District Court
New South Wales
Medium Neutral Citation: R v Waldron (No. 2) [2024] NSWDC 158 Hearing dates: 26 March 2024 Date of orders: 28 March 2024 Decision date: 28 March 2024 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application granted. For orders see [54]
Catchwords: Accused’s application to adduce evidence pursuant to s65 of the Evidence Act 1995
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Boral Resources Ltd (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling No. 2) [2015] VSC 459
Conway v The Queen (2000) 98 FCR 204; [2000] FCA 461
R v Clark [2001] NSWCCA 494; 123 A Crim R 506
R v Kuzmanovic [2005] NSWSC 771
Category: Procedural rulings Parties: Jon Gordon Waldron (Accused)
Director of Public Prosecutions (the Crown)Representation: Counsel:
Solicitors:
Mr P Lange (Accused)
Mr D Morters SC (the Crown)
P Gibson (Accused)
H Pais (the Crown)
File Number(s): 2015/90725
JUDGMENT on THE APPLICATION BY THE ACCUSED TO ADDUCE EVIDENCE PURSUANT TO Section 65 OF THE EVIDENCE act 1995
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At the conclusion of the accused’s case, counsel sought to adduce evidence of a previous representation made by a person who is unavailable to give evidence, that person being Shannon Sugar.
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The accused tendered an amended notice pursuant to s67 of the Evidence Act 1995 (NSW) (“EA”) dated 22 March 2024 stating that he relies on s65(2) and (8) of the EA. The notice contained the following description of the evidence:-
“The substance of the evidence of the previous representations, which the accused intends to adduce, is contained in the transcript of the deposition of Shannon Sugar, taken on 9 June 2020 in Torrance, California, in the United States of America. The deposition was taken in the matter of Securities and Exchange Commission v Eric Pulier, in the United States District Court, Central District of California, Western division. The transcript of the evidence is attached hereto.
So far as known to the accused, Shannon Sugar has not made any other relevant representations.”
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The amended notice of intention to adduce the evidence became Exhibit 1 on the voir dire.
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Exhibit 2 was a deposition by Ms Sugar comprising 246 pages together with an index comprising 41 pages.
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On the application the accused read the affidavit of his solicitor Phillip Gibson affirmed on 19 March 2024, annexing copies of correspondence sent to Ms Sugar and her attorney in January 2024. On 7 February 2024 that attorney responded by email to Mr Gibson advising, “Ms Sugar will not be speaking with you about this matter.”
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There was no objection to the affidavit and the Crown did not dispute that reasonable notice had been given pursuant to s67 EA and that Ms Sugar was unavailable to give evidence.
The representations
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Ms Sugar was a partner in a public accounting firm in the USA from 2006 and at the time of the deposition had been in that position for…
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- AGLC
- R v Waldron (No. 2) [2024] NSWDC 158
- Case
- [2024] NSWDC 158
- Decision Date
CaseChat Overview and Summary
The court was required to balance the rights of the accused to a fair trial with the need to maintain the integrity and efficiency of the judicial process. It examined the nature of the evidence, the relevance and probative value of the material, and the potential prejudice to the prosecution. The court also considered whether the evidence was available to the accused at an earlier stage of the proceedings and the reasons for the delay in presenting it. After careful deliberation, the court concluded that the evidence in question met the criteria set out in section 65 of the Evidence Act, and that allowing its introduction would not unduly prejudice the prosecution.
As a result, the court granted the accused’s application to adduce the additional evidence. The decision was grounded in the principle that justice should be served by ensuring that all relevant evidence is considered, provided it does not cause substantial unfairness. The orders of the court were to permit the accused to present the additional evidence during the trial, subject to the conditions and limitations deemed appropriate by the court to safeguard the fairness of the proceedings.
Orders
Orders of the court
Application granted. For orders see [54]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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