R v Amante - [2016] NSWDC 432

District Court

New South Wales

Medium Neutral Citation: R v AMANTE [2016] NSWDC 432
Hearing dates: 24 October 2016
Date of orders: 24 October 2016
Decision date: 24 October 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Tendency evidence inadmissible; trial by Judge alone granted.

Catchwords: Criminal –Tendency evidence, judge alone trial
Legislation Cited: Evidence Act 1995
Criminal Procedure Act 1986
Cases Cited: R v Shamouil [2006] NSWCCA 112
R v XY [2013] NSWCCA 121
AW v The Queen [2009] NSWCCA 1
R v Fletcher (2015) 156 A Crim R 308
R v Zhang (2005) 158 A Crim R 504
R v Ford [2009] NSWCCA 306
DXJ v DPP (2012) 215 A Crim R 349
Elomar & Ors v R [2014] NSWCCA 30
Texts Cited: Odgers Uniform Evidence Law
Category: Procedural and other rulings
Parties: Regina
Michael Amante - Accused
Representation: Counsel:
Mr P Hogan - Crown
Ms Bagot - Accused

File Number(s): 2015/187454

Judgment

Applications for a judge alone trial and for Crown to call tendency evidence

HIS HONOUR: Michael Amante has been arraigned in this court today on two counts. Count 1 alleges against him that he on 4 January 2015 at Mascot supplied a prohibited drug, namely, 81.3 grams of methylamphetamine. Count 2 alleges that the same date at the same place he supplied a prohibited drug, namely, 380 grams of cannabis. He has pleaded not guilty to those charges.
The first matter I was requested to do today when the matter was assigned to me, although I was not put on notice that this was to happen, was to determine whether the Crown should be permitted to lead evidence of an alleged tendency on the part of the accused to commit one of the two offences with which he is charged arising out of events at another time. I will summarise from the Crown case statement the character of the Crown case and what I understand to be the particular material relied upon by the Crown as evidence of the claimed tendency in the Tendency Notice that was served upon the accused at some date after 10 October 2016.
At 6 am on Sunday 4 January, police attached to a Highway Patrol Unit stopped a BMW sedan that was driven by a person called Chantelle Karanikolas and in which the accused Michael Amante was a passenger. Various checks were undertaken and the driver was submitted to a breath test which achieved a negative result. The reason the car was stopped, although this would be totally irrelevant at any trial in relation to the drug supply matters, was that it was believed the vehicle in which the accused and the driver were travelling had been reported as stolen around about midnight on 24 December 2014. A search of the motor vehicle was conducted and inside the motor vehicle was found firstly an ASIC brand shoe bag in the rear passenger’s side footwell, beside it was a white plastic shopping bag which in turn contained a vacuum…

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 Amante

Details

AGLC: R v Amante [2016] NSWDC 432
Case: [2016] NSWDC 432
Decision Date: 24 October 2016

CaseChat Overview and Summary

The case before the court involved a defendant, referred to as Amante, who was on trial for various criminal charges. The dispute centred around the admissibility of certain evidence that the prosecution intended to present as tendency evidence, as well as the procedural issue of whether the trial should be conducted by a judge alone rather than a jury. The matter was heard in the Supreme Court.

The primary legal issues for the court to determine were whether the proposed tendency evidence was admissible and if the trial should proceed with a judge alone rather than a jury. Tendency evidence is generally admissible to show a propensity of the accused to commit crimes of a particular type. However, its admissibility must be balanced against potential prejudice to the defendant. Additionally, the court had to consider whether the nature of the evidence and the potential for prejudice warranted a trial by judge alone, which is a less formal proceeding and can be more expeditious.

In addressing these issues, the court found that the proposed tendency evidence was indeed prejudicial and did not meet the necessary threshold for admissibility, as it would likely sway the jury unfairly against the defendant. The court also determined that the circumstances of the case, particularly the nature of the evidence and the potential for prejudice, justified a trial by judge alone. This decision was made to protect the defendant's right to a fair trial and to ensure that the evidence was evaluated with the appropriate level of scrutiny.

The court's final orders were that the tendency evidence would not be admitted in the trial, and that the trial would proceed with a judge alone. This decision was made to safeguard the defendant's right to a fair trial and to ensure that the evidence was evaluated with the appropriate level of scrutiny.

Orders

Orders of the court

Tendency evidence inadmissible; trial by Judge alone granted.

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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Medium Neutral Citation:	R v AMANTE [2016] NSWDC 432
Hearing dates:	24 October 2016
Date of orders:	24 October 2016
Decision date:	24 October 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Tendency evidence inadmissible; trial by Judge alone granted.
Catchwords:	Criminal –Tendency evidence, judge alone trial
Legislation Cited:	Evidence Act 1995 Criminal Procedure Act 1986
Cases Cited:	R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 AW v The Queen [2009] NSWCCA 1 R v Fletcher (2015) 156 A Crim R 308 R v Zhang (2005) 158 A Crim R 504 R v Ford [2009] NSWCCA 306 DXJ v DPP (2012) 215 A Crim R 349 Elomar & Ors v R [2014] NSWCCA 30
Texts Cited:	Odgers Uniform Evidence Law
Category:	Procedural and other rulings
Parties:	Regina Michael Amante - Accused
Representation:	Counsel: Mr P Hogan - Crown Ms Bagot - Accused
File Number(s):	2015/187454