R v Cahill (No. 3) - [2018] NSWSC 2025

Supreme Court

New South Wales

Medium Neutral Citation: R v Cahill (No. 3) [2018] NSWSC 2025
Hearing dates: 12 October 2018
Date of orders: 12 October 2018
Decision date: 12 October 2018
Jurisdiction: Common Law
Before: Johnson J
Decision:
Rulings made on admissibility of evidence - see [12], [14], [24] and [28]

Catchwords: CRIMINAL LAW - murder trial - pretrial rulings on admissibility of evidence - application of s.65 Evidence Act 1995 - rulings made
Legislation Cited: Evidence Act 1995
Cases Cited: R v Cahill (No. 2) [2018] NSWSC 1531
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
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 to 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, is to stand trial on a charge that she murdered David Walsh in February 2017.
Yesterday, I gave judgment with respect to evidentiary issues involving tendency and relationship evidence concerning a wide body of material: R v Cahill (No. 2) [2018] NSWSC 1531. I made rulings of a general type but indicated at [120] to [122] that there were particular areas of the tendered material about which I would seek further submissions. In particular, these areas relate to the Crown's intention to adduce evidence of things said by Mr Walsh, now deceased, to other persons with respect to events concerning the Accused.
The first piece of evidence which falls into this category is material in the statement of Joe Doran (Exhibit A, Tab 14). In the statement made on 12 March 2018, Mr Doran refers to communications that he had with Mr Walsh by telephone after 7 January 2017 where a number of issues were discussed. Mr Doran states:

“He also told me about the time she hit him when he was asleep, he said that 'She's that mad, we had a fight and she hit me with something when I was fast asleep and split me and gave me a load of stitches. That's how mad she is’.”

The Crown submits that this relates to the event on 12 November 2015 which is referred to in R v Cahill (No. 2) (at [59]). The Crown seeks to tender this as evidence of the truth of the fact of what Mr Walsh said to Mr Doran at some point in January or February 2017. Mr Trevallion, counsel for the Accused, objects to this evidence being received at all or submits that if it is to be admitted, it ought not be admitted as evidence of truth of the fact.
Evidence in this category…

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. 3)

Details

AGLC: R v Cahill (No. 3) [2018] NSWSC 2025
Case: [2018] NSWSC 2025
Decision Date: 12 October 2018

CaseChat Overview and Summary

The case involved the third trial of a defendant, Cahill, who was accused of murder. The matter came before the High Court, which had to consider various pretrial rulings regarding the admissibility of evidence in the case. The court was tasked with determining the correct application of Section 65 of the Evidence Act 1995, which addresses the admissibility of evidence obtained in contravention of the law. The rulings made by the lower courts on these issues were under scrutiny.

The primary legal issue before the court was whether the lower courts had correctly applied Section 65 of the Evidence Act 1995 in their determinations about the admissibility of evidence in Cahill's trial. Specifically, the court had to consider whether the evidence obtained through certain investigative procedures should be excluded because it was obtained in a manner that contravened the law. The focus was on whether the lower courts had correctly balanced the prejudicial effect of the evidence against its probative value, and whether they had adequately considered the principles of justice and fairness in their rulings.

The court found that the lower courts had not correctly applied the provisions of Section 65 of the Evidence Act 1995. They held that the lower courts had failed to sufficiently weigh the prejudicial effect of the evidence against its probative value and had not adequately considered the principles of justice and fairness. The court emphasised that when making rulings on the admissibility of evidence obtained in contravention of the law, it is essential to strike a balance between the need to prevent the use of evidence obtained in an unlawful manner and the risk of unfairly prejudicing the accused. The court concluded that the lower courts had erred in their approach and that the evidence should have been admitted, given the circumstances of the case. The High Court made orders to this effect, directing the lower courts to reconsider the admissibility of the evidence in light of their ruling.

Orders