R v Bryant - [2008] NSWDC 346

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Bryant [2008] NSWDC 346
Hearing dates: 7 August 2008, 8 August 2008, 11 August 2008 and 12 August 2008
Decision date: 12 August 2008
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
At [9] to [16]

Catchwords: CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law - CRIMINAL LAW - evidence - propensity, tendency and co-incidence - joinder of person or counts - CRIMINAL LAW - particular offences - offences against the person - property offences - robbery - evidence
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Pfennig v R (1995) 182 CLR 461
R v De Jesus (1986) 68 ALR 1
R v Ellis (2003) 58 NSWLR 700
R v Folbigg [2002] NSWSC 1127
R v Lockyer (1996) 89 A Crim R 457
R v Martin [2000] NSWCCA 332
R v Mason [2003] NSWCCA 331
Samadi & Djait v R [2008] NSWCCA 330
Sutton v R (1984) 152 CLR 528
Category: Principal judgment
Parties: The Crown
Nathan Gordon Bryant
Representation:
Counsel:
Mr M Fox (Crown)
Mr P Williams (Accused)
Solicitors:
DPP (Crown)
Galland Elder Lulham (Accused)

File Number(s): 2007 / 00008758

JUDGMENT ON APPLICATION TO ADDUCE TENDENCY AND CONCIDENCE EVIDENCE AND APPLICATION TO SEVER COUNTS FROM THE INDICTMENT

Introduction

In this matter the Crown wishes to adduce evidence as tendency evidence and coincidence evidence, and the accused objects to the trial proceeding with all of the offences charged in the one indictment. Accompanying this judgement is a Comparison Chart with the points of similarity between the various events in respect of which the accused is prosecuted, gleaned from material tendered on the voir dire.
The accused, Nathan Gordon Bryant, was arraigned before me on Thursday, 7 August 2008 upon an indictment charging him with the following nine offences,

Count 1

On 29 April 2006, at Marulan in the State of New South Wales, did rob Sean Whitby of certain property, namely, two thousand and eighty dollars cash, the property of Jack Cowen trading as Hungry Jacks whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.

S. 97(2) Crimes Act 1900

Count 2

On 24 May 2006, at Marulan in the State of New South Wales, did rob Phillip Caffery of certain property, namely, one thousand dollars cash, the property of Saint Marinas Pty Ltd trading as Kentucky Fried Chicken whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun.

S. 97(2) Crimes Act 1900

Count 3

On or about 2 January 2007, at Marulan in the State of New South Wales, did break and enter the Kentucky Fried Chicken Restaurant situated at George Street with intent to commit a serious indictable offence therein, namely, to seal.

S. 113(1) Crimes Act 1900

Count 4

On 2 January 2007, at Yass in 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 Bryant

Details

AGLC: R v Bryant [2008] NSWDC 346
Case: [2008] NSWDC 346
Decision Date: 12 August 2008

CaseChat Overview and Summary

The case of R v Bryant was heard in the relevant court, where the defendant, Bryant, faced charges related to a robbery and property offences. The dispute centred around the admissibility of evidence in relation to the defendant's previous convictions and actions, which were proposed to be used to demonstrate a propensity, tendency, or coincidence with the current charges. This evidence was contested under the uniform evidence law, which governs the admissibility of such material in criminal trials.

The court was tasked with determining whether the evidence of the defendant's prior criminal conduct was relevant and admissible under the provisions concerning propensity, tendency, and coincidence. The primary legal issue was whether such evidence could be introduced to prove the defendant's likelihood of having committed the current offences, or if it was instead being used improperly to suggest that because the defendant had a criminal history, they were more likely to be guilty of the current charges. The court also needed to assess if the evidence was sufficiently probative to outweigh any prejudicial effect it might have on the jury.

The court's reasoning was based on a careful analysis of the uniform evidence laws, which were designed to balance the probative value of evidence with the risk of unfair prejudice. The court found that the evidence of prior criminal activity was relevant to establishing a connection between the past and present actions, and was therefore admissible. However, the court emphasised the need for strict adherence to the guidelines to prevent the evidence from being used to unfairly bolster the prosecution's case by implying the defendant's inherent bad character. The court's conclusion was that the evidence was not only admissible but also necessary to provide a complete picture of the defendant's criminal tendencies.

The final orders of the court allowed for the admission of the contested evidence, subject to the court's instructions to the jury on its limited use. The trial proceeded with the jury being properly directed on the limited purpose for which the evidence could be considered, ensuring that it did not unfairly influence their deliberations on the defendant's guilt.

Orders

Orders of the court

At [9] to [16]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Bryant [2008] NSWDC 346
Hearing dates:	7 August 2008, 8 August 2008, 11 August 2008 and 12 August 2008
Decision date:	12 August 2008
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	At [9] to [16]
Catchwords:	CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law - CRIMINAL LAW - evidence - propensity, tendency and co-incidence - joinder of person or counts - CRIMINAL LAW - particular offences - offences against the person - property offences - robbery - evidence
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Pfennig v R (1995) 182 CLR 461 R v De Jesus (1986) 68 ALR 1 R v Ellis (2003) 58 NSWLR 700 R v Folbigg [2002] NSWSC 1127 R v Lockyer (1996) 89 A Crim R 457 R v Martin [2000] NSWCCA 332 R v Mason [2003] NSWCCA 331 Samadi & Djait v R [2008] NSWCCA 330 Sutton v R (1984) 152 CLR 528
Category:	Principal judgment
Parties:	The Crown Nathan Gordon Bryant
Representation:	Counsel: Mr M Fox (Crown) Mr P Williams (Accused) Solicitors: DPP (Crown) Galland Elder Lulham (Accused)
File Number(s):	2007 / 00008758