R v Campbell; R v Waters (No. 3) - [2023] NSWDC 628

District Court

New South Wales

Medium Neutral Citation: R v Campbell; R v Waters (No. 3) [2023] NSWDC 628
Hearing dates: 21 June 2023
Date of orders: 22 June 2023
Decision date: 07 July 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Application refused. For orders see [114] and [116].

Catchwords:
Crown application to rely on tendency evidence, and evidence for a non-tendency purpose.

Legislation Cited:
The Evidence Act 1995 (NSW)

Cases Cited:
El-Haddad v R (2015) 248 A Crim R 537; [2015] NSWCCA 10
Geraghty v R [2023] NSWCCA 47
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Marsh v The Queen [2018] ACTCA 55
McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
O’Keefe v The Queen [2009] NSWCCA 121
R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
R v Sheard [2022] NSWSC 735

Category: Procedural rulings
Parties: The Commonwealth Director of Public Prosecutions (The Crown)
David Edward John Campbell (Accused Campbell)
Tristian Egon Sebastian Waters (Accused Waters)
Representation:
Counsel:
Mr S Flood (Crown)
Mr M Varley (Crown)
Mr R Driels (Accused Campbell)
Mr D Dalton SC (Accused Waters)
Mr P Hogan (Accused Waters)
Solicitors:
Ms C Patrizi (Crown)
Ms N Anastasiou (Accused)
Mr T Dib (Accused Waters)

File Number(s): 2018/17350 (Campbell) & 2018/20632 (Waters)
Publication restriction: Nil.

JUDGMENT on the crown application to rely on tendency evidence in the prosecution of tristan waters

On 15 May 2023 the co-accused were arraigned on the following counts on the Indictment:-

Count 1 that between about 18 January 2017 and about 24 October 2017, at Sydney in the State of New South Wales and elsewhere, they did conspire with each other, Rohan Peter Arnold and divers others to import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity.

Count 2 that between about 24 October 2017 and 16 January 2018, at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Rohan Peter Arnold and divers others to possess a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity and the substance having been unlawfully imported.

The accused Campbell pleaded not guilty to both counts and the accused Waters pleaded not guilty to Count 1 and guilty to Count 2 “but for the date range which was from about 26 December 2017 to 16 January 2018”.
The trial proceeded from 22 May 2023 until 21 June 2023 and the Crown has produced a substantial volume of evidence in the Crown case against both accused. On 20 June 2023 the trial proper was adjourned for the Crown to bring an application based on an amended Tendency Evidence Notice pursuant to s97 of the Evidence Act 1995 (NSW) (“the Act”) seeking a…

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.

Keep reading for free

Create a free CaseChat account to read R v Campbell; R v Waters (No. 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWDC 628
Decision Date: 07 July 2023

CaseChat Overview and Summary

The case of R v Campbell; R v Waters (No. 3) involved the applicants seeking to rely on evidence of prior criminal acts for purposes other than to establish a tendency towards criminal behaviour. The applicants argued that such evidence was relevant to the issue of identity, and therefore should be admitted. The Crown opposed the application, arguing that the evidence was not relevant to the issue of identity and was likely to unfairly prejudice the applicants. The matter was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether the evidence of the prior criminal acts was admissible for a purpose other than to establish a tendency towards criminal behaviour, and if so, whether it was relevant to the issue of identity. The court needed to determine if the probative value of the evidence outweighed any prejudicial effect it may have on the applicants.

The court found that the evidence of the prior criminal acts was not relevant to the issue of identity, and therefore could not be admitted for that purpose. The court emphasised the need to balance the probative value of the evidence against any prejudicial effect it may have. The court held that the prejudicial effect of the evidence outweighed its probative value, and therefore the application to admit the evidence for a non-tendency purpose was refused. The court also noted that the evidence was not admissible for the purpose of establishing a tendency towards criminal behaviour, as it did not meet the criteria set out in the Evidence Act.

The court refused the Crown's application to rely on the evidence of the prior criminal acts for a non-tendency purpose. The court held that the evidence was not relevant to the issue of identity, and that the prejudicial effect of the evidence outweighed its probative value. The court also noted that the evidence did not meet the criteria for establishing a tendency towards criminal behaviour. The orders of the court are set out at [114] and [116].

Orders

Orders of the court

Application refused. For orders see [114] and [116].

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.

Medium Neutral Citation:	R v Campbell; R v Waters (No. 3) [2023] NSWDC 628
Hearing dates:	21 June 2023
Date of orders:	22 June 2023
Decision date:	07 July 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Application refused. For orders see [114] and [116].
Catchwords:	Crown application to rely on tendency evidence, and evidence for a non-tendency purpose.
Legislation Cited:	The Evidence Act 1995 (NSW)
Cases Cited:	El-Haddad v R (2015) 248 A Crim R 537; [2015] NSWCCA 10 Geraghty v R [2023] NSWCCA 47 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Marsh v The Queen [2018] ACTCA 55 McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52 O’Keefe v The Queen [2009] NSWCCA 121 R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 R v Sheard [2022] NSWSC 735
Category:	Procedural rulings
Parties:	The Commonwealth Director of Public Prosecutions (The Crown) David Edward John Campbell (Accused Campbell) Tristian Egon Sebastian Waters (Accused Waters)
Representation:	Counsel: Mr S Flood (Crown) Mr M Varley (Crown) Mr R Driels (Accused Campbell) Mr D Dalton SC (Accused Waters) Mr P Hogan (Accused Waters) Solicitors: Ms C Patrizi (Crown) Ms N Anastasiou (Accused) Mr T Dib (Accused Waters)
File Number(s):	2018/17350 (Campbell) & 2018/20632 (Waters)
Publication restriction:	Nil.