District Court
New South Wales
Medium Neutral Citation: R v Dean [2019] NSWDC 711 Hearing dates: 18 November 2019 Date of orders: 19 November 2019 Decision date: 19 November 2019 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 89 – 90.
Catchwords: EVIDENCE – pre-trial applications to reject evidence – ERISP interviews – references to Apprehended Violence Order against accused – admission to police regarding accused’s state of mind – relevance of intoxication – unfairness – discretion to exclude. Legislation Cited: Crimes Act 1900 (NSW) s 33B(1)(a)
Evidence Act 1995 (NSW)Cases Cited: Edwards v R (1993) 178 CLR 193
Papakosmas v The Queen (1999) 196 CLR 297
R v Dalley (2002) 132 A Crim R 169
R v Esposito (1998) 105 A Crim R 27
R v GK (2001) 53 NSWLR 317
R v Howard (2005) 156 A Crim R 343
R v Moffatt (2000) 112 A Crim R 201
R v Naa (2009) 76 NSWLR 271
R v Ostojic (1978) 18 SASR 188
R v Parker (1990) 19 NSWLR 177
R v Plevac (1995) 84 A Crim R 570
R v Shamouil [2006] NSWCCA 112
R v Swaffield (1998) 192 CLR 159
R v Taylor (NSWCCA, 18 April 1995)
Zoneff v The Queen (2000) 200 CLR 234Texts Cited: Odgers, Uniform Evidence Law (14th ed) Category: Procedural and other rulings Parties: Director of Public Prosecutions
Mr G DeanRepresentation: Counsel:
Solicitors:
Mr M Paish for the Director of Public Prosecutions
Mr T Ramrakha
Solicitor for the Director of Public Prosecutions
Legal Aid NSW
File Number(s): 2015/204183
Judgment
Introduction
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The accused has been arraigned on two counts on an indictment; the latter being an alternative charge to the former. They are:
That on 12 July 2015, at Fairfield West in the state of NSW, he possessed an offensive weapon with intent to commit the indictable offence of murder, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW).
That on 12 July 2015, at Fairfield West in the state of NSW, he possessed an offensive weapon with intent to commit the indictable offence of intimidation, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW).
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Upon arraignment, the accused pleaded not guilty to the first count and guilty on the second.
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By notice of motion dated 18 November 2019, the accused agitated for the following orders:
The trial of the Accused is to proceed on the whole of the indictment as presented notwithstanding the plea of guilty to the alternative charge on the indictment.
Pursuant to ss 56, 102 and/or 137 of the Evidence Act, the evidence of the following questions and/or answers in the Accused’s police interview of 13 July 2015 is not to be adduced into evidence at the trial of the accused:
The whole of QAs 73 – 95
Part of Q 113 – the words “from your shed”
The whole of QA 138
Part of A 142 – the words “Well my brother, he, he, we just scare cockies.”
The whole of QAs 146 –…
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- AGLC
- R v Dean [2019] NSWDC 711
- Case
- [2019] NSWDC 711
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the references to the AVO and the admission made by the accused constituted unfair prejudice to the accused, and whether these factors should be excluded under the discretion provided by the Evidence Act 1995 (NSW). The court needed to determine the relevance and probative value of this evidence against the potential for unfairness. Additionally, the court had to consider whether the accused’s intoxication should be admitted as evidence of state of mind and whether this could unfairly prejudice the accused.
The court found that the references to the AVO and the admission regarding the accused's state of mind and intoxication were relevant and probative. However, the court acknowledged that the admission of this evidence could potentially cause unfair prejudice. The court assessed the balance between the probative value and the prejudicial effect. The court ultimately concluded that the probative value outweighed the prejudicial effect, and therefore, the evidence was admissible. The court exercised its discretion under the Evidence Act to allow the evidence, considering it necessary for the fair determination of the charges.
The final orders were that the evidence gathered during the ERISP interviews, including references to the AVO and the accused's admission, would be admitted. The court held that the probative value of this evidence was significant enough to justify its admission despite the potential for prejudice. The trial proceeded with this evidence being considered by the jury.
Orders
Orders of the court
See paragraph 89 – 90.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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