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 1. 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. 2. 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." 1. The amended notice of intention to adduce the evidence became Exhibit 1 on the voir dire. 2. Exhibit 2 was a deposition by Ms Sugar comprising 246 pages together with an index comprising 41 pages. 3. 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." 4. 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.