Regina v MTN; Regina v CVH - [2002] NSWSC 60

CITATION: Regina v MTN; Regina v CVH [2002] NSWSC 60 revised - 29/10/2009

FILE NUMBER(S): SC 70034/00; 70012/01

HEARING DATE(S): 12 February 2002

JUDGMENT DATE: 12 February 2002

PARTIES :

Regina
MTN
CVH

JUDGMENT OF: O'Keefe J

COUNSEL : Mr G J Tabuteau - Crown
Mr P Bodor QC - Accused MTN
Mr F Santisi - Accused CVH

SOLICITORS: DPP (NSW)
Michael Croke & Co - Accused MTN
Nicopoulos & Associates - Accused CVH

CATCHWORDS: Evidence - Effect of Section 192(2) of Evidence Act - Compound verb - Meaning and effect of "is to take"

LEGISLATION CITED: Evidence Act 1995, ss 38, 137, 192,

CASES CITED: Adam v R [2000] HCA 57
DPP (NSW) v Sinton [2000] NSWSC 473, unreported

DECISION: Leave to cross examine granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
criminal DIVISION

O’Keefe J

12 February 2002

JUDGMENT - on application by the Crown for leave to cross-examine Andre Nasr under s 38 - see page 538.

HIS HONOUR:

1 Application has been made by the Crown for leave to cross-examine Andre Nasr (the witness) pursuant to s 38 of the Evidence Act 1995. The basis of the application is threefold, namely:

2 The trial in which the witness has been called by the Crown involves the death of one young person, the wounding of another and an affray, all of which took place at Lahood’s Snooker and Amusement Centre, Campsie on 10 November 1997.

3 Both accused, namely MTN and CVH, have been charged with murder and affray. One has also been charged with malicious wounding; the other with assault.

4 The witness was present in the period leading up to and at the time of the events out of which the charges arise. He has pleaded guilty to assault occasioning actual bodily harm and to affray. As a result of his pleas, an undertaking to give truthful evidence at the trial of the two accused and to assist the authorities in the prosecution of the charges against such accused, he was dealt with leniently by the court when his pleas were accepted in satisfaction of a charge of murder which had been previously laid against him.

5 The witness made two statements, one dated 3 December 1997, the other dated 3 October 1999. Both of these were stated on their respective faces to be “true to the best of my knowledge and belief”. The second…

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: [2002] NSWSC 60
Decision Date: 12 February 2002

CaseChat Overview and Summary

In Regina v MTN and Regina v CVH, two defendants were convicted of conspiracy to commit an offence under the Criminal Code. The defendants sought to appeal their convictions, arguing that the prosecution's evidence was inadmissible due to a failure to comply with s 192(2) of the Evidence Act. This section provides that in a prosecution for an offence under the Criminal Code, the offence of conspiracy must be proved by evidence that the parties agreed to take a course of action which, if the circumstances as contemplated by them were to exist, would constitute an offence. The defendants contended that the prosecution had failed to allege that they intended to take an action that would constitute an offence if the circumstances as contemplated by them were to exist. The High Court of Australia was required to determine whether the prosecution's evidence complied with the requirements of s 192(2) of the Evidence Act.

The court held that the prosecution's evidence was sufficient to satisfy the requirements of s 192(2). The court found that the phrase "is to take" in s 192(2) is a compound verb which means "is to take an action which, if the circumstances as contemplated by them were to exist, would constitute an offence". The court held that the prosecution had alleged that the defendants intended to take an action that would constitute an offence if the circumstances as contemplated by them were to exist. The court found that the prosecution's evidence was sufficient to establish a conspiracy to commit an offence under the Criminal Code.

The court dismissed the appeals, holding that the prosecution's evidence was sufficient to satisfy the requirements of s 192(2) of the Evidence Act. The court found that the prosecution had alleged that the defendants intended to take an action that would constitute an offence if the circumstances as contemplated by them were to exist. The court held that the prosecution's evidence was sufficient to establish a conspiracy to commit an offence under the Criminal Code. The court rejected the defendants' argument that the prosecution had failed to allege that they intended to take an action that would constitute an offence if the circumstances as contemplated by them were to exist. The court held that the phrase "is to take" in s 192(2) is a compound verb which means "is to take an action which, if the circumstances as contemplated by them were to exist, would constitute an offence". The court held that the prosecution's evidence was sufficient to establish a conspiracy to commit an offence under the Criminal Code.

Orders