R v Waldron (No. 2) - [2024] NSWDC 158

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
Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9

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 THE APPLICATION BY THE ACCUSED TO ADDUCE EVIDENCE PURSUANT TO Section 65 OF THE EVIDENCE act 1995

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.
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.”

The amended notice of intention to adduce the evidence became Exhibit 1 on the voir dire.
Exhibit 2 was a deposition by Ms Sugar comprising 246 pages together with an index comprising 41 pages.
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.”
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

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…

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 Waldron (No. 2)

Details

AGLC: R v Waldron (No. 2) [2024] NSWDC 158
Case: [2024] NSWDC 158
Decision Date: 28 March 2024

CaseChat Overview and Summary

In the case of R v Waldron (No. 2), the accused sought to introduce additional evidence during the trial, pursuant to section 65 of the Evidence Act 1995. The nature of the dispute involved the admissibility of specific evidence that the accused argued was crucial to their defence. The matter was heard in the Supreme Court of Victoria. The legal issues at the heart of the case revolved around the interpretation and application of section 65 of the Evidence Act, specifically whether the court should permit the accused to present the additional evidence, and if so, under what conditions.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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 Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9
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