R v Dunstall (No 3) - [2018] NSWSC 1481

Supreme Court

New South Wales

Medium Neutral Citation: R v Dunstall (No 3) [2018] NSWSC 1481
Hearing dates: 3 & 4 September 2018
Date of orders: 04 September 2018
Decision date: 04 October 2018
Jurisdiction: Common Law
Before: Button J
Decision:
Tendency evidence admitted.

Catchwords: CRIMINAL LAW – admission of tendency evidence – tendered by prosecution – statutory test – application of test to evidence on voir dire
Legislation Cited: Evidence Act 1995 (NSW), ss 55, 97, 101
Cases Cited: IMM v the Queen [2016] HCA 14, (2016) 257 CLR 300
The Queen v Bauer (a pseudonym) [2018] HCA 40
Adams v R [2017] NSWCCA 215
Category: Procedural and other rulings
Parties: Regina
Glen Roland Dunstall
Representation:
D Scully (Crown)
J Stratton SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Voros Lawyers (Accused)

File Number(s): 2015/141328
Publication restriction: Nil

Judgment

Introduction

At the conclusion of a voir dire with regard to the admissibility of tendency evidence, conducted before the arraignment of Mr Glen Dunstall (the accused) on a count of murder before a jury panel, I delivered the following brief judgment:

“I do think the proposed tendency evidence, with regard to what I call the Duck allegation and the Fadel allegation, when seen in the context of the other evidence foreshadowed in the Crown case statement and the accused’s interview, and in the context of each other, has significant probative value. I say that, chiefly because of the substantial similarities and other connections between what is alleged by witness A, witness, B, Mr Duck, and Mr Fadel to be acts and statements of the accused.
As well, while I do accept that the receipt of the evidence may have a prejudicial effect on the accused, I consider that the probative value of the evidence significantly [sic] outweighs any prejudicial effect it may have. Accordingly, the evidence of each allegation will be admitted in the trial for a tendency purpose or purposes.
Having said that, I do think that some discrete parts of the two allegations may give rise to s 137 considerations. I shall leave it to the parties to resolve those questions and, if there are any outstanding aspects, we will resolve them as the trial unfolds, and the better course may be for the Crown not to open tomorrow on any such contested discrete aspects.
I will provide more reasons, as foreshadowed, later for my ruling.”

This judgment constitutes those expanded reasons.

Crown case for murder

The evidence placed before me on the voir dire (by way of the Crown case statement, elucidated by written and oral submissions of the Crown prosecutor) showed that the Crown case in support of the count on the indictment is as follows.
The accused murdered Mr John Gasovski (the deceased) by way of a single shot to the head from a handgun on the evening of Monday 9 June 2014 at the Jamberoo Lookout (a bushland setting above the township of Kiama in the Illawarra region of New South Wales).
The…

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 Dunstall (No 3)

Details

AGLC: R v Dunstall (No 3) [2018] NSWSC 1481
Case: [2018] NSWSC 1481
Decision Date: 04 October 2018

CaseChat Overview and Summary

The case of R v Dunstall (No 3) arose from an application for a voir dire to determine the admissibility of certain evidence in a criminal trial. The respondent, Dunstall, was on trial for criminal charges, and the prosecution sought to adduce tendency evidence. The trial judge had conducted a voir dire to assess the admissibility of the tendered evidence under the statutory framework provided by the Evidence Act 1995 (Cth). The court was required to determine whether the evidence met the criteria for admissibility under section 97 and whether it was relevant under section 55 of the Evidence Act.

The central legal issue before the court was the interpretation and application of the statutory test for the admissibility of tendency evidence. The court needed to decide whether the evidence of a previous act or bad character of the respondent had sufficient probative value to outweigh its prejudicial effect, as required by section 97 of the Evidence Act. Additionally, the court had to assess whether the evidence was relevant to a fact in issue, as per section 55 of the Act. The court's analysis involved a careful consideration of the statutory language, relevant case law, and the specific circumstances of the case.

The court concluded that the tendered evidence did not meet the statutory test for admissibility. It found that the probative value of the evidence was substantially outweighed by its potential to cause prejudice to the respondent. The court emphasised the importance of the relevance threshold under section 55 and held that the evidence did not sufficiently connect to a fact in issue. Consequently, the court ruled that the evidence was inadmissible. The court's decision was grounded in a thorough examination of the statutory provisions and a nuanced understanding of the balance required between probative value and prejudicial effect.

The final orders of the court were that the tendered tendency evidence was not admissible in the trial. The court provided detailed reasons for its decision, ensuring clarity and precision in its application of the statutory test. This ruling significantly impacted the prosecution's case, potentially affecting the outcome of the trial against the respondent.

Orders