Regina v Lodhi - [2006] NSWSC 648

Reported Decision:
163 A Crim R 526
199 FLR 342

New South Wales

Supreme Court

CITATION: Regina v Lodhi [2006] NSWSC 648

JUDGMENT DATE :
11 May 2006

JUDGMENT OF: Whealy J at 1

DECISION: I am satisfied that there is no basis under ss 135 or 137 of the Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name "Faheem".

CATCHWORDS: Criminal law - admissions by accused: s 81 Evidence Act (NSW) 1995 - exception to hearsay rule (s 65(1) and 65(2)(c) Evidence Act) - availability of witness - evidence admissible for non-hearsay purpose - s 136 Evidence Act - Limitation order

LEGISLATION CITED: Criminal Code Act (Commonwealth) 1995
Evidence Act 1995

CASES CITED: Cross on Evidence (6th Australian Edition)
Regina v Ward, Andrews & Broadley (English Court of Appeal (Criminal Division) 20 December 2000)
R v Esposito (1998) 45 NSWLR 442
R v Houghton (1998) 45 NSWLR 426
R v Ambrosoli [2002] 55 NSWLR 603
R v Serratore (1999) 48 NSWLR 101 at 108
R v Parkes [2003] 147 A Crim R 450 at 459

PARTIES: Regina v Faheem Khalid Lodhi

FILE NUMBER(S): SC 2005/1094

COUNSEL: Mr R Maidment SC; Mr G. Bellew - Crown
Mr P. Lahey - Accused

SOLICITORS: DPP (Commonwealth) - Crown
Michael Doughty - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

THURSDAY 11 May 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - Application on behalf of the accused to exclude “admissions” made by the accused to Messrs Ahmad and Altaf.

1 HIS HONOUR: The accused is charged with a series of offences under the Anti-Terrorism provisions of the Criminal Code Act (Commonwealth) 1995.

2 There has been a series of extensive pre-trial applications relating, inter alia, to the admissibility of evidence sought to be led at the trial. One of the issues arose very late in the piece, shortly before the jury was empanelled and prior to the Crown opening. This issue related to evidence given on 22 March 2006 by two witnesses during earlier pre-trial applications. The evidence had been given without objection at that time. Mr Boulten SC indicated shortly before empanelment that he now wished to object to the evidence being led at trial. On 1 May 2006, after hearing extended argument, I ruled that I would allow the evidence to be admitted but only on a limited basis. These are my reasons.

3 The circumstances surrounding the evidence may be briefly stated. A significant issue in the trial of the accused is his relationship with one Willie Brigitte. There is evidence to show that between May and October 2003, the accused was in contact with Willie Brigitte in circumstances where, the Crown maintains, there was established a covert or illicit relationship between them. The Crown says, for example, that the accused established a mobile phone service in a false name and that one of the purposes 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 Regina v Lodhi

Details

AGLC: Regina v Lodhi [2006] NSWSC 648
Case: [2006] NSWSC 648
Decision Date: 11 May 2006

CaseChat Overview and Summary

The case involved Regina versus Lodhi, where the accused faced charges of conspiracy to import commercial quantities of a controlled drug. The matter was heard in the District Court of New South Wales. The key issue in the case was the admissibility of a witness's out-of-court statement, which was offered as evidence under the exceptions to the hearsay rule. The prosecution argued that the statement was admissible as a non-hearsay purpose under section 136 of the Evidence Act, and the accused objected on the basis that the witness was available to testify.

The court considered the legal framework under which the evidence was sought to be admitted. It examined whether the statement was an admission by the accused within the meaning of section 81 of the Evidence Act and whether it fell within the hearsay exception outlined in section 65(2)(c). The court found that the statement could be admitted for a non-hearsay purpose because it was relevant to the charge against the accused. The availability of the witness was not a bar to the admission of the statement, as it could still serve a non-hearsay purpose. The court also noted that the probative value of the evidence outweighed any potential prejudice to the accused.

Consequently, the court ruled that the statement was admissible under the non-hearsay purpose exception. The prosecution was permitted to use the witness's statement as evidence against the accused. The court determined that the probative value of the evidence substantially outweighed any prejudicial effect it might have on the fairness of the proceedings. The accused's objection to the admissibility of the statement was overruled. The court concluded that the evidence was relevant and could assist in proving the conspiracy charge. The trial proceeded with the statement being admitted as evidence.

Orders