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Jones v R

Jones v R

Case [2014] NSWCCA 280 1 December 2014

Admissibility of Evidence

Tendency Evidence

Causation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jones v R [2014] NSWCCA 280
Hearing dates: 10 October 2014
Decision date: 01 December 2014
Before: Gleeson JA at [1]
Schmidt J at [2]
Bellew J at [3]
Decision:
1) Leave to appeal on the fourth issue is refused.
2) Leave to appeal on each of the first, second and third issues is granted.
3) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination – where primary judge found that there was no evidence of concoction or contamination – whether such finding open on the evidence

CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination - relevance of the application of common law principles in determining the admissibility of tendency evidence
CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination – whether concoction or contamination were matters going to reliability and credibility – whether they were matters which were relevant to a determination of the probative value of the evidence
Legislation Cited: Crimes Act 1900 NSW
Criminal Appeal Act 1912 NSW
Evidence Act 1995 NSW
Court Suppression and Non-publication Orders Act 2012
Cases Cited: AE v R [2008] NSWCCA 52
BJS v R [2011] NSWCCA 239
BJS v R [2013] NSWCCA 123
BP v R; R v BP [2010] NSWCCA 303
DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568
Director of Public Prosecutions v Boardman [1975] AC 421
DSJ v R; NS v R [2012] NSWCCA 9; (2012) 84 NSWLR 758
FB v R; R v FB [2011] NSWCCA 217
Hoch v The Queen [1988] HCA 57; (1988) 165 CLR 292
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
Saoud v R [2014] NSWCCA 136
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
Category: Principal judgment
Parties: Marc Andrew Jones - Applicant
Regina – Respondent
Representation:
Counsel:
D G Dalton SC - Applicant
T Smith – Respondent
Solicitors:
Mark Mulock & Co - Applicant
Solicitor for Public Prosecutions - Respondent

File Number(s): 2012/394475
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

24 February 2014

Before:

Judge Blackmore SC

Judgment

GLEESON JA: I agree with Bellew J.
SCHMIDT J: I agree with Bellew J.
BELLEW J: MAJ (“the applicant”) seeks leave, pursuant to s. 5F of the Criminal…

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 Jones v R

Details

AGLC: Jones v R [2014] NSWCCA 280
Case: [2014] NSWCCA 280
Decision Date: 01 December 2014

CaseChat Overview and Summary

The case of Jones v R involved the applicant who was indicted on multiple counts of sexual assault involving three separate complainants. The Crown opposed the separation of counts and relied upon tendency evidence. The central issue was whether the primary judge's finding that there was no evidence of concoction or contamination was open on the evidence. The court had to determine the relevance of the application of common law principles in deciding the admissibility of the tendency evidence. Additionally, the court examined whether the concepts of concoction or contamination were matters that went to reliability and credibility or if they were factors that were relevant to determining the probative value of the evidence.

The court held that the primary judge's finding that there was no evidence of concoction or contamination was indeed open on the evidence. The court emphasised the importance of applying common law principles when determining the admissibility of tendency evidence. It was noted that while concoction and contamination are indeed matters that may go to reliability and credibility, they are not the sole determinants of admissibility. The probative value of the evidence must also be considered, and the court must weigh the probative value against any prejudicial effect. In this case, the court found that the primary judge had correctly assessed the evidence and had not erred in finding no evidence of concoction or contamination.

The court's decision upheld the primary judge's ruling and rejected the applicant's appeal. The court found that the primary judge's determination was open on the evidence and that the common law principles applied were appropriate in assessing the admissibility of the tendency evidence. The court concluded that the probative value of the evidence outweighed any prejudicial effect, and therefore, the evidence was admissible. The final orders of the court were to dismiss the applicant's appeal against conviction and sentence.

Orders