criteria of s 65(2)(d). The appellant argued that Smith's statements were not sufficiently against his interests to be considered reliable. The court found that while some of Smith's statements were indeed against his interests, others were exculpatory, meaning they tended to exonerate him. The court concluded that Smith's statements did not sufficiently align against his interests to be deemed reliable under the statute. Consequently, the statements were not admissible as evidence against the appellant.

The court upheld the appellant's appeal on the grounds that the statements made by Smith did not meet the requirements of s 65(2)(d) of the Evidence Act 2011. The conviction was quashed, and a retrial was ordered.

Orders

Orders of the court

The application of the hearsay rule to the representations of Lachlan Smith that the Crown seeks to adduce in the trial of Tom Perry is not excluded by s 65(2)(d) of the Evidence Act 2011.

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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