R v Saurav Mahay - [2010] NSWDC 343

CITATION: R v Saurav MAHAY; Michael Dean KHAN, Dushand RANA [2010] NSWDC 343

JUDGMENT DATE:
27 August 2010

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Evidence of the first call not to be admitted. The balance of the calls are admissible.

CATCHWORDS: CRIME - jury trial - specially aggravated detain for ransom - intercepted telephone calls - one co-accused not a party to any of the intercepted calls - application by Crown to tender calls against accused who is not a party to the calls as admissions - whether what was said in the calls was said in furtherance of a common purpose - meaning of 'in furtherance of' - meaning of 'reasonably open'

LEGISLATION CITED: Evidence Act 1995 s 87, s 135

CASES CITED: Ahern v The Queen (1988) 165 CLR 87
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90
Jackson v TCN Channel Nine Pty Ltd [2002] NSWSC 1229
Landini v New South Wales [2007] NSWSC 259
Tripodi v The Queen (1961) 104 CLR 1

PARTIES: Regina
Saurav Mahay
Michael Dean Khan
Dushand Rana

FILE NUMBER(S): 2008/82064; 2008/211508; 2008/254927

COUNSEL: Mr S De Silva for the Director of Public Prosecutions
Ms K Stares for Mr Khan
Ms ST Hall for Mr Rana

SOLICITORS: Mr WJ Sandilands for Mr Mahay

JUDGMENT

1. Michael Dean Khan has been charged with kidnapping. He is jointly charged with two other accused, Saurav Mahay and Dushand Rana.

2. Part of the prosecution case was evidence of intercepted telephone calls. The parties to the telephone calls included, at various stages, Mr Khan's co-accused Mr Mahay and Mr Rana and other persons. Mr Khan himself is not a party to any of those telephone calls.

3. The Crown Prosecutor, Mr De Silva, nevertheless tenders the telephone calls against Mr Khan. They are tendered, he says, as admissions made on behalf of Mr Khan. He tenders them under s 87 of the Evidence Act 1995, in particular s 87(1)(c).

4. The test to be applied by me according to that section - if what is said in the telephone calls is to be admitted against Mr Khan as admissions - is whether it is reasonably open to find that what was said in the telephone conversations was said “in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more person including the party." Put in terms of this case the question is whether anything said by people speaking on the phone could be said to have been said in furtherance of a common purpose between that person and Mr Khan or others.

5. If I am satisfied that it is reasonably open to find that, the section provides that "the court is to admit the representation". As McDougall J said in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 at…

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.

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Details

Case: [2010] NSWDC 343
Decision Date: 27 August 2010

CaseChat Overview and Summary

The appellant, Saurav Mahay, was convicted of a crime involving a specially aggravated detention for ransom, following a jury trial. The prosecution sought to introduce intercepted telephone calls as evidence against Mahay, although he was not a party to one of the intercepted calls. The Crown sought to tender the calls against Mahay as admissions, arguing that what was said was in furtherance of a common purpose. The legal issue before the court was whether the evidence of the intercepted telephone calls was admissible, and if so, which of the calls were admissible. The court considered the meaning of 'in furtherance of' and 'reasonably open' in the context of the evidence.

The court found that the meaning of 'in furtherance of' required a closer connection between the statement and the common purpose than merely being consistent with it. The court held that the evidence of the first call was not to be admitted as it did not meet this standard. However, the balance of the calls were admissible as they were reasonably open to be considered as being in furtherance of the common purpose. The court held that the meaning of 'reasonably open' referred to whether it was reasonably open to a person considering the evidence to conclude that the statement was in furtherance of the common purpose.

The court determined that the evidence of the first call was not to be admitted as it did not meet the standard of being in furtherance of the common purpose. The court held that the balance of the calls were admissible as they were reasonably open to be considered as being in furtherance of the common purpose. The court ordered that evidence of the first call not be admitted, while the balance of the calls were admissible.

Orders

Orders of the court

Evidence of the first call not to be admitted. The balance of the calls are admissible.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Saurav MAHAY; Michael Dean KHAN, Dushand RANA [2010] NSWDC 343
JUDGMENT DATE:	27 August 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Evidence of the first call not to be admitted. The balance of the calls are admissible.
CATCHWORDS:	CRIME - jury trial - specially aggravated detain for ransom - intercepted telephone calls - one co-accused not a party to any of the intercepted calls - application by Crown to tender calls against accused who is not a party to the calls as admissions - whether what was said in the calls was said in furtherance of a common purpose - meaning of 'in furtherance of' - meaning of 'reasonably open'
LEGISLATION CITED:	Evidence Act 1995 s 87, s 135
CASES CITED:	Ahern v The Queen (1988) 165 CLR 87 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 Jackson v TCN Channel Nine Pty Ltd [2002] NSWSC 1229 Landini v New South Wales [2007] NSWSC 259 Tripodi v The Queen (1961) 104 CLR 1
PARTIES:	Regina Saurav Mahay Michael Dean Khan Dushand Rana
FILE NUMBER(S):	2008/82064; 2008/211508; 2008/254927
COUNSEL:	Mr S De Silva for the Director of Public Prosecutions Ms K Stares for Mr Khan Ms ST Hall for Mr Rana
SOLICITORS:	Mr WJ Sandilands for Mr Mahay