R (Cth) v Petroulias (No. 6) [2006] NSWSC 1422

R (Cth) v Petroulias (No. 6) [2006] NSWSC 1422

Because the voir dires were discretionary procedures controlled by the Court, and because the Accused bore the initial onus on the s.138 objections, the hearing should proceed by receiving the transcripts and relevant documentary material from earlier proceedings, while allowing only focused further cross-examination of available key witnesses where necessary for the judge's independent assessment. Mr O'Neill, Federal Agent Wills, Federal Agent Dametto and Mr Morgan were to be made available by the Crown, but Federal Agent Wildman, being in Hong Kong and with no identified further areas of cross-examination, need not be produced absent cogent reasons.

Jurisdiction
Australia
Judgment Date
12 December 2006
Procedural Posture
Criminal Proceedings Concerning Objections to Admissibility of Evidence Under S.138 Evidence Act 1995 / Pre Trial Application Before Retrial for Procedure on Voir Dires
Outcome
The Court adopted a mid-position: transcripts and relevant materials from earlier proceedings would be received; specified available witnesses were to be made available for limited further cross-examination; Federal Agent Wildman was not required to be produced absent cogent reasons; and the voir dires were to be...
Legal Topics
['voir Dire' 'improperly Obtained Evidence' 's.138 Evidence Act 1995' 'telephone Intercept Warrants' 'search Warrants' 'retrial Procedure' 'cross Examination of Witnesses' 'use of Transcript From Earlier Proceedings']
['criminal Law' 'evidence'] ['voir Dire' 'improperly Obtained Evidence' 's.138 Evidence Act 1995' 'telephone Intercept Warrants' 'search Warrants' 'retrial Procedure' 'cross Examination of Witnesses' 'use of Transcript From Earlier Proceedings']

Case Brief

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Procedural Posture

Criminal Proceedings Concerning Objections to Admissibility of Evidence Under S.138 Evidence Act 1995 / Pre Trial Application Before Retrial for Procedure on Voir Dires

Legal Issues

  1. 1 ['Whether the Accused should have voir dires before the retrial concerning objections under s.138 Evidence Act 1995 to warrant-derived material and to the evidence of Richard Llewellyn Morgan.' 'Whether Crown witnesses who gave evidence on equivalent voir dires before Sully J should be recalled for further cross-examination before the retrial judge.' 'Whether transcripts of evidence from the earlier voir dires, committal proceedings and first trial should be received on the voir dires.' 'Whether Federal Agent Wildman, who was in Hong Kong, should be produced for further cross-examination absent identified additional areas of questioning.']

Ratio Decidendi

Because the voir dires were discretionary procedures controlled by the Court, and because the Accused bore the initial onus on the s.138 objections, the hearing should proceed by receiving the transcripts and relevant documentary material from earlier proceedings, while allowing only focused further cross-examination of available key witnesses where necessary for the judge's independent assessment. Mr O'Neill, Federal Agent Wills, Federal Agent Dametto and Mr Morgan were to be made available by the Crown, but Federal Agent Wildman, being in Hong Kong and with no identified further areas of cross-examination, need not be produced absent cogent reasons.

Court Disposition

The Court adopted a mid-position: transcripts and relevant materials from earlier proceedings would be received; specified available witnesses were to be made available for limited further cross-examination; Federal Agent Wildman was not required to be produced absent cogent reasons; and the voir dires were to be...

Orders

  • ['The transcript of witnesses on the earlier voir dires, and if relevant the transcript of evidence of those witnesses at the committal proceedings and at the first trial, ought be received on the voir dires together with relevant documentary material of the type tendered before Sully J.' "Mr O'Neill, Federal Agent...