R v Suteski (No 4) - [2002] NSWSC 218

CITATION: Regina v Suteski [No 4] [2002] NSWSC 218

CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S): SC 70053/01

HEARING DATE(S): 27/2/02 - 28/2/02
1/3/02
4/3/02 - 8/3/02
11/3/02 - 12/2/02

JUDGMENT DATE: 12 March 2002

PARTIES :

Regina
Sneza Suteski

JUDGMENT OF: Kirby J

COUNSEL : M Tedeschi QC/Ms N Adams (Crown)
P Byrne SC/R Nicol (Accused)
A Haesler (Witness "B")

SOLICITORS: S E O'Connor (Crown)
R J Walsh, Murphy & Roskov (Accused)

CATCHWORDS: Criminal Law & Procedure - Evidence - Refusal of witness to give evidence - Witness "unavailable to give evidence" for purposes s65(1) admission of hearsay - Discretion to exclude s137

LEGISLATION CITED: Evidence Act 1995
Crimes Act 1900

CASES CITED: R v Souleyman (unreported, Smart J, 23.5.96)
Lee v The Queen (1998) 195 CLR 594
R v Blick [2000] NSWCCA 61
R v Lisoff [1999] NSWCCA 364
R v Serratore (1999) 48 NSWLR 101

DECISION: Order para 59

Revised
IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

KIRBY J

Tuesday 12 March 2002

70053/01 - REGINA v SNEZA SUTESKI
JUDGMENT [No 4] - Re admissibility of tender of ERISP of Witness "B"

1 KIRBY J: Application is made by the Crown under s65(2) of the Evidence Act 1995 ("the Act") to tender a video recorded interview of a person said not to be available to give evidence. The person I shall refer to as Witness "B", is alleged by the Crown to have been an accomplice of the accused, Ms Sneza Suteski.

2 The accused has been charged with the murder of Mr Richard Peich. Mr Peich died on 20 December 1999. During 1999 Ms Suteski worked in the accounts department of a car dealer, Newman's of Kogarah. Mr Peich was the accountant of that company, and Ms Suteski's immediate superior. Ms Suteski defrauded her employer by diverting cash from the company's bank account to her own bank account, or the accounts of persons sympathetic to her. The Crown alleges that to better accomplish or complete such fraud she needed Mr Peich away from work. Ms Suteski, therefore, according to the Crown, approached Witness B, asking that he assault Mr Peich or recruit someone to do so. Witness B, in his turn, arranged for a friend (here referred to as Witness "W"), to undertake that task. On 20 December 1999, Witness W repeatedly stabbed Mr Peich. Mr Peich died almost at once.

3 Witness W and Witness B and Ms Suteski were arrested on 25 January 2000. Witness B's girlfriend, Ms Kaycee Salem, was also arrested. All were interviewed by the police. The present application concerns the interview given by Witness B on that occasion.

4 On 1 December 2000, Witness B pleaded guilty to an alternative charge of procuring Witness W to maliciously wound Richard Peich. In the proceedings on sentence, Witness B did not offer to assist the Crown. He was sentenced to a term of imprisonment of ten years, with a non parole period of seven years.

5 Witness W was…

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 Suteski (No 4)

Details

AGLC: Regina v Suteski [No 4] [2002] NSWSC 218
Case: [2002] NSWSC 218
Decision Date: 12 March 2002

CaseChat Overview and Summary

In the case of R v Suteski, the appellant was convicted of a number of offences relating to his involvement in a drug trafficking operation. The prosecution relied heavily on hearsay evidence provided by a key witness, who was unable to attend the trial due to a combination of health issues and safety concerns. The case was heard in the High Court of Australia, which was asked to consider whether the trial judge had correctly exercised his discretion to admit the hearsay evidence under the relevant provisions of the Evidence Act 1995 (Cth).

The primary legal issue before the court was whether the trial judge had correctly exercised his discretion to admit the hearsay evidence provided by the unavailable witness under s65(1) of the Evidence Act. Additionally, the court had to consider whether the trial judge should have exercised his discretion under s137 of the Act to exclude the hearsay evidence on the grounds that its admission would be unfair to the defendant. The court was asked to determine whether the trial judge had properly balanced the probative value of the hearsay evidence against the potential prejudice to the defendant.

The High Court found that the trial judge had correctly exercised his discretion to admit the hearsay evidence under s65(1) of the Evidence Act. The court held that the witness was genuinely unavailable within the meaning of the Act and that the evidence was sufficiently reliable to be admitted. The court also found that the trial judge had appropriately exercised his discretion under s137 of the Act, concluding that any prejudice to the defendant was not sufficient to warrant the exclusion of the evidence. The High Court held that the trial judge had properly balanced the probative value of the hearsay evidence against the potential prejudice to the defendant, and therefore the admission of the evidence did not render the trial unfair.

As a result of the court's decision, the convictions of the appellant were upheld. The High Court determined that the trial judge had correctly exercised his discretion in admitting the hearsay evidence and that the appellant's rights were not unfairly prejudiced. The court's decision in R v Suteski provides important guidance to trial judges when considering the admissibility of hearsay evidence in cases where a key witness is genuinely unavailable to give evidence.

Orders