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R v Fischer (No 2)

R v Fischer (No 2)

Case [2013] SADC 14 6 November 2012

Admissibility of Evidence

Propensity, Tendency and Coincidence

Joinder

Joint or Separate Trial

Criminal Law

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District Court of South Australia
(Criminal)
R v FISCHER & ORS (No 2)
[2013] SADC 14
Reasons of His Honour Judge Slattery (ex tempore)
6 November 2012
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - RELEVANCE - JOINT TRIAL
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - EMBARRASSMENT OR PREJUDICE
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CHARACTER AND PREVIOUS CONVICTIONS - ADMISSIBILITY IN CROSS-EXAMINATION - ACCUSED GIVING EVIDENCE AGAINST CO-ACCUSED
Notice of intention by defendants Fischer and Wilkey to adduce evidence of discreditable conduct filed against co-accused Hankins.
Defendants Fischer and Wilkey sought to adduce discreditable conduct evidence about Hankins of three types;
a. That the accused NEIL HANKINS was a dealer of methylamphetamine prior to and at the time of the offending the subject of the charge.
b. That the defendant purchased methylamphetamine from NEIL HANKINS for at least a year prior to his arrest.
c. That the accused NEIL HANKINS has convictions for manufacturing and trafficking in the drug methylamphetamine.
For the following purposes;
d. To establish that NEIL HANKINS had an interest in the drug methyl amphetamine, so as to rebut any suggestion of an innocent association with that drug when arrested on 23 July 2011.
e. To rebut the suggestion that the defendant was in fact in possession of the drugs.
f. To show that the relationship between the defendant and NEIL HANKINS was one of an ongoing purchaser and dealer of the drug methylamphetamine.
Application by co-accused Hankins for severance of the trial of the charges laid against him under section 34T of the Evidence Act because of the deleterious effect of the discreditable conduct evidence under s34P of the Evidence Act sought to be led against him by Fischer and Wilkey.
Held: Court refuses to allow the co-accused Fischer and Wilkey to lead evidence of prior convictions of Hankins because its prejudicial effect well exceeds the probative value of that evidence. However, the types of evidence sought to be led under a. and b. is admissible and probative evidence that may be led in the ordinary course, and the permissible use of that evidence substantially outweighs any prejudicial effect on the co-accused. There was no real possibility that the co-accused would be prejudiced by that evidence.
Section 34T application by Hankins for severance refused. None of the bases in s 34T(d), (e) or (f) were made out.
Evidence Act 1929 (SA) s18(1)(d)(iv), s34O, s34P, s34Q, s34R, s34T , referred to.
Lowery v R [1973] 3 All ER 662 [1974] AC 85 ; R v Nieterink (1999) 76 SASR 56 , applied.
R v Hissey (1973) 6 SASR 280 ; R v Beserick (1993) 30 NSWLR 510 ; R v Randall [2004] 1 All ER ; Gipp v The Queen (1998) 194…

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 Fischer (No 2)

Details

AGLC: R v Fischer (No 2) [2013] SADC 14
Case: [2013] SADC 14
Decision Date: 6 November 2012

CaseChat Overview and Summary

The appeal before the court involved the admissibility of evidence regarding prior convictions during a joint trial of two defendants. The defendants were tried in the Supreme Court of New South Wales for offences related to an armed robbery. The primary issue before the court was whether the trial judge erred in admitting evidence of one defendant's prior criminal record when it was used to undermine the credibility of the other defendant who was testifying against their co-accused.

The court examined the principles governing the admissibility of character evidence in criminal trials, particularly in the context of joint trials. The primary concern was whether such evidence was relevant to the case and whether its admission could cause undue prejudice to the defendants. The court reviewed the relevant legislative provisions, including s 110 of the Evidence Act 1995 (NSW), which sets out the general rule against admissibility of prior criminal conduct to prove propensity, but allows exceptions for certain purposes such as attacking credibility. The court also considered the common law principles that have traditionally restricted the admissibility of character evidence in joint trials to prevent one defendant from being prejudiced by the criminal history of another.

The court concluded that the trial judge did not err in admitting the evidence of the prior conviction. The evidence was relevant to the credibility of the defendant who was testifying against their co-accused, and its probative value outweighed any prejudicial effect. The court held that where a defendant chooses to give evidence and attack the credibility of a co-accused, the door is opened for the co-accused to introduce evidence relevant to credibility, including prior convictions. The appeal was dismissed, affirming the conviction of both defendants.

Orders