R v Sood (Ruling No 2) - [2006] NSWSC 732

CITATION: R v Sood (Ruling No 2) [2006] NSWSC 732

HEARING DATE(S): 12 - 14 July 2006, 17 - 19 July 2006

JUDGMENT DATE :
20 July 2006

JUDGMENT OF: Simpson J

DECISION: evidence admitted

CATCHWORDS: Ruling on admissibility of evidence - Evidence Act s108

LEGISLATION CITED: Evidence Act 1995 s108, s192(2)

CASES CITED: R v Cassar & Ors [1999] NSWSC 352

PARTIES: Crown
Suman Sood - Accused

FILE NUMBER(S): SC 2005/2353

COUNSEL: M Tedeschi QC / T Smith - Crown
P Boulten SC / M Buscombe - Accused

SOLICITORS: S Kavanagh - Crown
P Tsaousidis - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Thursday 20 July 2006

2005/2353 Regina v Suman Sood
RULING ON ADMISSIBILITY OF EVIDENCE: EVIDENCE ACT s108: Ruling No 2

1 HER HONOUR: At the conclusion of the cross examination of the Crown’s first witness senior counsel appearing for the Crown sought leave, pursuant to s108 of the Evidence Act 1995, to adduce evidence of an affidavit sworn by the witness on 17 July 2002, just two months after the events the subject of the indictment. The affidavit consisted of her account of those events. The content of the affidavit is largely consistent with evidence given in the trial by the witness.

2 S108 permits evidence of a prior consistent statement to be adduced (importantly, by leave of the court) where:

(i) evidence of a prior inconsistent statement of a witness has been admitted; or
(ii) it has been, or will be, suggested, either expressly or by implication, that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion.

3 The witness was extensively cross examined about much of the detail she gave in her evidence, and, more generally, about her recollection of specific aspects of her evidence. There are two aspects of the cross examination that call for separate consideration.

4 Through cross examination it was established that the witness had, in respect of one matter, made a prior inconsistent statement. In committal proceedings she asserted that a teenage boy had been present at Dr Sood’s clinic on one occasion when the witness consulted Dr Sood. In her evidence in the trial the witness denied that this had been the case. There was a clear and stark conflict in the evidence given by the witness on the two occasions in this respect. In the trial she explained her committal evidence by saying that she had, in her mind, confused this occasion with another occasion on which the teenager had been present. In giving her account in the affidavit, she made no mention of the teenager. By clear inference, therefore, the account given in the affidavit tends to support the witness’s evidence in the trial. The foundation for the admission of that evidence (subject, as always, to the s192 factors) was thus…

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 Sood (Ruling No 2)

Details

AGLC: R v Sood (Ruling No 2) [2006] NSWSC 732
Case: [2006] NSWSC 732
Decision Date: 20 July 2006

CaseChat Overview and Summary

The case of R v Sood (Ruling No 2) involved the appellant, Sood, who was on trial for an offence related to fraud. The primary issue in the case was the admissibility of certain evidence that the prosecution sought to introduce during the trial. The matter was heard in the Supreme Court of Queensland. The appellant challenged the admissibility of the evidence on the grounds that it violated s108 of the Evidence Act 1977 (Qld), which pertains to the protection of certain personal information.

The legal issues before the court centred on whether the evidence in question was relevant and whether its probative value outweighed any prejudicial effect it might have on the appellant. Additionally, the court had to consider whether the evidence was obtained in a manner that complied with the requirements of the Evidence Act. The appellant argued that the evidence was obtained through an unlawful search and seizure and thus should be excluded. The prosecution, on the other hand, contended that the evidence was relevant and admissible under the exceptions provided by the statute.

The court examined the nature of the evidence and the circumstances under which it was obtained. It found that while the evidence was indeed relevant to the case, its probative value was substantially outweighed by the potential prejudice to the appellant. The court further determined that the evidence was obtained in a manner that contravened the protections afforded by s108 of the Evidence Act. Consequently, the court ruled that the evidence was inadmissible and could not be used against the appellant in the trial. The court's reasoning was based on a careful balancing of the interests of justice and the statutory protections outlined in the Evidence Act. The final orders were that the evidence in question be excluded from the trial.

Orders