R v Saurav MAHAY; Michael Dean KHAN, Dushand RANA [2010] NSWDC 343

R v Saurav MAHAY; Michael Dean KHAN, Dushand RANA [2010] NSWDC 343

It was reasonably open on the evidence to find that a common purpose existed between Mr Khan and his co-accused regarding the kidnapping, and that, except for the first call, the intercepted telephone calls were in furtherance of that common purpose. The first call constituted only a narrative account and was not in furtherance of the purpose, so was excluded. The discretion under s 135 did not warrant exclusion of the balance, which were admissible.

Parties
Accused: Saurav Mahay; Accused: Michael Dean Khan; Accused: Dushand Rana
Jurisdiction
Australia
Judgment Date
27 August 2010
Procedural Posture
Criminal / Voir Dire on Admissibility of Evidence
Outcome
Partial admissibility of evidence
Legal Topics
Admissibility of Co Accused's Statements, Admissions Under Evidence Act 1995 S 87, Common Purpose, Kidnapping, Discretion Under Evidence Act 1995 S 135
Criminal Law Evidence Admissibility of Co Accused's Statements Admissions Under Evidence Act 1995 S 87 Common Purpose Kidnapping Discretion Under Evidence Act 1995 S 135

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Parties

Saurav Mahay

Accused

Michael Dean Khan

Accused

Dushand Rana

Accused

Procedural Posture

Criminal / Voir Dire on Admissibility of Evidence

Legal Issues

  1. 1 Whether intercepted telephone calls by co-accused are admissible as admissions against Mr Khan under s 87 of the Evidence Act 1995
  2. 2 Whether the communications were in furtherance of a common purpose
  3. 3 Whether discretion under s 135 of the Evidence Act 1995 should be exercised to exclude the evidence

Ratio Decidendi

It was reasonably open on the evidence to find that a common purpose existed between Mr Khan and his co-accused regarding the kidnapping, and that, except for the first call, the intercepted telephone calls were in furtherance of that common purpose. The first call constituted only a narrative account and was not in furtherance of the purpose, so was excluded. The discretion under s 135 did not warrant exclusion of the balance, which were admissible.

Court Disposition

Partial admissibility of evidence

Orders

  • Evidence of first telephone call not admitted against Mr Khan
  • Balance of intercepted telephone calls are admissible against Mr Khan