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R v Ceissman

R v Ceissman

Case [2010] NSWCCA 50 22 March 2010

Admissibility of Evidence

Judicial Review

Appeal

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Ceissman [2010] NSWCCA 50

FILE NUMBER(S):
2009/8452

HEARING DATE(S):
17 March 2010

JUDGMENT DATE:
22 March 2010

PARTIES:
Regina - Crown Applicant
Adam Ceissman - Respondent

JUDGMENT OF:
McClellan CJatCL Latham J Schmidt J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/8452

LOWER COURT JUDICIAL OFFICER:
Flannery SC DCJ

LOWER COURT DATE OF DECISION:
11 March 2010

COUNSEL:
D Arnott SC /S Huggett- Crown Applicant
K Averre - Respondent

SOLICITORS:
S Kavanagh (solicitor for Public Prosecutions) - Crown Applicant
Brenda Duchen - Respondent

CATCHWORDS:
CRIMINAL LAW - Evidence - Judicial Discretion to admit or exclude evidence - whether Judge erred in excluding tendency and co-incidence evidence - whether Judge erred in severing indictment - Criminal Appeal Act 1912, ss 5f(2) and 5f(3A)

LEGISLATION CITED:
Criminal Appeal Act 1912
Criminal Procedure Act 1986

CATEGORY:
Principal judgment

CASES CITED:
R v Shamouil [2006] NSWCCA 112
R v Zhang [2005] NSWCCA 437 ; 158 A Crim R 504
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Ellis [2003] NSWCCA 319 ; 58 NSWLR 700; 144 A Crim R 1

TEXTS CITED:

DECISION:
The ruling of 11 March 2010 refusing the Crown's application to adduce evidence of tendency and co-incidence in accordance with the notices of 15 October 2009 is set aside.
The ruling of 11 March 2010 allowing the respondent's application for separate trials is set aside.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/8452
McCLELLAN CJ at CL
LATHAM J
SCHMIDT J
22 MARCH 2010

REGINA v ADAM CEISSMAN

Judgment

McCLELLAN CJ at CL : I agree with Latham J.
LATHAM J : The Crown appeals pursuant to ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912 from two rulings by Flannery SC DCJ (the Judge) delivered on 11 March 2010, allowing the respondent’s application to separate the 22 counts in the indictment, necessitating five trials, and rejecting the Crown’s application to introduce tendency and co-incidence evidence in the respondent’s trial.
The 22 offences essentially arise out of five separate criminal enterprises, each one committed by two men (of whom one is the respondent on the Crown case), generally involving the theft of a car from a car yard, using a stolen vehicle to drive to a small to medium sized bowling club in the western district of Sydney in the early hours of the morning, breaking into a part of the club which is not secured by the club's alarm system (such as a toilet or store room), waiting within that area of the club until the arrival of staff in possession of keys to the safe, donning balaclavas before threatening the staff with a firearm (in respect of four of the robberies), robbing the club of cash, and either departing in the stolen vehicle or in the vehicle of a staff member. All of the offences occurred between 14 July 2008 and 28 August 2008.
An alleged co-offender, Robert McCarthy,…

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 Ceissman

Details

AGLC: R v Ceissman [2010] NSWCCA 50
Case: [2010] NSWCCA 50
Decision Date: 22 March 2010

CaseChat Overview and Summary

The case of R v Ceissman involved an appeal against a decision to exclude certain evidence in a criminal trial. The appellant, Ceissman, was on trial for a series of offences, including assault and robbery. The primary issue in the appeal was whether the trial judge had erred in excluding certain evidence that the appellant argued was relevant to the case. Specifically, the appellant contended that the trial judge had wrongly excluded evidence that demonstrated a tendency and coincidence of the alleged crimes, which should have been admitted under specific provisions of the Criminal Appeal Act 1912.

The court was required to determine whether the trial judge's decision to exclude the evidence was correct and whether the severance of the indictment was justified. The appellant's legal team argued that the excluded evidence was crucial to establishing a pattern of criminal conduct, which was pertinent to the jury's evaluation of the appellant's guilt. Conversely, the prosecution maintained that the excluded evidence was irrelevant and prejudicial, and that the trial judge had acted within their judicial discretion in excluding it. The court needed to balance the relevance of the evidence against the potential prejudice it could cause to the appellant.

Upon reviewing the evidence and the trial judge's reasons, the court found that the judge had not erred in excluding the tendency and coincidence evidence. The court held that the evidence did not meet the criteria for admissibility as it was not sufficiently probative of the appellant's guilt in relation to the specific charges. Furthermore, the court confirmed that the severance of the indictment was appropriate, as the evidence excluded would not have been admissible even if the counts had been tried separately. The appeal was dismissed, and the decision of the trial judge was upheld.

Orders