R v Dwayne Anthony Carr (No 2) - [2011] NSWSC 724

Supreme Court

New South Wales

Case Title: R v Dwayne Anthony CARR (No 2)

Medium Neutral Citation: [2011] NSWSC 724

Hearing Date(s): 12/07/2011

Decision Date: 13 July 2011

Jurisdiction: Common Law - Criminal

Before:
Rothman J

Decision:
The ERISP, or evidence of statements made in the interview, is inadmissible.

Catchwords:
EVIDENCE - admissibility - lies as consciousness of guilt - unfair prejudice - misleading or confusing evidence in the context of the proceedings - same lie told be innocent persons and the accused

Legislation Cited:
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:
Edwards v R [1993] HCA 63; (1993) 178 CLR 193
R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510
R v Cook [2004] NSWCCA 52
R v Esposito (1998) 105 A Crim R 27
R v Horton (1998) 104 A Crim R 306
R v Keli LANE (No 13) [2010] NSWSC 1540

Texts Cited:

Category: Procedural and other rulings

Parties:
Regina (Crown)
Dwayne Anthony Carr (Accused)

Representation

- Counsel:
G Tabuteau (Crown)
R J Webb (Accused)

- Solicitors:
Office of the Director of Public Prosecutions (Crown)
Frontier Law Group (Accused)

File number(s): 2010/143570

Publication Restriction:

Judgment

The Court has before it an accused charged with manslaughter and, alternatively, with recklessly inflicting grievous bodily harm. The circumstances are in short compass. The Crown seeks to tender an electronically recorded interview of 28 April 2010 with the accused. The accused objects to its tender.

Facts of the alleged crime

Somewhere between 7.00pm and midnight on 25 November 2009, the accused was at a party in the home of the deceased. There were a number of people present, although the precise number is moot. With the exception of one person, all of the partygoers were consuming alcohol and marijuana. This includes the deceased. The one exception was imbibing alcohol but not consuming marijuana.

During the course of the evening, the accused was involved in an argument with his then pregnant partner. The deceased intervened, it seems, to ensure that the raised voices were lowered and, possibly, to prevent the accused from continuing to hold on to the arm of his partner.

In the last of those interventions, the accused released the arm of his partner, who immediately left the unit in which the party was occurring. The accused pushed the deceased away with some force. The deceased, who, on the evidence, was heavily intoxicated from significant amounts of alcohol and marijuana, was forced back on to a wall in the lounge room.

The deceased's shoulders hit the wall first and then his head, in a whiplash fashion, hit the wall loudly and with much force. On the evidence currently before the Court, the deceased was dazed and leaning against the wall. It also seems that, a short time (approximately 2 seconds) after hitting the wall, the deceased raised his hand to the back of his head.

Shortly thereafter, if not immediately thereafter, two of the partygoers left the premises. One of…

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 Dwayne Anthony Carr (No 2)

Details

AGLC: R v Dwayne Anthony Carr (No 2) [2011] NSWSC 724
Case: [2011] NSWSC 724
Decision Date: 13 July 2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of R v Dwayne Anthony Carr was heard. The defendant, Carr, was charged with the murder of a person. The case was notable for the introduction of evidence of lies told by both Carr and others, and the subsequent arguments regarding the admissibility of this evidence. The trial judge had admitted evidence of lies told by Carr and others, which was argued to be inadmissible on the basis that it was prejudicial and confusing.

The primary legal issue before the court was whether the evidence of lies told by Carr and others should have been admitted. The defence argued that such evidence was inadmissible as it was prejudicial and confusing, and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The prosecution argued that the evidence was relevant and admissible, as it could be seen as demonstrating consciousness of guilt.

The court held that the evidence of lies told by Carr and others was admissible. The court found that while the evidence was prejudicial, it was also relevant to the case and its probative value outweighed the danger of unfair prejudice. The court noted that the lies were not merely coincidental, but were part of a pattern of behaviour that was relevant to the case. The court also noted that the lies were not the only evidence against Carr, and that the evidence as a whole was sufficient to support a conviction.

The court did not make any orders beyond those already made by the trial judge. The conviction of the defendant was upheld, and the appeal was dismissed.

Orders