R v Andrew Dean McIntosh - [2007] NSWDC 36

CITATION: R v Andrew Dean McIntosh [2007] NSWDC 36

HEARING DATE(S): 13/2/07-28/2/07

JUDGMENT DATE:
28 February 2007

JURISDICTION: NSW

JUDGMENT OF: Knox SC DCJ

DECISION: Application for separate trials dismissed; Tendency evidence of W and C is not permitted to be led; Evidence led in relation to each count is permitted to be relied on as tendency evidence in relation to the other counts; The videos (VD 6 and 7) can also be relied on as tendency evidence in relation to counts one, two and three.

CATCHWORDS: application for separate trials - objections to records of interviews - tendency/coincidence evidence - objections to videos

LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Criminal Procedure Amendment (Sexual & Other Offences) Act 2006 (NSW)
Evidence (Children) Act 1997 (NSW)
Judiciary Act 1903 (Cth)
Children (Criminal Proceedings) Act 1987 (NSW)
Evidence Act 1995 (NSW)

CASES CITED: R v NZ [2005] NSWCCA 278
R v RN (2005) NSWCCA 413
R v Chami (2002) 128 A Crim R 428; [2002] NSWCCA 136
R v RH (2004) NSWCCA 427
R v Middis NSWSC unrep 27 March 1991
R v Baartman unrep. CCA NSW 6 October, 1994
R v Demirock (1976) VR 244 at 254
Dejesus v R (1986) 68 ALR 1
R v Bikic [2000] NSWCCA 106
R v Watkins [2005] NSWCCA 164
R v F [2002] NSWCCA 9
R v Fletcher [2005] NSWCCA 338
Gipp v The Queen (1998) 194 CLR 106
R v Milton [2004] NSWCCA 195
Tully v The Queen [2006] HCA 56
R v AH (1997) 42 NSWLR 702
Qualitieri v The Queen [2006] NSAWCCA 95
R v Leonard [2006] NSWCCA 267
R v Fletcher (2005) 156 A Crim R 308
R v Zhang (2005) 158 A Crim R 504
R v Phillips [2006] HCA 4
Phillips v South Australian Police (1994) S4843
Crowe v Graham (1968) 121 CLR 375

PARTIES: R;
Andrew Dean McIntosh

FILE NUMBER(S): 06/11/0904

COUNSEL: Mr S. Flood
Mr A. Radojev

SOLICITORS: Mr. D. Mayr (Commonwealth DPP)
Mr C. Lee

- 50 -

JUDGMENT

- Issues arising on Voir Dire and related rulings

- Application for separate trials

- Objections to Records of Interviews

- Tendency/Coincidence evidence

- Objections to videos; particular videos

Indictment

1 The accused (Mr Andrew Dean McIntosh) is charged pursuant to an indictment dated 13 February 2007 which contains the following counts:

That the accused:

a) Between 10 April 2005 and 27 April 2005 did in Vanuatu, being a place outside Australia, commit an act of indecency on a person under 16 years of age, being NRK.

b) Between 10 April 2005 and 27 April 2005 did in Vanuatu, being a place outside Australia, commit an act of indecency on a person under 16 years of age, being MTK.

c) On or about 8 April 2005 at Crows Nest, in the State of New South Wales, did assault NRK and at the time of the assault committed an act of indecency on NRK, in circumstances of aggravation…

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.

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Details

Case: [2007] NSWDC 36
Decision Date: 28 February 2007

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v McIntosh involved the applicant, McIntosh, who faced charges related to the death of a young child. McIntosh sought to have his trial separated from that of his partner, who was also charged in connection with the child's death. Additionally, McIntosh objected to certain records of police interviews and sought to exclude videos that had been taken during the investigation from being admitted as evidence.

The court had to decide whether McIntosh's trial should be separated from his partner's, and if certain evidence could be admitted in the trial. Specifically, the court considered the admissibility of tendency evidence provided by two witnesses, W and C, and the use of videos taken during the investigation. The court also had to determine whether the videos could be admitted as evidence in relation to counts one, two and three.

The court found that McIntosh's application for a separate trial should be dismissed, as it was not in the interests of justice to separate the trials. Regarding the evidence, the court held that the tendency evidence of W and C was not admissible, but evidence led in relation to each count could be relied on as tendency evidence in relation to the other counts. The videos in question were also deemed admissible as they were relevant to the charges against McIntosh. The court concluded that the videos could be used as tendency evidence in relation to counts one, two and three.

Orders

Orders of the court

Application for separate trials dismissed; Tendency evidence of W and C is not permitted to be led; Evidence led in relation to each count is permitted to be relied on as tendency evidence in relation to the other counts; The videos (VD 6 and 7) can also be relied on as tendency evidence in relation to counts one, two and three.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Andrew Dean McIntosh [2007] NSWDC 36
HEARING DATE(S):	13/2/07-28/2/07
JUDGMENT DATE:	28 February 2007
JURISDICTION:	NSW
JUDGMENT OF:	Knox SC DCJ
DECISION:	Application for separate trials dismissed; Tendency evidence of W and C is not permitted to be led; Evidence led in relation to each count is permitted to be relied on as tendency evidence in relation to the other counts; The videos (VD 6 and 7) can also be relied on as tendency evidence in relation to counts one, two and three.
CATCHWORDS:	application for separate trials - objections to records of interviews - tendency/coincidence evidence - objections to videos
LEGISLATION CITED:	Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Criminal Procedure Amendment (Sexual & Other Offences) Act 2006 (NSW) Evidence (Children) Act 1997 (NSW) Judiciary Act 1903 (Cth) Children (Criminal Proceedings) Act 1987 (NSW) Evidence Act 1995 (NSW)
CASES CITED:	R v NZ [2005] NSWCCA 278 R v RN (2005) NSWCCA 413 R v Chami (2002) 128 A Crim R 428; [2002] NSWCCA 136 R v RH (2004) NSWCCA 427 R v Middis NSWSC unrep 27 March 1991 R v Baartman unrep. CCA NSW 6 October, 1994 R v Demirock (1976) VR 244 at 254 Dejesus v R (1986) 68 ALR 1 R v Bikic [2000] NSWCCA 106 R v Watkins [2005] NSWCCA 164 R v F [2002] NSWCCA 9 R v Fletcher [2005] NSWCCA 338 Gipp v The Queen (1998) 194 CLR 106 R v Milton [2004] NSWCCA 195 Tully v The Queen [2006] HCA 56 R v AH (1997) 42 NSWLR 702 Qualitieri v The Queen [2006] NSAWCCA 95 R v Leonard [2006] NSWCCA 267 R v Fletcher (2005) 156 A Crim R 308 R v Zhang (2005) 158 A Crim R 504 R v Phillips [2006] HCA 4 Phillips v South Australian Police (1994) S4843 Crowe v Graham (1968) 121 CLR 375
PARTIES:	R; Andrew Dean McIntosh
FILE NUMBER(S):	06/11/0904
COUNSEL:	Mr S. Flood Mr A. Radojev
SOLICITORS:	Mr. D. Mayr (Commonwealth DPP) Mr C. Lee