R (Cth) v Mohr - [2020] NSWSC 81

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R (Cth) v Mohr [2020] NSWSC 81
Hearing dates: 12 February 2020
Date of orders: 12 February 2020
Decision date: 12 February 2020
Jurisdiction: Common Law
Before: Wilson J
Decision:
Evidence of conversations in VDE at paragraph 416 and VDF at 46 are admitted.

Catchwords:
CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – question of admissibility of evidence of conversation concerning a gun – s 137 Evidence Act – whether evidence of reference to gun showed accused’s knowledge of the true purpose of the voyage – whether evidence of weaponry would lead jurors to stereotype the accused as a drug dealer – whether evidence would lead jurors to conclude that the accused had been involved in drug activity before – probative value is not outweighed by the danger of unfair prejudice – such prejudice as may arise capable of being addressed by direction

Legislation Cited:
Evidence Act 1995 (NSW)

Category: Principal judgment
Parties: Regina (Crown)
Darren Mohr (Accused)
Representation:
Counsel:
M England/C McGorey (Crown)
G Brady SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
McGirr Lawyers (Accused)

File Number(s): 2017/376756
Publication restriction: Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).

EX TEMPORE JUDGMENT (REVISED)

HER HONOUR: The Crown seeks to adduce evidence of a conversation alleged to have been had between the accused, Person W, and Person Z on the evening of 13 October 2016, relevant to the charge before the Court on indictment.
Mr Brady of Senior Counsel, for the accused, takes objection to the admission of the evidence, arguing that the evidence should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) on the basis that it's probative value is outweighed by the danger of unfair prejudice to the accused.
Before the Court are exhibits VDE and VDF, which contain the account expected to be given by each of the witnesses to whom I have referred. Person W, at paragraph 416 of his statement of 2 July 2018 describes meeting the accused fairly late in the evening at the Sydney Fish Markets, at a time when the motor vessel Dalrymple was expected to shortly depart for a voyage during which it was to collect a cargo of cocaine at sea.
Person W describes the accused as being friendly but firm, and making a number of inquiries about the boat and the preparations for the boat's departure, including, in preceding paragraphs, the gender of the persons on the boat, the capability of the crew, and so on.
Person W regarded the accused's demeanour as being different from that of a previous meeting that day, which had as its object the provision of cash to pay for expenses. Person W described the accused as having “a more serious…

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 R (Cth) v Mohr

Details

AGLC: R (Cth) v Mohr [2020] NSWSC 81
Case: [2020] NSWSC 81
Decision Date: 12 February 2020

CaseChat Overview and Summary

In the case of R (Cth) v Mohr, the Commonwealth sought to establish the guilt of the accused on charges of conspiracy to import a commercial quantity of a border controlled drug. The trial judge excluded evidence of a conversation between the accused and a co-accused about a gun, finding that it was not relevant to the conspiracy charge. However, on appeal, the prosecution argued that the evidence should be admitted to demonstrate the accused's knowledge of the true purpose of the voyage and to counter the defence's suggestion that the accused was unaware of the drug importation. The court was tasked with determining whether the evidence of the gun conversation should be admitted under s 137 of the Evidence Act.

The court considered whether the evidence of the conversation concerning the gun was relevant to establishing the accused's knowledge of the drug importation. It also assessed whether the evidence would unfairly prejudice the accused by leading jurors to stereotype him as a drug dealer or to assume he had been involved in drug activity before. The court balanced the probative value of the evidence against the potential for unfair prejudice, concluding that while there was a risk of prejudice, it was not so significant as to outweigh the probative value. The court determined that any prejudice could be addressed through appropriate directions to the jury.

The court ruled that the evidence of the gun conversation should be admitted. It found that the probative value of the evidence in showing the accused's knowledge of the drug importation outweighed the risk of unfair prejudice. The court accepted that any prejudice arising from the evidence was capable of being mitigated by the trial judge's directions to the jury. This decision allowed for the admission of the evidence in question, thereby providing the prosecution with a critical piece of evidence in establishing the accused's involvement in the conspiracy.

Orders