AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 30 April 2021

R v Sun

[2021] NSWDC 837

Drugs
CRIMINAL PROCEDURE — TRIAL — VOIR DIRE

Citation: R v Sun [2021] NSWDC 837
Court: District Court of New South Wales
Date: 30 April 2021
Judge: Bennett SC DCJ

Background

The accused stood trial on two counts under the Drug Misuse and Trafficking Act 1985: supplying methylamphetamine in a quantity exceeding the indictable threshold, and supplying methylamphetamine on three or more occasions within thirty consecutive days for financial or material reward. The alleged offending occurred in September 2018 in and around Burwood, NSW.

The accused's defence rested significantly on duress. He contended that a civilian participant in a controlled operation (referred to throughout as "Witness A") had coerced him through threats of violence against himself and his family. He also attributed responsibility to another Crown witness, Ms Song Han, claiming he acted solely under her direction.

To support the duress case, the defence called a witness, Haidar Al-Jeezai, who had been held at John Morony Correctional Centre with the accused. The Crown applied to exclude portions of Al-Jeezai's evidence after it emerged during trial. The ruling in this judgment addresses that application and the accused's related applications to adduce the evidence before the jury.

  • Whether evidence of a murder committed at John Morony Correctional Centre on 19 June 2017 was admissible to establish that Witness A was a person of influence and fear in the custodial setting.
  • Whether Al-Jeezai's account of what the deceased had told him about an argument with Witness A (said to involve tobacco and drugs) was admissible, and if so on what basis.
  • Whether Al-Jeezai's opinion that Witness A commanded respect and could cause harm to other inmates was admissible as lay opinion evidence.
  • Whether any hearsay exception under ss 65 or 67 of the Evidence Act 1995 applied to the deceased's out-of-court representations.

Decision

The court identified two distinct evidentiary problems with Al-Jeezai's evidence concerning the murder at John Morony Centre. First, to the extent the evidence was directed at establishing Witness A's influence and dangerousness through proximity to the murder, it was confusing and misleading as presented, and the court was satisfied it would be unfair to the Crown to allow it before the jury under s 135 of the Evidence Act 1995.

On the hearsay question, the court found that Al-Jeezai's account of what the deceased had told him about an argument with Witness A was hearsay under s 59 of the Evidence Act 1995, not second-hand hearsay as the Crown submitted. Because the maker of the representation had died, s 65 of the Act was potentially enlivened, including the discretionary gateway in s 65(8). However, the court declined to exercise that discretion. The evidence was inherently confused, lacked any clear connection to the murder, and the required written notice to the Crown under s 67(1) and s 67(4) had not been given.

As to the lay opinion evidence, the court found that what Al-Jeezai saw and heard of Witness A could, at most, support an inference that Witness A moved about with a degree of confidence. It was not sufficient to ground a lay opinion that Witness A wielded genuine influence or posed a threat to others. The application to place that opinion before the jury was refused.

Orders Made

• Refused the accused's application to lead evidence of the murder at John Morony Centre on 19 July 2017
• Refused the application to lead evidence of the opinion asserted by Haidar Al Jeezai of Witness A

Key Takeaways

  • A hearsay statement made by a person who has since died may enliven s 65 of the Evidence Act 1995, but the discretion under s 65(8) will not be exercised where the evidence is confused, lacks probative connection to the fact in issue, and no written notice under s 67 has been served on the opposing party.
  • Where evidence is technically probative of a fact in issue but is confusing and misleading as presented, a court may exclude it under s 135 of the Evidence Act 1995 on the ground that it would be unfair to a party to allow it before the jury.
  • Lay opinion evidence requires a sufficient foundation in the witness's direct observation; the District Court held that a witness's general sense that another person projected confidence was not enough to support an admissible opinion about that person's capacity to threaten or harm others.
  • The classification of hearsay as "second-hand" rather than "first-hand" affects which exceptions are available, and courts will scrutinise that characterisation carefully before determining the applicable gateway.
  • An accused's failure to cross-examine a Crown witness on matters central to the defence case, and a withdrawal of an earlier exclusion application, formed part of the procedural context the court noted in assessing the subsequent evidentiary applications.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Evidence Act 1995 (NSW), ss 59, 65, 65(8), 67(1), 67(4), 135, 138

Cases:
- Decision Restricted [2021] NSWDC 834
- R v Tangi (No 12) [2020] NSWSC 547
- R v Walter Gover [2000] NSWCCA 303
- Vickers v R [2006] NSWCCA 60
- Walton v R [1989] HCA 9; 166 CLR 283