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R v Chase

R v Chase

Case [2018] NSWCCA 71 18 April 2018

Appeal

Admissibility of Evidence

Tendency Evidence

Coincidence Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Chase (a pseudonym) [2018] NSWCCA 71
Hearing dates: 9 March 2018
Decision date: 18 April 2018
Before: Basten JA at [1];
Johnson J at [39];
Campbell J at [40]
Decision:
(1) Allow the appeal by the Director of Public Prosecutions against the judgment in the District Court given on 27 November 2017.
(2) Set aside the order excluding the proposed tendency and coincidence evidence.
Catchwords:
APPEAL – interlocutory judgment rejecting proposed tendency or coincidence evidence – whether rejection of evidence eliminated or substantially weakened prosecution case – whether prosecution case necessarily weakened by rejection of evidence with significant probative value – consideration of R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCA 112 – whether appeal Court should determine admissibility
EVIDENCE – tendency evidence – coincidence evidence – criminal proceedings – whether trial judge erred in finding probative value did not substantially outweigh prejudice – whether relevant prejudice limited to effect of evidence on jury
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Evidence Act 1995 (NSW), ss 97, 98, 101, 137
Cases Cited: DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
Glover v R; Stuart v R [2015] NSWCCA 285
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v The Queen [2017] HCA 20; 92 ALJR 52
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Mol v R [2017] NSWCCA 76
R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174
R v MM [2014] NSWCCA 144
R v Ollis [1900] 2 QB 758
R v SG [2017] NSWCCA 202
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v SJRC [2007] NSWCCA 142
Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Category: Principal judgment
Parties: Regina (Appellant)
Chase (a pseudonym) (Respondent)
Representation:
Counsel:
Mr D Kell SC/Mr M Pulsford (Appellant)
Mr E Ozen (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
O’Brien Hudson Solicitors (Respondent)

File Number(s): 2015/345579
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 November 2017

Before:

Craigie SC DCJ

File Number(s):

2015/345579

Judgment

BASTEN JA: The Director of Public Prosecutions has appealed, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), against an interlocutory judgment in the District Court rejecting the proposed tender by the prosecutor of evidence described as tendency or coincidence evidence. The Director’s right of appeal depends on a finding that the ruling “eliminates or substantially weakens the prosecution’s case”. [1] There is no suggestion that the rejection of the evidence “eliminates” the prosecution case, that is, makes it untenable.
1. Criminal Appeal Act, s 5F(3A).
Briefly, the respondent faces two charges of possessing drugs for supply, in contravention of the Drug Misuse…

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 Chase

Details

AGLC: R v Chase (a pseudonym) [2018] NSWCCA 71
Case: [2018] NSWCCA 71
Decision Date: 18 April 2018

CaseChat Overview and Summary

The case of R v Chase was an appeal brought before the court, wherein the appellant challenged the interlocutory judgment that rejected proposed tendency or coincidence evidence. The appellant argued that the exclusion of this evidence eliminated or substantially weakened the prosecution's case against him. The appellant further contended that the rejection of evidence with significant probative value necessarily weakened the prosecution's case. The court was required to determine the admissibility of the proposed evidence and whether the trial judge had erred in finding that the probative value did not substantially outweigh the prejudice.

The court examined the principles set out in R v Shamouil, which emphasised the importance of the probative value and prejudicial effect of evidence in determining its admissibility. The court considered whether the prejudice was limited to the effect of the evidence on the jury, or whether it also extended to the overall strength of the prosecution's case. The court found that the trial judge had not erred in excluding the proposed evidence, as the probative value did not substantially outweigh the prejudicial effect. The court further held that the appeal court should not determine the admissibility of the evidence, as this was a matter for the trial judge.

In conclusion, the court dismissed the appeal and upheld the interlocutory judgment rejecting the proposed tendency or coincidence evidence. The court found that the exclusion of the evidence did not eliminate or substantially weaken the prosecution's case, and that the trial judge had not erred in finding that the probative value did not substantially outweigh the prejudice. The court held that the appeal court should not determine the admissibility of the evidence, as this was a matter for the trial judge. The final orders of the court were that the appeal be dismissed and the interlocutory judgment be upheld.

Orders