R v Selim [2007] NSWSC 322

New South Wales Supreme Court

CITATION : R v Selim [2007] NSWSC 322

JUDGMENT DATE : 10 April 2007

JUDGMENT OF : Fullerton J

DECISION : Evidence admitted

CATCHWORDS : EVIDENCE - Admissibility

LEGISLATION CITED : Evidence Act 1995

PARTIES : James Selim (Acc) The Crown (Cth)

FILE NUMBER(S) : SC 2006/2744

COUNSEL : P Byrne SC/G Bashir/S Buchen (Acc) L Robberds QC/R Bromwich (Crown Cth)

SOLICITORS : Aitken McLachlan Thorpe (Acc) Commonwealth Director of Public Prosecutions (Crown)

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

FULLERTON J

TUESDAY 10 APRIL 2007

2006/2744 R v SELIM

JUDGMENT HER HONOUR: 1 Mr Byrne SC makes application that certain aspects of the further evidence of Mr Bussing be excluded. Reliance is placed upon either or both of sections 135 and 137 of the Evidence Act 1995 in support of the application. 2 On the afternoon of Monday 2 April 2007- the nineteenth day of the trial - Mr Bussing was called by the Crown to give evidence. He was to be the last witness called in the Crown case save only for the potential recall of Federal Agent Banach. Federal Agent Banach gave evidence immediately preceding Mr Bussing being called. The ordering of these witnesses by the Crown was at the express request of Mr Byrne for reasons which I have no doubt reflect the significance of this body of evidence to the facts in issue in the trial.

3 I will have something to say about the recall of Federal Agent Banach as the circumstances giving rise to this being necessary are inextricably linked to the circumstances giving rise to the present application. This complex of circumstances also provide some explanation for the application to effectively exclude the balance of Mr Bussing's evidence being made at this very late stage in the Crown case and whilst Mr Bussing is in the witness box. While it appears that the Crown had some notice of a challenge to the admissibility of Mr Bussing's evidence beyond a certain point, it was not a matter that had been brought to my attention until that stage had been reached in his examination in chief where he was to give evidence of the results of his interrogation of the HPLC computer- the computer that is nominated in the indictment as the computer containing the data that was alleged to have been destroyed at the accused's instigation.