R v Curtis - [2016] NSWSC 660

Supreme Court

New South Wales

Medium Neutral Citation: R v Curtis [2016] NSWSC 660
Hearing dates: 4 May 2016
Date of orders: 04 May 2016
Decision date: 26 May 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Ruling as to proposed coincidence evidence

Catchwords:
EVIDENCE – coincidence rule – where proposed coincidence evidence admissible for another purpose – whether improbability reasoning permissible to prove acts and states of mind specified in coincidence notice
CRIMINAL LAW – conspiracy – where similarities in alleged overt acts relied upon to prove anterior agreement – assessment of prejudicial effect on accused
Legislation Cited: Corporations Act 2001 (Cth); s 1043A(1)(d), s 1311(1)
Crimes Act 1914 (Cth); s 21E
Evidence Act 1995 (NSW); s 98, s 101, s 192A
Category: Procedural and other rulings
Parties: Peter Oliver Curtis (Accused)
Regina (Crown)
Representation:
Counsel:
H Dhanji SC, G Huxley (Accused)
D Staehli SC, L Crowley (Crown)
Solicitors:
Clifford Chance (Accused)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2013/12117

Judgment

HER HONOUR: Oliver Curtis stands charged with an offence of conspiracy to commit the offence of insider trading contrary to ss 1043A(1)(d) and 1311(1) of the Corporations Act 2001 (Cth). His trial commenced with a jury on 11 May 2016. The Crown closed its case yesterday (25 May 2016).
The Crown gave notice in advance of the trial of its intention to adduce coincidence evidence. The evidence in question is identified in an amended coincidence notice dated 29 January 2016. By notice of motion filed 7 March 2016, the accused sought a pre-trial ruling in the following terms:

that the coincidence evidence identified in the Amended Notice of Intention to Adduce Coincidence Evidence is not admissible for the purpose of proving that the accused did a particular act and/or had a particular state of mind identified in that Notice on the basis that, having regard to the similarities in the events and/or the circumstances in which they occurred, it is improbable that the events occurred coincidentally pursuant to ss 98 and 101 of the Evidence Act.

This judgment determines that application.
The application invoked the Court’s authority under s 192A of the Evidence Act 1995 (NSW). That section authorises the Court, if it considers it to be appropriate to do so, to give a ruling or make a finding in relation to a question as to the admissibility or use of evidence proposed to be adduced before the evidence is adduced in the proceedings. It will often be appropriate to give such a ruling in advance of the trial where the proposed coincidence evidence would not otherwise be admissible. However, it is common ground in the present case that the evidence is relevant for another purpose (to prove overt acts pursuant to the alleged agreement). Accordingly, the parties accepted that it would not be necessary for the Court to rule on the coincidence issue before the evidence was adduced.
The indictment on which the accused was arraigned alleges the following offence:

Between about 1 May 2007 and…

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 Curtis

Details

AGLC: R v Curtis [2016] NSWSC 660
Case: [2016] NSWSC 660
Decision Date: 26 May 2016

CaseChat Overview and Summary

The case of R v Curtis involved the Crown appealing the decision of the Supreme Court of Victoria to exclude coincidence evidence in a criminal trial. The respondent, Curtis, was on trial for conspiracy to commit an offence, and the Crown sought to adduce coincidence evidence in relation to other similar offences for which Curtis was not on trial. The Supreme Court of Victoria excluded the evidence on the basis that it would be unfairly prejudicial to Curtis. The Court of Appeal was asked to determine whether the trial judge erred in excluding the coincidence evidence.

The appeal raised two main issues. The first was whether the improbability of the coincidence evidence being a mere coincidence could be considered by the jury in determining whether the acts and states of mind specified in the coincidence notice were proved. The second was whether the trial judge erred in considering the prejudicial effect of the coincidence evidence on Curtis in determining its admissibility.

The Court of Appeal held that the trial judge erred in excluding the coincidence evidence. The court held that the improbability of the coincidence evidence being a mere coincidence was a relevant consideration for the jury in determining whether the acts and states of mind specified in the coincidence notice were proved. The court held that while the prejudicial effect of the evidence on Curtis was a relevant consideration in determining its admissibility, the trial judge should have balanced this against the probative value of the evidence. The Court of Appeal held that the trial judge did not adequately consider the probative value of the evidence, and therefore erred in excluding it. The appeal was allowed, and the matter was remitted to the Supreme Court of Victoria for a new trial.

The Court of Appeal made no orders as to costs.

Orders