Slater (a pseudonym) v The Queen - [2021] VSCA 153

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0053

JODIE SLATER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To avoid the possibility of prejudice in the applicant’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGE:	PRIEST and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 May 2021
DATE OF JUDGMENT:	7 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 153
JUDGMENT APPEALED FROM:	[DPP v Slater] (Unreported, County Court of Victoria, Judge Lacava, 14 May 2021)

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CRIMINAL LAW – Interlocutory appeal – Application for review of refusal to certify that interlocutory decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal – Whether PDF documents created from data on servers located overseas admissible – Whether contents of the documents offend the rule against hearsay – Whether documents ‘foreign material’ – Documents not admissible – Evidence Act 2008 ss 48, 59 and 69 – Foreign Evidence Act 1994 (Cth) s 25.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr O P Holdenson QC with Mr J O’Connor	Kaczmarek Grigor Lawyers
For the Respondent:	Mr Y K Hardjadibrata	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
SIFRIS JA:

Introduction

An indictment filed in the County Court charges the applicant with trafficking in a drug of dependence[2] (charges 1, 2 and 3), and with importing a border controlled drug in a marketable quantity[3] (charge 4).[4] She has pleaded not guilty to each charge. A jury is yet to be empanelled.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AC.
[3]Criminal Code 1995 (Cth), 307.2(1).
[4]Charges 1 and 3 relate to methylamphetamine; charge 2 to cocaine; and charge 4 to methamphetamine.

The gist of the case that the prosecution will aim to make at trial may be gleaned from the Amended Summary of Prosecution Opening, dated 14 October 2020 (framed by counsel for the respondent in this Court):

The prosecution alleges that the [applicant] was engaged in the business of trafficking the drugs methylamphetamine and cocaine. She trafficked methylamphetamine and cocaine over several months in mid-2013. The methylamphetamine and cocaine that the [applicant] trafficked was imported from overseas. The [applicant] resumed her business of trafficking methylamphetamine in February 2014. In that month a supply of methamphetamine for her business was intercepted by customs officers. The periods when the [applicant] was importing and trafficking in drugs coincided with periods when her boyfriend [named] was in prison. The prosecution alleges that the [applicant] imported and trafficked the drugs by means of the internet black market or ‘Dark Web’. She used the website ‘Silk Road’ to purchase methylamphetamine and cocaine from overseas under the account moniker ‘HighTime’. The drugs imported were then advertised and sold in Australia using the account moniker ‘OZHigh’. The drugs purchased from overseas were imported in parcels sent by way of the international postal service. The drugs were packaged and concealed in ‘MYLAR’ or moisture barrier…

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 Slater (a pseudonym) v The Queen

Details

AGLC: Slater (a pseudonym) v The Queen [2021] VSCA 153
Case: [2021] VSCA 153
Decision Date: 7 June 2021

CaseChat Overview and Summary

The appellant, Slater, sought an interlocutory appeal against the refusal of the primary judge to certify that the interlocutory decision was of sufficient importance to justify it being determined on an appeal. The crux of the dispute was the admissibility of certain documents created from data stored on servers located overseas. The central issue was whether these documents were admissible and, if so, whether their contents were subject to the hearsay rule or if they were classified as foreign material. This appeal was heard in the High Court of Australia.

The legal issues the court had to address included the admissibility of the PDF documents under the Evidence Act 2008, specifically sections 48, 59, and 69, and the Foreign Evidence Act 1994. It was essential to determine whether the contents of the documents were hearsay and, if so, whether they fell under the hearsay exception. Additionally, the court had to consider if the documents qualified as foreign material, which would exempt them from the hearsay rule. The appellant argued that the documents were admissible and did not violate the hearsay rule, while the respondent contended the opposite.

The court ruled that the documents in question were not admissible as evidence. It found that the contents of the documents did indeed constitute hearsay and were not exempt under the hearsay exceptions in the Evidence Act 2008. Furthermore, the court held that the documents were not foreign material as defined by the Foreign Evidence Act 1994. The court concluded that the primary judge was correct in refusing to certify the interlocutory decision as of sufficient importance to warrant an appeal. The appeal was dismissed, and the decision of the primary judge was upheld.

The court's final orders were that the application for review of the interlocutory decision be dismissed, and the refusal to certify the interlocutory decision as of sufficient importance to justify an appeal was affirmed. The documents created from the data on overseas servers were deemed inadmissible, and the appeal was rejected.

Orders