R v Waldron (No.1) - [2024] NSWDC 157

District Court

New South Wales

Medium Neutral Citation: R v Waldron (No.1) [2024] NSWDC 157
Hearing dates: 4 March 2024
Date of orders: 4 March 2024
Decision date: 08 March 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Application refused

Catchwords:
Accused’s application to exclude evidence; Leave given to witness to refresh memory pursuant to s32 of the Evidence Act (1995); Whether evidence given was hearsay and should be excluded

Legislation Cited:
Crimes Act 1900 (Cth)
Evidence Act 1995 (NSW)
Evidence Act 2008 (VIC)
Fair Work Act 2019 (Cth)

Cases Cited:
Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43
CSR Ltd & Anor v Amaca Pty Ltd (2016) 62 VR 359; [2016] VSCA 320
R v Woods [2023] NSWSC 1163

Category: Procedural rulings
Parties: Jon Gordon Waldron (Accused)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
Mr P Lange (Accused)
Mr D Morters SC (the Crown)
Solicitors:
P Gibson (Accused)
H Pais (the Crown)

File Number(s): 2015/90725

JUDGMENT on APPLICATION BY THE ACCUSED TO EXCLUDE EVIDENCE of A witness

Introduction

The accused was arraigned on 5 February 2024 on an Indictment containing 10 Counts. Counts 1 to 7 concern allegations that the accused received payments alleged to be made corruptly pursuant to s249B (1) of the Crimes Act 1900 (NSW). Counts 8 to 10 concern allegations that the accused aided and abetted Keith Hunter to corruptly receive payments pursuant to
s249B(1) and s249F(1) of the Crimes Act 1900 (NSW). Both the accused and Mr Hunter were at all material times employed by CBA in senior positions in technology and operations and IT engineering. The payments are said to arise as a reward to them for facilitating a third-party supplier of software, Service Mesh Inc. ("SMI"), to enter into supply contracts with CBA.
SMI was based in the USA. It started supplying software services to CBA in 2009 and in 2011 it signed a Master Service Agreement with CBA. The principal shareholder was Mr Pulier who it is alleged developed a close working relationship with the accused.
In October 2013, SMI entered into an equity purchase agreement ("EPA") with Computer Sciences Corporation ("CSC"), with a first payment of US $93m. The EPA provided that, during an earnout period between 1 January 2013 and 31 January 2014, if SMI achieved revenue exceeding US$20mil CSC would pay SMI's shareholders an additional "earnout payment" equal to approximately ten times that additional revenue.
The Crown alleges that contracts entered into between CBA and SMI in December 2013 (TDs 19-21) and January 2014 (TDs 17, 22-29) were facilitated by the accused and Mr Hunter to enable SMI to increase its revenue during the earnout period above US$20 million dollars, to the benefit of SMI shareholders who received an earnout payment of over US$98 million, the largest payment going to Mr Pulier. The Crown case is that Pulier made payments in 2014 via a Mr Goldstein, or a corporation registered by him (ACE Inc.), to both the accused and Mr Hunter as…

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: [2024] NSWDC 157
Decision Date: 08 March 2024

CaseChat Overview and Summary

The case of R v Waldron (No.1) involved the accused, Mr. Waldron, who sought to exclude certain evidence from his trial. The nature of the dispute centred around the admissibility of evidence obtained from a witness who had been permitted to refresh their memory under section 32 of the Evidence Act 1995. The case was heard in the relevant court of criminal jurisdiction, which is not specified in the provided text. The accused argued that the evidence given by the witness, following the use of a document to refresh their memory, was hearsay and therefore should be excluded from the trial.

The court was required to determine whether the evidence obtained from the witness, after they had refreshed their memory using a document, constituted hearsay and whether it should be excluded under the hearsay rule. The accused contended that the evidence was hearsay because it was a statement made outside of the proceedings and was being used to prove the truth of the matter asserted. The prosecution, on the other hand, argued that the evidence was not hearsay and was admissible as it was not being used to prove the truth of the matter asserted, but rather to refresh the witness's memory and assist them in giving evidence.

The court carefully considered the arguments presented by both parties and determined that the evidence obtained from the witness, after they had refreshed their memory using a document, was not hearsay and was therefore admissible. The court held that the evidence was not being used to prove the truth of the matter asserted but rather to assist the witness in recalling facts and providing a more accurate account of the events in question. Consequently, the accused's application to exclude the evidence was refused. No further orders were made in the text provided.

Orders

Orders of the court

Application refused

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.

Medium Neutral Citation:	R v Waldron (No.1) [2024] NSWDC 157
Hearing dates:	4 March 2024
Date of orders:	4 March 2024
Decision date:	08 March 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Application refused
Catchwords:	Accused’s application to exclude evidence; Leave given to witness to refresh memory pursuant to s32 of the Evidence Act (1995); Whether evidence given was hearsay and should be excluded
Legislation Cited:	Crimes Act 1900 (Cth) Evidence Act 1995 (NSW) Evidence Act 2008 (VIC) Fair Work Act 2019 (Cth)
Cases Cited:	Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43 CSR Ltd & Anor v Amaca Pty Ltd (2016) 62 VR 359; [2016] VSCA 320 R v Woods [2023] NSWSC 1163
Category:	Procedural rulings
Parties:	Jon Gordon Waldron (Accused) Director of Public Prosecutions (the Crown)
Representation:	Counsel: Mr P Lange (Accused) Mr D Morters SC (the Crown) Solicitors: P Gibson (Accused) H Pais (the Crown)
File Number(s):	2015/90725