R v Dillon (No 3) [2019] NSWSC 1537

Supreme Court New South Wales

Medium Neutral Citation: R v Dillon (No 3) [2019] NSWSC 1537 Hearing dates: 30 September; 1, 2, 8, 9, 10, 11, 12, 14, 22 October 2019 Date of orders: 22 October 2019 Decision date: 22 October 2019 Jurisdiction: Common Law Before: Campbell J Decision: See paragraphs 1 and 47 Catchwords: CRIMINAL PROCEDURE - Admissibility of evidence - unavailability of witness to give evidence - exceptions to the hearsay rule – probative value substantially outweighed by risk evidence is misleading or confusing. Legislation Cited: Evidence Act 1995 (NSW), ss 32, 55, 65(3), 65(A) 165, Cases Cited: Alzawy v Coptic Orthodox Church [2016] NSWSC 1122 Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Vickers v R [2006] NSWCCA 60 Category: Procedural and other rulings Parties: Regina (Crown) Joshua Dillon (Accused) Representation: Counsel: Neil Adams SC (Crown) Luke Brasch (for the accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Rivera Legal (Accused) File Number(s): 2016/217435

Judgment 1. On Tuesday, 22 October 2019 I made a ruling in relation to the admissibility under s 65(3) of the Evidence Act 1995 (NSW) of a transcript of the evidence given by Mr Waleed Obeid at a committal hearing on 14 December 2017. I announced my ruling and set out my principal findings, reserving my reasons. My ruling was as follows: The evidence of Mr Obeid as recorded in the transcript of the committal proceedings on 14 December 2017 received on the voir dire as exhibit M is not admissible. In coming to that conclusion these are my principal findings: 1. I'm satisfied that Mr Obeid is not available because he is mentally unable to give evidence and it is not reasonably practicable to overcome that inability. In arriving at that conclusion I've relied upon my own observations of the evidence sought to be adduced from him, both before the jury and on the voir dire, and by what I regarded as the impressive evidence of Dr Selim. 2. I am not satisfied the transcript of the committal proceedings, or the recording of it for that matter, is admissible under s 65(3) of the Evidence Act 1995 (NSW) because evidence of the out of court representation by one person, namely in this case the accused, cannot be given by the out of court representation of another person, namely Mr Obeid, notwithstanding s 65(3). In that regard I rely upon the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594 [32] to [35]. 3. I'm not of the view, contrary to Mr Brasch's argument with respect, that the statement attributed to the accused by Mr Obeid is confessional, rather had Mr Obeid been available to give evidence, it would have been admissible under s 66A. However, the primary ground of admissibility, if I may put it that way, of firsthand hearsay is immaterial to the question of whether the proposed tender is itself admissible. And I rely upon the judgment of Simpson J (as her Honour then was) in Vickers v R [2006] NSWCCA 60 at [63]-[64]. 4. If I were wrong about findings 2 and 3, I would exercise my discretion under s 135 of the Evidence Act to exclude the evidence. I accept the evidence has probative value if accepted by the jury, and I'm not persuaded that it is unfairly prejudicial, given the evidence of Mr Al Mousawi. For that reason s 137 is not engaged. However, given Dr Selim's evidence as to the inherent unreliability of Mr Obeid's evidence, both in 2019 and in 2016 at the time he made the conflicting statements, I am of the view that the admission of the transcript of the committal transcript, or recording of the committal proceedings alone would be misleading. 5. That is, as I say, largely because of the issue of unreliability, the consideration that the jury may not have access to the statements of 20 July and 4 August 2016, and the inability of defence counsel to cross‑examine on those inconsistencies. I do not think that this effect could be adequately overcome, even by a detailed caution, or warning, under s 165, for the reason that it is not just a question of unreliability, which would cause the evidence to be misleading.