R v Carberry (No 3) - [2023] NSWSC 166

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Carberry (No 3) [2023] NSWSC 166
Hearing dates: 28 February 2023
Date of orders: 28 February 2023
Decision date: 28 February 2023
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The tendency evidence to be adduced is admissible.

Catchwords:
CRIMINAL LAW – evidence – tendency – whether evidence has significant probative value – where accused charged with murder – where accused raised self-defence – evidence of prior violent acts by deceased – tendency asserted in notice to be violent when his goals are frustrated – evidence capable of giving rise to the kind of tendency asserted in the notice – evidence admissible

Legislation Cited:
EvidenceAct1995 (NSW) ss 97, 100, 192
Crimes(SentencingProcedure)Act1999 (NSW), s 12

Cases Cited:
DirectorofPublicProsecutionsvDixon(RulingNo1) [2020] VSC 743
DPPvWilson(Ruling) [2021] VSC 766
ElomarvR (2004) 316 ALR 206; [2014] NSWCCA 303
Hughesv The Queen (2017) 263 CLR 338; [2017] HCA 20
IMMvTheQueen (2016) 257 CLR 300; [2016] HCA 14
Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21
R v Holmes(No 5) [2021] NSWSC 115
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
The Queen v Majak [2022] NTSC 57
TL v The King (2022) 96 ALJR 1072; [2022] HCA 35

Category: Procedural rulings
Parties: Rex (Crown)
Saimone (Simon) Carberry (Defendant)
Representation:
Counsel:
K Ratcliffe (Rex)
T D Anderson SC (Carberry)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Styles Law Solicitors (Carberry)

File Number(s): 2020/335222

EX TEMPORE JUDGMENT (REVISED)

On the eve of the sixth day of the trial of Simon Carberry, for the alleged murder of Sayed Mousawi, the accused served a tendency notice pursuant to s 97 of the Evidence Act 1995 (NSW), seeking to admit evidence relating to the alleged tendency of the deceased "to be violent when his goals are frustrated". The notice was accompanied by several documents which went to justifying the very late service of the notice and setting out the thrust of the evidence sought to be adduced. The Prosecutor objects to the evidence.
The trial had reached the point where the prosecution was expected to close its case on Monday 27 February 2023, just a week after the jury was empanelled. The tendency issue resulted in the trial being adjourned for a day or so to allow the parties to obtain the best evidence available concerning the incidents giving rise to the tendency alleged by the accused, and to allow the prosecution to formulate its position and assist the Court with its submissions.
Around lunchtime on Monday, the jury were sent away and told to return on Wednesday. The issue was ventilated briefly yesterday afternoon and again this…

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 Carberry (No 3)

Details

AGLC: R v Carberry (No 3) [2023] NSWSC 166
Case: [2023] NSWSC 166
Decision Date: 28 February 2023

CaseChat Overview and Summary

The court considered the admissibility of evidence in a murder case against the accused, Carberry, who had raised a self-defence claim. The evidence in question related to prior violent acts by the deceased, which the prosecution sought to introduce to establish a tendency towards violence when his goals were frustrated. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the evidence of the deceased's prior violent acts had significant probative value in relation to the accused's self-defence claim. The court had to determine if the evidence could be admitted under the provisions of the Evidence Act 2008 (Vic), specifically section 97, which pertains to the admissibility of evidence of a person's character or tendency. The court also had to consider section 98, which addresses the prejudicial effect of such evidence.

The court found that the evidence of the deceased's prior violent acts was relevant to the accused's claim of self-defence, as it demonstrated a tendency to resort to violence when his objectives were obstructed. The court reasoned that the evidence could be used to rebut the self-defence claim by showing that the deceased's actions were consistent with a pattern of violence. Consequently, the court held that the evidence had significant probative value and was therefore admissible. The court emphasised the importance of considering the specific circumstances of each case when determining the admissibility of tendency evidence.

The court ruled that the evidence of the deceased's prior violent acts was admissible in the trial. The decision underscores the importance of assessing the probative value of tendency evidence in relation to the specific circumstances of the case, particularly in cases where self-defence is claimed. The ruling also highlights the need for a balanced approach in considering the prejudicial effect of such evidence against its probative value.

Orders