R v Saurav MAHAY; Michael Dean KHAN, Dushand RANA [2010] NSWDC 342

New South Wales District Court

CITATION: R v Saurav MAHAY; Michael Dean KHAN, Dushand RANA [2010] NSWDC 342

JUDGMENT DATE: 24 August 2010

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: I reject the questions.

CATCHWORDS: CRIME - jury trial - specially aggravated detain for ransom - application by the Crown to call evidence from a witness about whether he recognises a voice on a telephone intercept - relevance - whether capacity of witness to recognise voice is different from capacity of jury - witness and accused speak Punjabi

CASES CITED: R v Korgbara (2007 71 NSWLR 187 Smith v The Queen (2001) 206 CLR 650

Regina PARTIES: Saurav Mahay Michael Dean Khan Dushand Rana

FILE NUMBER(S): 2008/82064; 2008/211508; 2008/254927

Mr S De Silva for the Director of Public Prosecutions COUNSEL: Ms K Stares for Mr Khan Ms ST Hall for Mr Rana

SOLICITORS: Mr WJ Sandilands for Mr Mahay

JUDGMENT

1. The Crown Prosecutor wishes to ask a witness called Vikram Singh to give evidence about whether he recognises one of the voices on a telephone intercept. The Crown alleges that one of the voices will be that of an accused in this case, Mr Rana.

2. Ms Hall who appears for Mr Rana objects to that evidence being led. She has a number of bases for her objection but the first is relevance. She relies upon the majority judgment of the High Court in Smith v The Queen (2001) 206 CLR 650. Her point is that the witness Vikram Singh is in a position where his capacity to recognise the voice is so little in difference from the jury's capacity that his evidence is not relevant to the fact in issue. The fact in issue Ms Hall says is whether, relevantly, her client detained a person said to be the victim of an offence in a kidnapping. Relevant to a fact in issue is whether her client was a participant in this phone call.