R v Dean - [2019] NSWDC 711

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 234
Texts Cited: Odgers, Uniform Evidence Law (14th ed)
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Mr G Dean
Representation:
Counsel:
Mr M Paish for the Director of Public Prosecutions
Mr T Ramrakha
Solicitors:
Solicitor for the Director of Public Prosecutions
Legal Aid NSW

File Number(s): 2015/204183

Judgment

Introduction

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).

Upon arraignment, the accused pleaded not guilty to the first count and guilty on the second.
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 –…

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 Dean

Details

AGLC: R v Dean [2019] NSWDC 711
Case: [2019] NSWDC 711
Decision Date: 19 November 2019

CaseChat Overview and Summary

In the case of R v Dean, the accused was facing charges of assault and affray. The dispute centred on whether certain evidence gathered during interviews conducted under the Evidence and Related Services Investigation Powers (ERISP) Act should be excluded from the trial due to perceived unfairness. Specifically, the issue was whether the police's reference to an Apprehended Violence Order (AVO) against the accused and the accused's admission regarding their state of mind and intoxication should be admitted. The matter was heard in the Supreme Court of New South Wales.

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

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

Full text does not contain this section.

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 234
Texts Cited:	Odgers, Uniform Evidence Law (14th ed)
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr G Dean
Representation:	Counsel: Mr M Paish for the Director of Public Prosecutions Mr T Ramrakha Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid NSW
File Number(s):	2015/204183