Regina v Lodhi - [2006] NSWSC 641

CITATION: Regina v Lodhi [2006] NSWSC 641
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE :
27 April 2006

JUDGMENT OF: Whealy J at 1

DECISION: I decline to exclude the evidence

CATCHWORDS: Criminal law - application to exclude evidence - s 137 of Evidence Act (NSW) - risk of unfair prejudice - prejudice occasioned by intense media scrutiny

LEGISLATION CITED: Evidence Act (NSW) 1995

CASES CITED: Ahern v The Queen (1988) 165 CLR at 93, 95 and 99
Masters, Richards & Wunderlich (1992) 59 A Crim R 445 at 454
Smith v The Queen [2001] 206 CLR 650 at 653
Odgers Uniform Evidence Laws 5th Edition at page 114
Papakosmos v The Queen (1999) 196 CLR 297 at 307, 312 and 321-322

PARTIES: Regina v Faheem Khalid Lodhi

FILE NUMBER(S): SC 2005/1094

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

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

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

WHEALY J

THURSDAY 27 April 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - Application on behalf of the accused to exclude “Brigitte” evidence

1 HIS HONOUR: On Thursday 20 April 2006 Mr Boulten SC made an application that certain categories of evidence not be admitted at the trial. The essential nature of the application was that the evidence was not relevant within meaning the s 55 of the Evidence Act (NSW) 1995. Secondly, Mr Boulten argued that, even if the evidence were relevant and otherwise admissible, it should be excluded under s 137 of the Evidence Act.

2 On 21 April 2006 I gave a ruling in the matter. I held that the evidence outlined by Mr Boulten was, in my view, relevant in the proceedings in that it was evidence, if it were accepted, that could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. Secondly, I held that I would not exclude the evidence because I was satisfied that its probative value was not outweighed by the danger of unfair prejudice to the defendant. These are my reasons for the decision I gave on that day.

The “Brigitte” evidence

3 The categories of evidence identified by Mr Boulten may be briefly summarised as follows:

(ii) The evidence of Altaf and Ahmad that they met a man at the flat premises at Boorea Avenue Lakemba who described himself as an architect from Sialkot.
(iii) The evidence of the search of Brigitte’s premises and evidence as to the items found there pursuant to the Search Warrant.
(iv) Evidence that a phone in the name of Brigitte was…

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: [2006] NSWSC 641
Decision Date: 27 April 2006

CaseChat Overview and Summary

The defendant, Lodhi, sought to exclude evidence obtained from a police raid on his home and business premises on the basis that it was obtained in an unfair manner. The police had conducted the raid in the context of an investigation into suspected money laundering and drug trafficking. The case was heard by the Supreme Court of New South Wales, which had to determine the admissibility of the evidence in the context of the defendant's application to exclude it.

The central issue for the court was whether the evidence obtained from the police raid should be excluded under section 137 of the Evidence Act, which provides that evidence obtained in an unfair manner is not to be adduced unless the desirability of admitting it outweighs the undesirability of admitting evidence that has been obtained in an unfair manner. In making this determination, the court had to consider whether the evidence was obtained in a manner that was unfair and, if so, whether the prejudicial effect of the evidence outweighed its probative value. Additionally, the court had to consider the prejudice occasioned by intense media scrutiny in determining whether the evidence should be excluded.

The court found that the evidence obtained from the police raid was not obtained in an unfair manner, and that the prejudicial effect of the evidence did not outweigh its probative value. The court also found that the prejudice occasioned by intense media scrutiny was not sufficient to warrant the exclusion of the evidence. The court held that the evidence was relevant to the charges against the defendant and was therefore admissible. The court further found that the prejudicial effect of the evidence was not so significant as to outweigh its probative value.

The court ordered that the evidence obtained from the police raid be admitted as evidence in the trial. The court further ordered that the defendant's application to exclude the evidence be dismissed. The court found that the evidence was relevant and probative to the charges against the defendant and that its prejudicial effect did not outweigh its probative value. The court further found that the prejudice occasioned by intense media scrutiny was not sufficient to warrant the exclusion of the evidence.

Orders