R v Tabbah; R v Tiriaki (No 2)

[2014] NSWSC 565

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tabbah; R v Tiriaki (No 2) [2014] NSWSC 565
Hearing dates:	9 April 2014
Decision date:	09 April 2014
Jurisdiction:	Common Law - Criminal
Before:	Schmidt J
Decision:	Evidence admissible.
Catchwords:	EVIDENCE - hearsay evidence - evidence admissible - reasons
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina Salim Tabbah Wassim Tiriaki
Representation:	Counsel: Mr T Hoyle SC (Crown) Mr P Lange (Tabbah) Mr C Waterstreet (Tiriaki) Solicitors: Director of Public Prosecutions (Crown) Hanna Legal (Tabbah) Elie Rahme & Associates (Tiriaki)
File Number(s):	2012/73478 2012/73453
Publication restriction:	No

Judgment

1. I rejected the Crown's objection to questions asked of the victim's mother, Jennifer Hedges, about the matters dealt with at paragraph 22 of her statement, where she recounted two conversations. The first with Corey Marks, a friend of her son Mathew Hedges, who told her that he had been speaking to a guy named "Omar", who had been speaking to the "Alammedine's"[sic], who thought that there were some "stuff", which she understood to mean drugs, at her home, where she lived with Mathew. The second conversation was with Mathew Hedges. She told him what Corey had said to her. Mathew told her that he wasn't worried.

1. The evidence as to what Corey Marks told Mrs Hedges was hearsay. Hearsay evidence is not admissible, s 59 of the Evidence Act 1995 (NSW) providing that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

1. Finally in contention was whether s 59 applied to the evidence. Mr Waterstreet submitted for Mr Tiriaki that he sought to tender the evidence not to prove the truth of the facts asserted by Corey Marks, but for the non hearsay purpose of establishing that Mathew Hedges told his mother that he was not concerned, which was admissible under s 60 of the Evidence Act. That section provides:

"60 Exception: evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).

(3) However, this section does not apply in a criminal proceeding to evidence of an admission."

1. What Mathew Hedges said was not an admission, which is defined in the Dictionary to the Evidence Act to mean:

"a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person's interest in the outcome of the proceeding."

1. Mathew Hedges is not a party to the proceedings. He was the victim who it is alleged was murdered by the two accused.

1. The Crown opened the case to the jury on the basis that on the night that Mathew Hedges was murdered, various drugs and drug paraphernalia were found at his home. That evidence has not yet been led. Mrs Hedges has given evidence of Mathew Hedges' drug use, but both she and his girlfriend Jessica Moffatt have denied any knowledge of the drugs found at the home where they both lived with Mathew Hedges at the time of his death or that he or they were dealing in drugs, although Mrs Hedges gave evidence that he had sold some marijuana to fund his personal use.

1. For Mr Tiriaki, it was explained in opening that he denied killing Mathew Hedges, or having any involvement in activities leading up to his death; that he was not present or even in the vicinity when Mathew Hedges was killed; that he was used to dump the material which was later the subject of DNA testing, including the gun, on which much of the circumstantial case against him rested; that the technical evidence could not prove the case against him; that the evidence would disclose that the reason that Mathew Hedges was killed was something to do with what had happened while Mathew Hedges was in prison; that Mr Tiriaki was not in prison; that he did not know Mathew Hedges; that Mathew Hedges was a drug dealer; and that he had a number of enemies who had reason to see him out of the way.

1. Mr Tiriaki sought to rely on this evidence not to establish the truth of what Corey Marks told Mrs Hedges about the Alammedines' belief as to drugs being kept at her house. He sought to rely on what Mathew Hedges said to his mother, to help establish that he was a drug dealer, submitting that an inference could be drawn from what he told his mother that he was keeping drugs at the house.

1. I concluded that the evidence was relevant and admissible under s 60 for that purpose. Whether that inference will be drawn is a matter for the jury to determine.

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Decision last updated: 12 May 2014