Supreme Court New South Wales Medium Neutral Citation: R v AA (No 2) [2019] NSWSC 1890 Hearing dates: 16 December 2019 Date of orders: 16 December 2019 Decision date: 16 December 2019 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: The Court directs that the evidence be applied only to the extent that it is relevant in the determination of a sentence. Catchwords: SENTENCE – Evidence – rules of evidence not to apply – expert report not in usual form admitted on limited relevancy basis Legislation Cited: Evidence Act 1995 (NSW), ss 4(3), 4(4)(2) United Nations Security Council Resolution 1713 Category: Procedural rulings Parties: Regina (Crown) AA (a pseudonym) (Offender) Representation: Counsel: A McGrath (Crown) J Roy (Offender) Solicitors: Director of Public Prosecutions (Cth) (Crown) Watsons Solicitors & Barristers (Offender) File Number(s): 2016/321937 Publication restriction: Suppression orders made under s 7(1) of the Court Suppression and NPO Act 2010 (NSW) EX TEMPORE Judgment 1. HIS HONOUR: I first deal with the issue raised in relation to s 4 of the Evidence Act 1995 (NSW) (hereinafter "the Act"). Section 4 of the Act determines the applicability of the Act to particular proceedings. 2. In relation to the issues involving a sentencing hearing, s 4(4)(2) of the Act provides that the Act applies only if the Court directs that the law of evidence applies, and I think it should really read disjunctively, namely, if the Court specifies in the direction that the law of evidence applies only in relation to a specified matter that the direction has effect accordingly. 3. In relation to s 4(3), the Court must, that is, is required I construe, to make such a direction if a party to the proceeding applies for it, that is the case in this situation, and in the Court's opinion the proceeding involves proof of that fact and that fact is or will be significant in determining a sentence to be imposed in the proceedings. 4. Nice issues arise as to significance. It seems to me, in the scheme of matters that significance has an import which is greater than simply relevant. Therefore, "significant" means of importance. I am not satisfied that I am required by the terms of s 4(3) to make such a direction and, as a consequence, I do not make that direction. 5. Having made that comment, I take into account the fact that the witness, Dr Shanahan was asked, somewhat unusually, whether, if something "jumps out at him", he should mention it in his report. More importantly, he was asked to address how, notwithstanding the compulsory nature of the ratification or implementation of United Nations Security Council Resolution 1713, the activities of Iran that attracted the sanctions had relevant security implications for Australia, such that it would be in Australia's interest to support the sanctions regime. 6. It seems to me the report does that. The report does not comply with the usual form that an expert report takes but I will, subject to the obvious qualifications that may exist from the nature of the cross-examination that has occurred on the voir dire, take the report into account to show the activities of Iran, which had relevant security implications for Australia, such that it would be in Australia's interest to support the sanctions regime and which activities attracted the sanctions. To the extent that is relevant in the determination of a sentence, the report will be taken into account to that effect. ********** Amendments 21 April 2020 - Jurisdiction amended 09 December 2021 - Pseudonym revised. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2021