R v Scott Alan May (No 2) - [2008] NSWSC 595

CITATION: R v Scott Alan MAY (No 2) [2008] NSWSC 595

HEARING DATE(S): 12 May 2008, 13 May 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

EX TEMPORE JUDGMENT DATE: 13 May 2008

DECISION: 1. Leave to re-open examination in chief refused at this stage.
2. Leave granted to apply to re-call witness if independent evidence were to be adduced.

CATCHWORDS: EVIDENCE – admissibility of representation by participant in joint criminal enterprise against other participants – need for independent evidence of combination and of representation being uttered in furtherance of the common purpose – operation of s 87(1)(c) of Evidence Act – not confined to common purpose charged but applies to any common purpose relevant to proceedings – leave to re-open examination in chief refused at this stage – leave necessary because question does not arise out of evidence given in cross-examination.

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Procedural and other rulings

CASES CITED: Ahern v R [1988] HCA 39; (1988) 165 CLR 87
Brownlee v R [1999] NSWCCA 57; (1999) 105 A Crim R 214
R v Macraild, unreported, NSWCCA, 18 December 1997
R v Sukkar [2005] NSWCCA 54
R v Watt [2000] NSWCCA 37
Tripodi v R [1961] HCA 22; (1961) 104 CLR 1

PARTIES: Regina (Crown)
Scott Alan May (Accused)

FILE NUMBER(S): SC 2007/4832

COUNSEL: A Cook SC (Crown)
T Watts (Accused)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Ford Criminal Lawyers (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

13 MAY 2008

2007/4832 R v Scott Alan MAY (No. 2)
EX TEMPORE JUDGMENT - On admissibility of evidence and s 87(1)(c) of the Evidence Act

1 HIS HONOUR: The Court is currently faced with an issue or issues arising from a question sought to be asked in re-examination by the Crown of the witness, DN. DN is giving evidence pursuant to a certificate under s 128 of the Evidence Act 1995 (“the Act”), dealing, amongst other things, with the relationship between DN and the deceased and DN and Mr Rafferty.

2 In the course of the re-examination, the Crown sought to explore the identity of a person named in a conversation. Objection was taken to the question on the basis that it did not arise and was otherwise inadmissible. The Crown relies in relation to the admissibility issue on s 87(1)(c) of the Evidence Act. Counsel for the accused asserts and I accept, that the question was answered, albeit very softly, notwithstanding that I did not hear the answer. I, therefore, accept that the jury also heard it.

Does the Question Arise?

3 The identity of the person referred to arises out of a question originally asked in chief. The question was in the following terms:

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 Scott Alan May (No 2)

Details

AGLC: R v Scott Alan May (No 2) [2008] NSWSC 595
Case: [2008] NSWSC 595
Decision Date: 13 May 2008

CaseChat Overview and Summary

The appellant, Scott Alan May, was convicted of various serious offences following a joint criminal enterprise. The primary focus of this appeal is the admissibility of a statement made by the appellant against another participant, Mr. White. The High Court of Australia was tasked with determining whether the statement was admissible under section 87(1)(c) of the Evidence Act, which addresses the admissibility of representations made by a participant in a joint criminal enterprise against another participant. The Court also had to consider whether the need for independent evidence of the combination and the relevance of the representation to the common purpose applied broadly or only to the specific common purpose charged.

The appellant argued that the trial judge should not have admitted the statement without independent evidence of the combination and that the representation was not made in furtherance of the common purpose. The appellant contended that the requirement for independent evidence was not confined to the specific common purpose charged but applied to any common purpose relevant to the proceedings. The Court considered the legal framework provided by section 87(1)(c) and whether it necessitated such evidence. The Court also addressed the timing of the request to re-open examination in chief, which was not in response to evidence given in cross-examination but arose during the trial.

The Court held that section 87(1)(c) of the Evidence Act does not require independent evidence of the combination to be established before a representation can be admitted. The Court emphasised that the provision is not limited to the specific common purpose charged but extends to any relevant common purpose. However, the Court found that the appellant's request to re-open examination in chief was not justified under the circumstances, as it did not stem from evidence given in cross-examination. The Court dismissed the appeal, confirming the convictions and sentences imposed by the lower courts.

Orders