DPP v Koopelian [2012] NSWSC 309

Supreme Court New South Wales

Medium Neutral Citation: DPP v Koopelian [2012] NSWSC 309 Hearing dates: 2 April 2012 Decision date: 02 April 2012 Jurisdiction: Common Law Before: Adamson J Decision: 1. Order that the appeal pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 from the orders made on 26 July 2011 by Day LCM at Penrith Local Court dismissing two charges of "incite person under 10 years to act of indecency towards the accused" under s 61O(2) of the Crimes Act 1900 against the defendant, be allowed. 2. Order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 that the order of Day LCM made on 26 July 2011 at Penrith Local Court dismissing proceedings against the defendant, in relation to two charged offences of "incite person under 10 years to act of indecency towards the accused" under s 61O(2) of the Crimes Act 1900, be set aside on the basis that the Magistrate erroneously held that evidence pursuant to s 48(4) of the Evidence Act 1995 may only be given by a person who meets the criteria set out in s 171 of the Evidence Act 1995 and on that basis failing to admit the evidence of Constable Roger. 3. Order that the matter be remitted to Penrith Local Court to be dealt with according to law by a magistrate other than Day LCM. 4. Order that the defendant pay the plaintiff's costs of and incidental to the summons. I grant to the defendant an indemnity certificate in respect of the appeal pursuant to s 6(1) of the Suitors' Fund Act 1951. Catchwords: PRACTICE AND PROCEDURE - evidence - meaning of "document" - whether evidence of the contents of a document must be given by a person who meets the criteria set out in s 171 of the Evidence Act Legislation Cited: - Crimes Act 1900 - Crimes (Appeal and Review) Act 2001 - Evidence Act 1995 - Supreme Court Rules 1970 Category: Principal judgment Parties: - Director of Public Prosecutions (NSW) Sydney (Plaintiff) - Max Ohanes Koopelian (Defendant) Representation: Counsel: - MW Anderson (Plaintiff) - M Dennis (Defendant) Solicitors: - Solicitor for Public Prosecutions (NSW) - Nyman Gibson Stewart File Number(s): 2011/00366604