R v AC

Case [2018] NSWCCA 130 27 June 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v AC [2018] NSWCCA 130
Hearing dates: 13 June 2018
Date of orders: 13 June 2018
Decision date: 27 June 2018
Before: Meagher JA at [1];
Bellew J at [1];
Fagan J at [1]
Decision:
1. Appeal allowed.
2. Set aside order 1 made on 21 May 2018.
3. Direct that paragraph 97(1)(a) of the tendency rule does not to apply to the tendency evidence which is the subject of the tendency notice served on 20 and 21 March 2018 notwithstanding the Crown’s failure to give notice of its intention to adduce that evidence within the time provided in accordance with s 99.
4. Order that the respondent’s notice of motion filed 22 March 2018 be dismissed.

Catchwords: EVIDENCE – exclusion of tendency evidence – Crown failure to serve tendency notice within relevant time – primary judge refused to dispense with the notice requirements for service – where no explanation for the failure to serve the notice – where evidence had substantial probative value not outweighed by any relevant prejudice – where late service of tendency notice will not cause any prejudice to the accused – whether under Evidence Act, s 100(1) the Court should dispense with the notice requirement
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F(3A)
Director of Public Prosecutions Act 1986 (NSW), s 7(1)
District Court Rules, Part 53 r 10C
Evidence Act 1995 (NSW), ss 97, 99, 100, 102, 198
Uniform Civil Procedure Rules, r 31.5
Cases Cited: Andelman v The Queen [2013] VSCA 25; (2013) 227 A Crim R 81
BM v R [2017] NSWCCA 253
Clancy v Director of Public Prosecutions [2018] NSWCA 102
El-Haddad v R (2014) 88 NSWLR 93; [2015] NSWCCA 10
Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
IMM v The Queen (2016) 257 CLR 300
Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
Martin v State of NSW [2002] NSWCA 337
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36
R v Harker [2004] NSWCCA 427
R v Reardon [2002] NSWCCA 203; 186 FLR 1
Stanoevski v R (2002) 202 CLR 115; [2001] HCA 4
Tomko v Palasty (No 2) (2008) 71 NSWLR 61 at [55]; [2007] NSWCA 369
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Category: Principal judgment
Parties: Regina (Crown)
AC (Respondent)
Representation:
Counsel:

S Dowling SC and J Tunks (Crown)
P Singleton (Respondent)

Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Agent for N Steinberg (Respondent)

File Number(s): 2017/50193
Publication restriction: Non-publication order made by District Court on 20 April 2018 under Court (Suppression and Non-publication Act) 2010 (NSW) in relation to identity of complainants.

HEADNOTE

[This headnote is not to be read as part of the judgment]

The…

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 v AC

Details

AGLC: R v AC [2018] NSWCCA 130
Case: [2018] NSWCCA 130
Decision Date: 27 June 2018

CaseChat Overview and Summary

The defendant, AC, was charged with drug trafficking and faced a trial in the Supreme Court of Victoria. The Crown intended to introduce evidence of AC’s prior drug-related activities to establish a tendency towards involvement in such crimes. However, the Crown failed to serve the required notice of intention to adduce tendency evidence within the specified timeframe. The primary judge initially refused to allow the evidence, citing the Crown’s non-compliance with the notice requirements under the Evidence Act 1995 (Vic). The Crown appealed this decision, arguing that the failure to serve the notice should be excused due to the absence of any prejudice to AC.

The appeal court was required to determine whether the primary judge was correct in refusing to admit the evidence due to the Crown’s failure to serve the notice. The court examined whether the Crown's late notice could be excused under s 100(1) of the Evidence Act, considering factors such as the probative value of the evidence, the potential prejudice to the accused, and any prejudice to the fairness of the proceedings. The court also assessed if the late notice would prejudice AC, given the circumstances of the case.

In allowing the appeal, the court found that the tendency evidence had substantial probative value, and the failure to serve the notice did not cause any prejudice to AC. The court held that the primary judge should have exercised discretion to dispense with the notice requirement. The probative value of the evidence outweighed any potential prejudice to the accused, and the late notice did not prejudice the fairness of the proceedings. Consequently, the court ordered that the evidence be admitted.

The final orders included the admission of the Crown's evidence of AC's prior drug-related activities, allowing the appeal, and directing the primary judge to consider the evidence in the trial proceedings. The court emphasised that the primary judge should have exercised discretion under s 100(1) of the Evidence Act to admit the evidence, given the circumstances of the case.

Orders