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 2002Cases 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 1540Texts 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…
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- AGLC
- R v Dwayne Anthony Carr (No 2) [2011] NSWSC 724
- Case
- [2011] NSWSC 724
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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