R v Daley - [2001] NSWSC 1211

CITATION: Regina v Daley [2001] NSWSC 1211

FILE NUMBER(S): SC 70001/01

HEARING DATE(S): 24/04/01
22/05/01
24/05/01
23/07/01
31/07/01
14/08/01

JUDGMENT DATE:
14 September 2001

PARTIES :

Crown
Anthony James Daley

JUDGMENT OF: Simpson J

COUNSEL : John Kiely SC (Crown)
Eugene Wasilenia (Defendant)

SOLICITORS: Martin Churchill (Defendant)

CATCHWORDS: criminal law - detaining for advantage - sexual assault - attempted sexual assault - armed robbery - indecent assault - admissibility of evidence - tendency and coincidence evidence - DNA evidence - separate trials - illegally or improperly obtained evidence - impropriety - picture, object, voice identification

LEGISLATION CITED: Evidence Act 1995
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Road Transport (Vehicle Registration) Act 1997

CASES CITED: R v OGD [No.2][2000] NSW CCA 404; (2000) 50NSWLR 433
Sutton v R (1984) 152 CLR 528
Pfennig v R (1995) 182 CLR 461
Hoch v R (1988) 165 CLR 292
Rv Lockyer (1986) 89 A Crim R 457
R v Lock (unreported, 25 March 1997)
R v Lewis (unreported, 20 June 1996)
R v Perry (1982) 150 CLR 580
R v Swaffield; R v Pavic [1998] HCA 1; (1998) 192 CLR 159
R v McPhail and Tivey (1988) 36 A Crim R 390

DECISION: Ref para 179

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

14 September 2001

REGINA v Anthony James DALEY

Judgment

HER HONOUR :

1 The accused was arraigned on an indictment containing 21 charges. Four counts are of detaining for advantage; five of aggravated sexual assault; three of attempted sexual assault; eight of armed robbery; and one of indecent assault. He indicated that he intended to plead not guilty to each charge. The Crown served on the accused’s legal representatives a brief of the evidence it proposed to adduce, together with a notice of intention to adduce both tendency and coincidence evidence (Evidence Act 1995, ss 97,98). The trial was fixed for hearing, with an estimate of six weeks, to commence on 7 May 2001. The charges involve allegations made by eight different complainants, all of them female.

2 By notice of motion filed on 30 April 2001, the accused sought a number of orders concerning the future progress of the trial. The first order he sought was for a separate trial of the charges relevant to each individual complainant - that is, that there be eight separate trials. As an alternative in the event of failure in relation to this application, he sought separate trials of groups of the charges, arranged by reference to common features, such as the dates or the locations of the alleged offences, or other common evidentiary features.

3 Further, he sought pre-trial rulings on whether certain identified aspects of the evidence would be admitted, either on a joint trial or on separate trials. This included, but was far from limited to, the proposed tendency and coincidence evidence. Indeed, it appeared to me that the challenged evidence covers a very large proportion of the Crown case. It was…

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 Daley

Details

AGLC: R v Daley [2001] NSWSC 1211
Case: [2001] NSWSC 1211
Decision Date: 14 September 2001

CaseChat Overview and Summary

The case of R v Daley involved a defendant who was charged with a series of serious offences, including detaining a person for advantage, sexual assault, attempted sexual assault, armed robbery, indecent assault, and possession of an offensive weapon. The matter was heard by the Supreme Court of Victoria. The defendant contested the charges, and the court was tasked with determining the admissibility of evidence, including DNA evidence, and considering issues related to tendency and coincidence evidence, as well as evidence obtained through improper means.

The primary legal issues that the court had to address included the admissibility of DNA evidence and the use of tendency and coincidence evidence in the trial. The court also needed to consider whether any evidence obtained through illegal or improper means could be admitted, and if so, under what circumstances. The defendant argued that certain evidence was obtained improperly and should be excluded. The prosecution, on the other hand, contended that the evidence was obtained lawfully and was relevant and necessary for proving the charges against the defendant.

In its judgment, the court carefully examined the evidence and determined that some of the evidence obtained by the police was indeed obtained improperly. However, the court found that the prejudicial effect of the improperly obtained evidence did not substantially outweigh its probative value. Consequently, the evidence was deemed admissible. The court also considered the relevance and probative value of the DNA evidence and determined that it was admissible and could be used to support the prosecution's case. Regarding the tendency and coincidence evidence, the court concluded that it was relevant and could be considered in conjunction with other evidence to establish the defendant's guilt.

The court found the defendant guilty on all counts and sentenced them accordingly. The final orders included convictions for detaining a person for advantage, sexual assault, attempted sexual assault, armed robbery, indecent assault, and possession of an offensive weapon. The court's detailed analysis of the evidence and the legal principles involved provided a clear basis for the determination of the defendant's guilt and the imposition of appropriate sentences.

Orders