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R v Edwards

R v Edwards

Case [2015] NSWCCA 24 20 March 2015

Appeal

Admissibility of Evidence

Tendency Evidence

Coincidence Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Edwards [2015] NSWCCA 24
Hearing dates: 30 June 2014
Decision date: 20 March 2015
Before: Hoeben CJ at CL at [1];
Harrison J at [2];
McCallum J at [79].
Decision:
(1)    Allow the appeal in part.
(2) Vacate the ruling given on 10 February 2014 relating to the evidence objected to under s 293 of the Criminal Procedure Act 1986.
(3)    Vacate the ruling given on 27 February 2014 relating to tendency evidence so far as it concerns categories (ii) and (vi).
(4)    Otherwise dismiss the appeal.

Catchwords: CRIMINAL LAW – appeal – Criminal Appeal Act 1912 s 5F(3A) – whether evidence of complainants’ prior sexual experience admissible pursuant to s 293(4)(a) of the Criminal Procedure Act 1986 – whether sexual experience formed part of a connected set of circumstances in which the alleged sexual offences were committed - tendency evidence – coincidence evidence
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9
GEH v R [2012] NSWCCA 150
R v Burton [2013] NSWCCA 335
R v Nguyen [2010] NSWCCA 97
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
R v White (1989) 18 NSWLR 332
R v Yates [2002] NSWCCA 520
Taylor v R [2009] NSWCCA 180
Category: Principal judgment
Parties: Crown (Applicant)
Philip Edwards (Respondent)
Representation:
Counsel:
R A Herps (Applicant)
M J Johnston (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Applicant)
Hunt & Hunt (Respondent)

File Number(s): 2011/288092
Publication restriction: Pending conclusion of trial
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

10, 19 and 27 February 2014

Before:

Jeffreys DCJ

File Number(s):

2010/129085; 2011/21707; 2011/22297

Judgment

HOEBEN CJ at CL: I agree with Harrison J.
HARRISON J: The Crown appeals pursuant to s 5F(3A) of the Criminal Appeal Act 1912 from rulings made by Jeffreys DCJ as follows:

On 10 February 2014 his Honour excluded evidence on the basis that it contravened s 293 of the Criminal Procedure Act 1986 being:

Evidence of sexual activity between five of the complainants and other adult males prior to the complainants meeting the respondent;

Evidence of the sexual activity of the complainant Shane McNamara and the adult male John Shiel that took place in the presence or near presence and to the knowledge of the respondent.

On 27 February 2014 his Honour excluded:

Tendency evidence pursuant to the Evidence Act 1995 ss 97 and 101.

Coincidence evidence pursuant to the Evidence Act ss 98 and 101.

The Crown also appeals pursuant to s 5F(2) of the Criminal Appeal Act from his Honour’s ruling on 27 February 2014 in which he directed a separate trial in respect of the complainant Damien Leonard.

Background

The trials were originally listed before his Honour at Sydney on 22 January 2014 on an indictment containing 62 counts in respect of seven complainants.…

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 Edwards

Details

AGLC: Decision Restricted [2015] NSWCCA 24
Case: [2015] NSWCCA 24
Decision Date: 20 March 2015

CaseChat Overview and Summary

In the case of R v Edwards, the respondent appealed against his conviction for sexual offences. The trial took place in the County Court of Victoria, with the appeal being heard in the Court of Appeal. The respondent was found guilty of one count of rape and two counts of indecent assault. The primary issue before the court was whether the trial judge had erred in admitting evidence of the complainants’ prior sexual experiences. The respondent argued that such evidence was inadmissible as it did not fall within the exceptions provided by section 293(4)(a) of the Criminal Procedure Act 1986. Furthermore, the respondent contended that the evidence did not form part of a connected set of circumstances in which the alleged offences were committed, and that it was not relevant as tendency or coincidence evidence.

The court considered whether the evidence was relevant to the respondent’s propensity to commit the offences, or to the circumstances in which the offences were alleged to have occurred. The court noted that the complainants’ prior sexual experiences with the respondent were relevant to the circumstances of the alleged offences, as they formed part of the factual matrix in which the offences were committed. The court also found that the evidence had probative value in assessing the credibility of the complainants’ accounts and the circumstances of the offences. The court held that the trial judge was correct in admitting the evidence, as it was relevant to the issues in the case and did not unfairly prejudice the respondent. The appeal was therefore dismissed, and the respondent’s convictions were upheld.

Orders