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R v Cahill (No. 2)

R v Cahill (No. 2)

Case [2018] NSWSC 1531 11 October 2018

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Supreme Court

New South Wales

Medium Neutral Citation: R v Cahill (No. 2) [2018] NSWSC 1531
Hearing dates: 8 October 2018
Date of orders: 11 October 2018
Decision date: 11 October 2018
Jurisdiction: Common Law
Before: Johnson J
Decision:
Johnson J:
1. allows the Crown to adduce evidence for tendency purposes in accordance with the Crown’s Amended Tendency Notice;
2. allows the Crown to adduce evidence as relationship evidence in the form of evidence to be admitted for tendency purposes together with the additional evidence identified by the Crown;
3. rejects the defence application to rely upon evidence for tendency purposes in accordance with the defence Amended Tendency Notice;
4. will hear counsel on objections to specific parts of the evidence, in particular those parts of the evidence which involve statements made by Mr Walsh to other persons.

Catchwords: CRIMINAL LAW - murder trial - Accused charged with murder of partner - Crown application to adduce tendency evidence and relationship evidence - defence application to adduce tendency evidence - trial issues include self-defence (and defence of another), extreme provocation and substantial impairment - Crown application to adduce relationship evidence allowed - Crown application to rely upon evidence concerning two incidents for tendency purposes allowed - defence application to rely on evidence for tendency purposes declined
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: BC v R [2015] NSWCCA 327
BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Norman v R [2012] NSWCCA 230
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335
R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
R v Merrick (No. 2) [2016] NSWSC 164
R v Toki (No. 3) (2000) 116 A Crim R 536
R v Watkins (2005) 153 A Crim R 434; [2005] NSWCCA 164
The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Cathrina Ann Cahill (Accused)
Representation:
Counsel:
Ms N Williams (Crown)
Mr J Trevallion (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Sarkis & Co (Accused)

File Number(s): 2017/52106
Publication restriction: On 23 October 2018, the Accused pleaded guilty on an indictment charging manslaughter which the Crown proceeded with in place of the charge of murder. On 12 December 2018, the Offender was sentenced for manslaughter: R v Cahill (No. 4) [2018] NSWSC 1896.

Judgment

JOHNSON J: The Accused, Cathrina Ann Cahill, stands charged that between 17 and 18 February 2017 at Padstow in the State of…

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 Cahill (No. 2)

Details

AGLC: R v Cahill (No. 2) [2018] NSWSC 1531
Case: [2018] NSWSC 1531
Decision Date: 11 October 2018

CaseChat Overview and Summary

The respondent, in this case, was charged with the murder of his partner. The trial faced several issues, including whether the accused acted in self-defence, defence of another, extreme provocation, and whether the accused suffered from substantial impairment at the time of the offence. The Crown sought to introduce tendency evidence and relationship evidence, while the defence sought to introduce tendency evidence. The trial judge heard the applications and gave judgment on the admissibility of the evidence.

The legal issues before the court were whether the Crown's applications to adduce tendency evidence and relationship evidence should be allowed, and whether the defence's application to adduce tendency evidence should be allowed. The court had to consider the relevance of the evidence to the issues in the trial, the probative value of the evidence, and whether the evidence would be unfairly prejudicial to the accused.

The court found that the Crown's application to adduce relationship evidence was allowed, and the Crown's application to rely upon evidence concerning two incidents for tendency purposes was also allowed. However, the court declined the defence's application to rely on evidence for tendency purposes. The court found that the evidence was relevant to the issues in the trial and had sufficient probative value to outweigh any prejudicial effect it may have on the accused. The court also found that the evidence did not unfairly prejudice the accused.

The court ordered that the Crown could adduce relationship evidence and evidence concerning two incidents for tendency purposes, and the defence's application to adduce tendency evidence was declined.

Orders