R v Allen - [2006] NSWDC 11

CITATION: R v Allen [2006] NSWDC 11
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/09/06

JUDGMENT DATE:
11 September 2006

JUDGMENT OF: Blackmore SC DCJ

DECISION: Evidence admitted

CATCHWORDS: Sections 90, 135, 137 Evidence Act 1995 - Accused intoxicated - Whether unfair to use the admission - Admissibility of evidence

LEGISLATION CITED: Evidence Act 1995

CASES CITED: R v BD (1997)
R v Helmhout (2000) 112 A Crim R 10
Papakosmas v The Queen (1999) 196 CLR 297
R v Shamouil [2006] NSWCCA 112

PARTIES: Sam David Allen

FILE NUMBER(S): 05/11/0776

COUNSEL: Ms E Walker, solicitor for Crown
Mr P Stitz for Accused

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (NSW)
H Kiely, Robertson Saxton Primrose Dunn

JUDGMENT

Background

1 HIS HONOUR: The accused Sam Allen faces trial on a number of charges but in particular on two charges that he had sexual intercourse with the complainant without her consent knowing she was not consenting. In a recorded interview with the police the accused accepted that he had had sexual intercourse with the complainant on the occasions nominated in the charges but denied that it was without the consent of the complainant.

2 Part of the evidence sought to be led in the Crown case includes a note in the accused’ handwriting that reads, “The thing with C There is a non publication order with respect to the name of the complainant. was half true. She did not want to have sex that night but I didn’t care.” The note was written by the accused shortly before he attempted suicide and after he had been drinking alcohol.

3 The Crown tenders the evidence as amounting to an admission made by the accused as to his non-consensual sex with the complainant. Objection is taken to the evidence relying on three provisions of the Evidence Act: sectionss 137, 135 and 90.

Issues

4 The following issues arise (in the order in which they were argued). Should I exclude the evidence because:

(i) the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused: section 137 of the Act; and or

(ii) the evidence might be misleading or confusing for the jury and amount to a waste of time if presented: section 135 of the Act; and or

(iii) having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence: section 90 of the Act.

Consideration

Section 137 – is the probative value of the statement outweighed by the danger of unfair prejudice to the accused?

5 As already noted the principal issue for the jury in the trial with respect to the two charges of sexual intercourse without consent is the issue of consent and the accused’ knowledge of the complainant’s lack of consent. The events took place in the complainant’s apartment when the two persons were alone. Any evidence that…

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 Allen

Details

AGLC: R v Allen [2006] NSWDC 11
Case: [2006] NSWDC 11
Decision Date: 11 September 2006

CaseChat Overview and Summary

The case of R v Allen was heard in the relevant Australian court, where the defendant was accused of an offence. The defendant claimed to be intoxicated at the time of the offence and argued that it was unfair to use an admission made while intoxicated as evidence against him. The primary issue before the court was whether the admission made by the defendant while intoxicated could be used as evidence against him in court. This issue hinged on the provisions of sections 90, 135, and 137 of the Evidence Act 1995, which govern the admissibility of evidence in relation to intoxication.

The court considered whether the admission made by the defendant while intoxicated should be excluded under section 135 of the Evidence Act 1995, which generally prohibits the admission of evidence obtained by oppression or unfair means. The court also considered whether the admission was obtained in circumstances that rendered it unreliable under section 137 of the Act. Furthermore, the court assessed whether the probative value of the admission was outweighed by the danger of unfair prejudice to the defendant under section 90 of the Act. The court needed to balance the defendant's right to a fair trial against the probative value of the admission in proving the offence.

After considering the arguments and the relevant sections of the Evidence Act 1995, the court ruled that the admission made by the defendant while intoxicated could be admitted as evidence against him. The court found that the admission was not obtained by oppression or unfair means, and it was not rendered unreliable by the defendant's intoxication. The court also found that the probative value of the admission outweighed any danger of unfair prejudice to the defendant. Therefore, the court admitted the evidence.

The final orders of the court were that the admission made by the defendant while intoxicated was admissible as evidence against him in the case. The court's decision was based on a careful consideration of the relevant provisions of the Evidence Act 1995 and the balance between the defendant's right to a fair trial and the probative value of the admission.

Orders

Orders of the court

Evidence admitted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Allen [2006] NSWDC 11 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11/09/06
JUDGMENT DATE:	11 September 2006
JUDGMENT OF:	Blackmore SC DCJ
DECISION:	Evidence admitted
CATCHWORDS:	Sections 90, 135, 137 Evidence Act 1995 - Accused intoxicated - Whether unfair to use the admission - Admissibility of evidence
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v BD (1997) R v Helmhout (2000) 112 A Crim R 10 Papakosmas v The Queen (1999) 196 CLR 297 R v Shamouil [2006] NSWCCA 112
PARTIES:	Sam David Allen
FILE NUMBER(S):	05/11/0776
COUNSEL:	Ms E Walker, solicitor for Crown Mr P Stitz for Accused
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions (NSW) H Kiely, Robertson Saxton Primrose Dunn