R v Cunneen (No. 1) - [2022] NSWDC 585

District Court

New South Wales

Medium Neutral Citation: R v Cunneen (No. 1) [2022] NSWDC 585
Hearing dates: 9 May 2022
Date of orders: 10 May 2022
Decision date: 18 May 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Crown application to tender Certificate of Conviction of third party granted.

Catchwords:
Accessorial liability; admissibility of Certificate of Conviction of principal offender of a felony; whether Evidence Act 1995 abrogates a common law rule.

Legislation Cited:
Evidence Act 1995
Civil Procedure Act 2005
Jury Act 1977

Cases Cited:
Gall v R [2015] NSWCCA 69
Hollington v Hewthorn [1843] KB 587
R v BD (1997) 94 A Crim R 131
R v Carter & Savage [1990] 47 A Crim R 55
R v Dawson [1961] VR 773; (1960) 106 CLR 1.
R v Kirkby (2000) 2 Qd R 257; (1998) 105 A Crim R 323
R v Muriniti (2018) 97 NSWLR 991
R v Simpson (2008) QCA 413
R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
R v Welsh [1998] 105 A Crim R 448; [1998] VSCA 138; [1999] 2 VR 66

Texts Cited:
J D Heydon AC QC, Cross on Evidence (LexisNexis, 13th ed, 2022)

Category: Procedural rulings
Parties: Department of Public Prosecutions (Crown)
James Anthony Cunneen (Accused)
Representation: Counsel:
A. Robertson (Crown)
R. Cavanagh (Accused)

File Number(s): 2017/186919
Publication restriction: Nil.

Judgment

Introduction

The accused James Anthony Cunneen is charged that between 29 September 2014 and 22 June 2017 at Scone and elsewhere in the State of New South Wales, he was an accessory after the fact to the murder of Carly McBride by her partner Sayle Newson at Muswellbrook on 30 September 2014.
The Crown proposes to tender a Certificate of Conviction of Newson, pursuant to s 178 of the Evidence Act 1995 which confirms that after a trial that took place between 29 March 2021 and 24 June 2021, Newson was convicted of the offence of murder pursuant to s 18(1)(a) of the Crimes Act 1900 on 24 June 2021.
The Crown relied on a bundle of documents which became Exhibit A on the voir dire. It included the Crown written submissions, the Certificate of Conviction pursuant to s 178 of the Evidence Act 1995 which the Crown proposed to alter by omitting certain irrelevant material, together with a number of authorities referred to in the Crown submissions and extracts from various Australian Law Reform Commission reports, which are relevant to the question to be determined.
The Crown application was opposed by the accused who relies principally on s 91 of the Evidence Act 1995, and alternatively, in the event that submission is not accepted, on ss 135 and 137 of the Evidence Act 1995 to exclude the evidence as being unfairly prejudicial to the accused.
On 10 May 2022, I ruled that the Certificate of Conviction was admissible. These are my reasons for doing so.

The Crown’s submissions

The Crown case is that between 1.30pm and 2.30pm on 30 September 2014, Newson…

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 Cunneen (No. 1)

Details

AGLC: R v Cunneen (No. 1) [2022] NSWDC 585
Case: [2022] NSWDC 585
Decision Date: 18 May 2022

CaseChat Overview and Summary

The case of R v Cunneen (No. 1) involved a dispute between the Crown and the defendant, Cunneen, in the Supreme Court of New South Wales. The matter centred around the admissibility of a Certificate of Conviction of a third party in relation to accessorial liability. The Crown sought to introduce evidence of the conviction of a third party, who was the principal offender, in order to support its case against Cunneen. The legal issue before the court was whether the Evidence Act 1995 had effectively abrogated a common law rule that limited the admissibility of such certificates.

The court considered the scope and purpose of the Evidence Act 1995 and whether it had the effect of overriding the common law principle that restricted the admissibility of a Certificate of Conviction in cases of accessorial liability. The Crown argued that the Act had effectively abolished the common law rule, while Cunneen contended that the common law rule still applied. The court examined the provisions of the Act, including sections 135 and 136, to determine if they addressed the admissibility of such certificates in the context of accessorial liability. The court concluded that the Evidence Act 1995 did not abrogate the common law rule in question.

In reaching its decision, the court emphasised the importance of interpreting the Evidence Act 1995 in a manner that gave effect to its purpose and object. The court found that the Act did not explicitly address the admissibility of Certificates of Conviction in cases of accessorial liability, and therefore, the common law rule remained applicable. Consequently, the Crown's application to tender the Certificate of Conviction of the third party was refused. The court's decision was grounded in a careful analysis of the statutory provisions and their compatibility with the common law principles governing the admissibility of such evidence.

Orders

Orders of the court

Crown application to tender Certificate of Conviction of third party granted.

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

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Medium Neutral Citation:	R v Cunneen (No. 1) [2022] NSWDC 585
Hearing dates:	9 May 2022
Date of orders:	10 May 2022
Decision date:	18 May 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Crown application to tender Certificate of Conviction of third party granted.
Catchwords:	Accessorial liability; admissibility of Certificate of Conviction of principal offender of a felony; whether Evidence Act 1995 abrogates a common law rule.
Legislation Cited:	Evidence Act 1995 Civil Procedure Act 2005 Jury Act 1977
Cases Cited:	Gall v R [2015] NSWCCA 69 Hollington v Hewthorn [1843] KB 587 R v BD (1997) 94 A Crim R 131 R v Carter & Savage [1990] 47 A Crim R 55 R v Dawson [1961] VR 773; (1960) 106 CLR 1. R v Kirkby (2000) 2 Qd R 257; (1998) 105 A Crim R 323 R v Muriniti (2018) 97 NSWLR 991 R v Simpson (2008) QCA 413 R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 R v Welsh [1998] 105 A Crim R 448; [1998] VSCA 138; [1999] 2 VR 66
Texts Cited:	J D Heydon AC QC, Cross on Evidence (LexisNexis, 13th ed, 2022)
Category:	Procedural rulings
Parties:	Department of Public Prosecutions (Crown) James Anthony Cunneen (Accused)
Representation:	Counsel: A. Robertson (Crown) R. Cavanagh (Accused)
File Number(s):	2017/186919
Publication restriction:	Nil.