DPP v Koopelian [2012] NSWSC 309

DPP v Koopelian [2012] NSWSC 309

Section 171 of the Evidence Act 1995 regulates who may give affidavit or written statement evidence of a document's contents; it does not apply to oral evidence of the contents of an unavailable document tendered under s 48(4). The magistrate erred in law by refusing Constable Roger's oral evidence on the basis he...

Source-derived case information.

Parties
Plaintiff: Director of Public Prosecutions (NSW) Sydney; Defendant: Max Ohanes Koopelian
Jurisdiction
Australia
Judgment Date
02 April 2012
Procedural Posture
Appeal / Judgment on Appeal From Local Court Decision
Outcome
Appeal allowed; orders of Local Court set aside; matter remitted for rehearing before different magistrate; costs to plaintiff; indemnity certificate granted to defendant.
Legal Topics
Proof of Contents of Documents, Unavailability of Documents, Admissibility of Evidence, Misapplication of Statutory Provisions
Criminal Law Evidence Proof of Contents of Documents Unavailability of Documents Admissibility of Evidence Misapplication of Statutory Provisions

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Parties

Director of Public Prosecutions (NSW) Sydney

Plaintiff

Max Ohanes Koopelian

Defendant

Procedural Posture

Appeal / Judgment on Appeal From Local Court Decision

Legal Issues

  1. 1 Whether evidence of the contents of an unavailable document under s 48(4) Evidence Act 1995 must be given by a person who meets the criteria in s 171 Evidence Act 1995.
  2. 2 Whether the magistrate erred in rejecting oral evidence from Constable Roger regarding CCTV footage contents.

Ratio Decidendi

Section 171 of the Evidence Act 1995 regulates who may give affidavit or written statement evidence of a document's contents; it does not apply to oral evidence of the contents of an unavailable document tendered under s 48(4). The magistrate erred in law by refusing Constable Roger's oral evidence on the basis he was not an 'authorized person' under s 171.

Court Disposition

Appeal allowed; orders of Local Court set aside; matter remitted for rehearing before different magistrate; costs to plaintiff; indemnity certificate granted to defendant.

Orders

  • The appeal from the Local Court's order dismissing two charges of 'incite person under 10 years to act of indecency towards the accused' under s 61O(2) Crimes Act 1900 is allowed.
  • The order dismissing proceedings against the defendant is set aside on the basis of legal error regarding admissibility of evidence.