Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198

New South Wales Supreme Court

CITATION : Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198

15-17/02/06 20-24/02/06 27-28/02/06 HEARING DATE(S) : 01-03/03/06 06-09/03/06 14-17/03/06 20-21/03/06

JUDGMENT DATE : 29 March 2006

JURISDICTION : Common Law Division Criminal List

JUDGMENT OF : Kirby J

DECISION : Leave to tender statement refused.

CATCHWORDS : Criminal Practice & Procedure - Application under s108(3) Evidence Act 1995 - cross examination of witness in support of alibi by Crown - implication that reconstruction or evidence the result of suggestion - application for leave s108(3) Evidence Act to tender prior consistent evidence - whether statement addresses credibility attack - whether leave under s192(2) should be given.

LEGISLATION CITED : Evidence Act 1995

Graham v The Queen (1998) 195 CLR 606 CASES CITED : DBG (2002) 133 A Crim R 227 BD (1997) 94 A Crim R 131

Regina PARTIES : Mostafa Abdulkader John Hohaia

FILE NUMBER(S) : SC 2005/1091; 2005/1092

T R Hoyle SC (Crown) COUNSEL : G Scragg (Abdulkader) P McGrath (Hohaia)

R McMurtrie - DPP (Crown) SOLICITORS : Murphy's Lawyers G R Adler - LAC

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

JUSTICE DAVID KIRBY

Wednesday 29 March 2006

2005/1091 REGINA v Mostafa ABDULKADER 2005/1092 REGINA v John HOHAIA

JUDGMENT [No 1] - Application by Mostafa Abdulkader under s108(3) of the Evidence Act 1995 1 KIRBY J: During the course of a trial for murder, application was made on behalf of Mostafa Abdulkader, one of the accused, for leave under s108(3) of the Evidence Act 1995 ("the Act") to tender a statement of a witness, Robert Dibb. After argument, I made a ruling, refusing leave. I stated that I would give my reasons later. I now set out those reasons.