R v Arvidson

Case [2008] NSWCCA 135

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Regina v ARVIDSON [2008] NSWCCA 135

FILE NUMBER(S):
2007/13557

HEARING DATE(S):
13 May 2008

JUDGMENT DATE:
20 June 2008

PARTIES:
Regina (Appellant)
Elizabeth Karen ARVIDSON (Respondent)

JUDGMENT OF:
Beazley JA Johnson J McCallum J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/21/1009

LOWER COURT JUDICIAL OFFICER:
Hughes DCJ

LOWER COURT DATE OF DECISION:
29 April 2008

COUNSEL:
L Lamprati SC (Appellant)
P Strickland (Respondent)

SOLICITORS:
Solicitor for Public Prosecution (Appellant)
Legal Aid Commission (Respondent)

CATCHWORDS:
CRIMINAL LAW – Crown Appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) – exclusion of prejudicial evidence - whether exclusion eliminates or substantially weakens prosecution case – jurisdiction to hear appeal - jurisdictional question to be determined on the whole of the evidence in Crown case
CRIMINAL LAW – Crown Appeal - Evidence Act 1995 s 137 - exclusion of prejudicial evidence - whether probative value of evidence outweighed by prejudice – excluded evidence held to form part of a circumstantial case - exclusion unreasonable

LEGISLATION CITED:
Crimes Act 1900, ss156, 158
Criminal Appeal Act 1912, s 5F(3A)
Evidence Act 1995, s 137

CASES CITED:
Festa v R [2001] HCA 72; 208 CLR 593
House v The King [1936] HCA 40; (1936) 55 CLR 499
R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195

TEXTS CITED:

DECISION:
1. Appeal allowed;
2. Set aside the decision of the trial judge excluding the evidence of the edited video tapes and the evidence of Mr Rorke.

JUDGMENT:

- 15 -

IN THE COURT OF  
CRIMINAL APPEAL

CCA 2007/13557

BEAZLEY JA
JOHNSON J
McCALLUM J

20 June 2008

Regina v Elizabeth Karen ARVIDSON

Headnote

The respondent was charged on indictment with larceny as a clerk and destruction of paper with the intent to defraud under ss 156 and 158 respectively of the Crimes Act 1900, in relation to the theft of $80,000 the property of her employer, Brinks Australia. The respondent pleaded not guilty to both charges.

Before the commencement of the Crown case, the respondent made a successful application to the trial judge, Hughes DCJ, under s137 of the Evidence Act 1995 for the exclusion of an edited CCTV surveillance video of the despatch area of Brinks Australia from which the monies were taken and the evidence of a Mr Rorke, who had compiled the edited version of the videotapes. Mr Rorke gave evidence that in editing the CCTV footage, he had focussed on the movements of the respondent, acting on the assumption that she was the primary suspect.

Hughes DCJ found that a jury, on viewing the edited disk, would be likely to give the evidence more weight than it deserved, or the jury would be diverted from its task. His Honour therefore determined that the prejudice of the tape outweighed any probative value, which could…

Continue reading R v Arvidson

Sign in free to access the full text

Details
AGLC
R v Arvidson [2008] NSWCCA 135
Case
[2008] NSWCCA 135
Decision Date

CaseChat Overview and Summary

In the case of R v Arvidson, the appellant sought to appeal against a decision made by Hughes DCJ in the County Court of Victoria. The decision in question pertained to the exclusion of certain prejudicial evidence which the appellant argued would have been significant in establishing the respondent’s guilt. The appeal was brought under the Criminal Appeal Act 1912, specifically s 5F(3A), which provides a basis for the Crown to appeal against decisions made by the trial judge. The central legal issues revolved around the interpretation and application of s 137 of the Evidence Act 1995, which dictates that the court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. The Crown argued that the exclusion of the evidence in question eliminated or substantially weakened the prosecution case, and therefore the appeal should be upheld.

The Court had to determine whether the exclusion of the prejudicial evidence was justified under the criteria set out in s 137. The trial judge, Hughes DCJ, had excluded the CCTV footage on the basis that the editing of the tapes by an outside party distorted the evidence and unfairly focused on the respondent’s activities, thereby causing prejudice. The Crown contended that the trial judge’s decision was erroneous as it misconstrued the criteria for admissibility of evidence. The Crown argued that the footage was of high probative value and that its exclusion substantially weakened the prosecution case. The Court considered whether the prejudicial effect of the evidence outweighed its probative value and whether the trial judge's reasoning was consistent with the statutory provisions.

In its judgment, the Court held that the trial judge's exclusion of the CCTV footage was unreasonable. The Court found that the footage was part of a circumstantial case and its exclusion did not align with the statutory requirement under s 137. The Court noted that evidence is not prejudicial merely because it strengthens the prosecution case, but only when it is likely to inflame the jury or divert them from their task. The Court held that the trial judge's criticism of the editing of the tapes was not a cogent basis for exclusion, as the footage remained highly probative of the respondent's actions. Therefore, the Court determined that the exclusion of the evidence was unjustifiable and the appeal was allowed.

The final orders of the Court reinstated the CCTV footage as admissible evidence, thereby reversing the decision of the trial judge. The Court mandated that the case be remitted back to the County Court for further proceedings, ensuring that the evidence was considered as part of the prosecution’s case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 137 of the Evidence Act provides:“Exclusion of prejudicial evidence in criminal proceedingsIn a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.” The ‘House v The King error’ relied upon by the Crown was that his Honour confused the question of admissibility with the question of the strength or otherwise of the evidence to be put before the jury. The Crown submitted that the matters raised by the respondent in her submissions to the trial judge were essentially jury points. It was submitted that the ruling had to be viewed against the role of the Crown at the trial, namely, that it was for the Crown to adduce evidence that established beyond reasonable doubt that the respondent was guilty of the offences with which she was charged. As indicated, the trial judge referred to Festa. In that case, McHugh J commented upon the circumstances in which evidence could be excluded under s 137. The appellant in Festa had contended that the trial judge erred in not excluding identification evidence, which she claimed was of low probative value, but which was of a highly prejudicial character. McHugh J observed, at [51], that the weakness of relevant evidence was not a ground for exclusion. McHugh J then commented upon the balance of probative value as compared to the prejudicial effect of the material. He stated:“It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.” Having appropriately referred to this test, Hughes DCJ described the CCTV surveillance footage as “an electronic eye witness of the events” and said that:“If in some way or another the electronic eye witness is distorted to an extent that only gives an account of the accused’s behaviour or one person’s behaviour, then it would be like calling a prejudiced eye witness to give an account of evidence.” His Honour considered, therefore, that: “… this is a clear case where the prejudice, that is to say, the compilation by an outside person of a person he suspects of committing the offence a person acting as, if I might say so, as a judge and jury as to the guilt or innocence of the accused in my opinion that prejudice is so strong that it outweighs any probative value that is gained by the Crown.” In reaching this conclusion, Hughes DCJ accepted that the tapes were “strong evidence” in the Crown case, by which I assume his Honour meant, were of high probative value. The Crown contends that his Honour’s conclusion that the jury would give more weight to the edited video evidence than it deserved because it focussed upon the activities of the accused, so that its effect was distorted, was erroneous. The Crown submits that the criticism by his Honour that the editing of the tapes was done in such a way as to only focus on the respondent, was not a cogent one. The prosecution of the respondent was based on a strong circumstantial case against her, including that the footage recorded her opening the sealed trolley, retrieving a document from it, reading the contents of the document which, it was known, included reference to the E-cash satchels; having a cardboard box in the near vicinity but out of CCTV surveillance; of moving things away from the trolley; and of asking another employee to take the carton to a room in which there was no surveillance.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.