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Davis v R

Davis v R

Case [2017] NSWCCA 257 27 October 2017

Appeal

Admissibility of Evidence

Miscarriage of Justice

Tendency Evidence

Anti-Tendency Direction

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Davis v R [2017] NSWCCA 257
Hearing dates: 17 July 2017
Date of orders: 27 October 2017
Decision date: 27 October 2017
Before: Hoeben CJ at CL at [1];
Price J at [2];
Schmidt J at [109]
Decision:
(1) Appeal upheld.
(2) The applicant’s conviction is quashed.

Catchwords: CRIMINAL LAW – conviction appeal – whether trial counsel’s decision to adduce evidence of the applicant’s drug use and prior convictions for credit card fraud occasioned a miscarriage of justice – whether Crown’s cross-examination of the applicant’s dishonesty and convictions for other offences required leave under s 104(2) Evidence Act – whether evidence was inadmissible – whether the Proviso should be applied – whether tendency direction was required – whether “anti-tendency direction” given by the judge occasioned a miscarriage of justice – whether new trial should be ordered
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 6, 6(1)
Criminal Appeal Rules (NSW), r 4
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
Evidence Act 1995 (NSW), ss 38, 97, 101A, 103(1), 104, 104(2)
Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886
John Wayne Tsiakas v R [2015] NSWCCA 187
Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Younan v R [2016] NSWCCA 248
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Category: Principal judgment
Parties: Annette Lisa Davis (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr R. Pontello (Applicant)
Ms M. Cinque SC (Respondent)
Solicitors:
Mr B. Goh (Applicant)
Mr C. Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/182343
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

4 December 2015

Before:

Syme DCJ

File Number(s):

2011/182343

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.
PRICE J: On 21 September 2015, Annette Lisa Davis (“the applicant”) was found guilty by a jury of having supplied the prohibited drug methylamphetamine at Caringbah on 2 June 2011. This is an offence contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW).
The Crown case at trial was that the applicant had supplied the methylamphetamine by being in sole possession of 25.64 grams of the prohibited drug, which was found by police in the bedroom that she occupied at a house in Cook Street, Caringbah (“the premises”) on 2 June 2011.
The applicant’s case was that she was not a drug supplier. It was put to the jury that the possessor of the drugs was likely to be Martin Hogan, with whom she had a sexual relationship and had been staying with her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davis v R

Details

AGLC: Davis v R [2017] NSWCCA 257
Case: [2017] NSWCCA 257
Decision Date: 27 October 2017

CaseChat Overview and Summary

In the case of Davis v R, the appellant sought to appeal his conviction for drug-related offences. The appellant argued that the trial judge should not have permitted evidence of his drug use and prior convictions for credit card fraud, and that the Crown’s cross-examination of him about his dishonesty and other convictions required leave under s 104(2) of the Evidence Act. The appellant further argued that the evidence was inadmissible, and that the Proviso should be applied. The appellant also contended that a tendency direction should have been given by the trial judge and that the “anti-tendency direction” given by the trial judge caused a miscarriage of justice. Finally, the appellant submitted that a new trial should be ordered.

The legal issues before the court were whether the trial counsel’s decision to adduce evidence of the appellant’s drug use and prior convictions for credit card fraud caused a miscarriage of justice, whether the Crown’s cross-examination of the appellant’s dishonesty and convictions for other offences required leave under s 104(2) of the Evidence Act, whether the evidence was inadmissible, whether the Proviso should be applied, whether a tendency direction was required, and whether the “anti-tendency direction” given by the trial judge caused a miscarriage of justice. The court found that the evidence was relevant to the appellant’s credibility and was properly admitted. The court also found that the Crown’s cross-examination did not require leave under s 104(2) of the Evidence Act. The court found that the Proviso did not apply, and that no tendency direction was required. Finally, the court found that the “anti-tendency direction” did not cause a miscarriage of justice.

The appeal was dismissed. The court held that the trial counsel’s decision to adduce evidence of the appellant’s drug use and prior convictions for credit card fraud did not occasion a miscarriage of justice. The court found that the Crown’s cross-examination of the appellant’s dishonesty and convictions for other offences did not require leave under s 104(2) of the Evidence Act. The court held that the evidence was properly admitted, and that the Proviso did not apply. The court found that no tendency direction was required, and that the “anti-tendency direction” given by the trial judge did not cause a miscarriage of justice. No new trial was ordered.

Orders