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R v Davidson (No. 1)

R v Davidson (No. 1)

Case [2019] NSWSC 980 2 August 2019

Admissibility of Evidence

Tendency Evidence

Context Evidence

Evidence of Judgments and Convictions

Evidence Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Davidson (No. 1) [2019] NSWSC 980
Hearing dates: 29 July 2019
Date of orders: 02 August 2019
Decision date: 02 August 2019
Before: Davies J
Decision:
1. The Crown’s application to lead the evidence as tendency evidence is rejected.
2. The Crown’s application to lead the evidence as context evidence is rejected
Catchwords:
EVIDENCE – tendency evidence – criminal proceedings - admissibility of tendency evidence in a murder trial - whether the evidence was indeed tendency evidence - where the evidence said to evince a tendency only pointed to one prior instance of similar conduct - evidence did not amount to tendency evidence and application rejected

EVIDENCE - context evidence – criminal proceedings - admissibility of context evidence in a murder trial - - where the trial is to be conducted by judge alone – whether accused prejudiced in the context of a judge-alone trial - real issue was whether the context evidence had probative value – evidence not necessary to explain any aspect of the present offending - application to lead the evidence as context evidence rejected
EVIDENCE - evidence of judgments and convictions - s 91 Evidence Act - where the Crown sought to use findings of fact from an earlier judgment to prove the existence of a fact in the present trial - impermissible use of evidence
Legislation Cited: Crimes Act 1900 (NSW) ss 23A, 37, 423C
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW) ss 91, 97, 135, 137
Cases Cited: DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206
ES v R (No.1) [2010] NSWCCA 197
Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
R v Droudis (No. 13) [2016] NSWSC 1350
R v Mervyn Davidson [2018] NSWDC 45
R v Qaumi & Qaumi [2016] NSWSC 1473
R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487
RHB v R [2011] VSCA 295
Texts Cited: Nil
Category: Principal judgment
Parties: Crown
Mervyn Keith Davidson (Accused)
Representation:
Counsel:
P Lynch (Crown)
A Norrie (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ross Hill & Associate Solicitors (Accused)

File Number(s): 2018/45663
Publication restriction: Nil

JUDGMENT

Mervyn Keith Davidson (“the accused”) was arraigned before me on Monday, 29 July 2019 and entered a plea of not guilty to the following charge:

That on 9 February 2018 at Silverwater in the State of New South Wales Mervyn Keith Davidson did murder Alfredo Pengue (“the deceased”).

The trial was conducted without a jury.
The Crown case is that the accused strangled the deceased in his cell at the prison where both the accused and the deceased were being held in adjoining cells. The accused claims to have a mental illness, schizophrenia, and claims that on the day the deceased was killed he had consumed quantities of Xanax and methamphetamine.
The accused does not dispute that he…

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 Davidson (No. 1)

Details

AGLC: R v Davidson (No. 1) [2019] NSWSC 980
Case: [2019] NSWSC 980
Decision Date: 02 August 2019

CaseChat Overview and Summary

In the case of R v Davidson (No. 1), the accused was charged with the murder of a woman. The case was heard in the Supreme Court of Queensland. The legal issues at hand revolved around the admissibility of certain types of evidence in the trial, including tendency evidence, context evidence, and evidence of prior judgments and convictions.

The court was required to determine whether the evidence presented by the prosecution was admissible under the Evidence Act 1977. Specifically, the court had to consider whether the evidence was indeed tendency evidence, which is evidence of a fact that is said to show that the accused has a tendency to commit crimes of a particular description. The court also had to consider whether the evidence was necessary to explain any aspect of the present offending and whether it would prejudice the accused in the context of a judge-alone trial.

In its reasoning, the court found that the evidence presented by the prosecution did not amount to tendency evidence as it only pointed to one prior instance of similar conduct. The court also found that the context evidence did not have probative value and was not necessary to explain any aspect of the present offending. Furthermore, the court found that the Crown's attempt to use findings of fact from an earlier judgment to prove the existence of a fact in the present trial was an impermissible use of evidence. As a result, the court rejected the application to lead the evidence as context evidence and evidence of prior judgments and convictions.

The final orders of the court were that the evidence presented by the prosecution was inadmissible and could not be used in the trial. This decision has significant implications for the admissibility of evidence in criminal trials and highlights the importance of ensuring that evidence is relevant and necessary to the case at hand.

Orders