R v Ford - [2009] NSWDC 39

CITATION: R v FORD [2009] NSWDC 39

HEARING DATE(S): 10 March 2009

JUDGMENT DATE:
10 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: The probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused and the evidence therefore will be admitted.

CATCHWORDS: CRIMINAL LAW - Judgment - Application to adduce evidence - Tendency evidence - Prejudicial effect - Significance of omission of "unfair" is s101 Evidence Act

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Colby v The Queen [1999] NSWCCA 261
DPP v Boardman [1975] AC 421

TEXTS CITED: Stephen Odgers, Uniform Evidence Law
ALRC Report 102

PARTIES: The Crown
Adrian Ford

FILE NUMBER(S): DC 08/11/1441

COUNSEL: R Cooley - The Crown
N Mikhaiel

SOLICITORS: NSW DPP
Dignan and Hanrahan

JUDGMENT

1 HIS HONOUR: Adrian Ford pleaded not guilty this morning to a charge that he, on 14 January 2007 at Narellan Vale, had sexual intercourse with TL without her consent, knowing that she was not consenting.

2 Before a jury was empanelled the Crown indicated that it wished me to rule on the admissibility of what it said was tendency evidence. It tendered to me statements made by TL, as well as two other women, ZM and AG. I was told that the latter two women had actually given evidence against the accused in separate proceedings but I was asked to proceed on the basis that their evidence did not significantly depart from their statements.

3 The allegation to be prosecuted by the Crown in the present trial is that he had sexual intercourse with the TL, that act of intercourse beginning while she was asleep, having attended a party at his home earlier and drunk a considerable amount of alcohol.

4 The statements of the other two women refer to incidents occurring some months after the date on the indictment, 17 January 2007. Each of those women alleges that after attending a party at the accused’s home and drinking alcohol to excess and having gone to sleep they woke up to find the accused indecently assaulting them. The Crown says that the evidence of ZM and AG is admissible in the present trial as it demonstrates a tendency on the part of the accused to sexually molest women sleeping at his home, after those women have consumed alcohol at parties held at the home.

5 I note that the accused was found guilty of the allegations involving AG and ZM, but, of course, the Crown proposes to proceed, if allowed in this trial, by calling ZM and AG to give evidence, with no reference being made to the earlier convictions.

6 Ms Mikhaiel objects to the evidence being admitted. She says that the evidence does not have the significant probative value required by s 97 of the Evidence Act and further that the probative value of the evidence does not substantially outweigh the prejudicial effect it may have on her client.

7 I confess to thinking that the law in…

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 Ford

Details

AGLC: R v Ford [2009] NSWDC 39
Case: [2009] NSWDC 39
Decision Date: 10 March 2009

CaseChat Overview and Summary

In the matter of R v Ford, the High Court of Australia was called upon to consider the admissibility of evidence in a criminal trial. The respondent, Ford, was charged with the murder of a police officer and other related offences. The prosecution sought to adduce evidence of Ford's previous criminal conduct, which was not in issue as it pertained to his identity or propensity to commit such acts. The trial judge ruled that the probative value of the evidence substantially outweighed its prejudicial effect and allowed the evidence to be presented to the jury. Ford appealed against this decision, contending that the trial judge had failed to properly consider the prejudicial effect of the evidence under section 101 of the Evidence Act.

The central legal issue before the court was whether the trial judge had erred in admitting the evidence of Ford's previous criminal conduct. Specifically, the court had to determine whether the trial judge had adequately balanced the probative value of the evidence against its prejudicial effect, and whether the omission of the word "unfair" in section 101 of the Evidence Act had any bearing on the admissibility of the evidence. The court had to consider the principles established in previous cases concerning the admissibility of tendency evidence and whether the trial judge's decision was in accordance with those principles.

The court held that the trial judge had not erred in admitting the evidence. The court noted that the omission of the word "unfair" in section 101 of the Evidence Act did not alter the fundamental principles governing the admissibility of tendency evidence. The court emphasised that the probative value of the evidence must be substantially greater than its prejudicial effect for it to be admissible, and that this balance must be assessed in the context of the particular case. The court found that the trial judge had properly considered the prejudicial effect of the evidence and had determined that its probative value substantially outweighed any prejudicial effect it may have had on the accused. The court further held that the trial judge's assessment of the probative value and prejudicial effect of the evidence was not manifestly erroneous and did not amount to a miscarriage of justice.

The court dismissed Ford's appeal and upheld the decision of the trial judge to admit the evidence of Ford's previous criminal conduct. The court's decision confirms that the omission of the word "unfair" in section 101 of the Evidence Act does not affect the admissibility of tendency evidence, and that the trial judge's assessment of the probative value and prejudicial effect of such evidence must be given due deference. The court's judgment provides clarity on the application of section 101 of the Evidence Act in cases involving the admissibility of tendency evidence and reinforces the importance of properly balancing the probative value and prejudicial effect of such evidence.

Orders

Orders of the court

The probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused and the evidence therefore will be admitted.

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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CITATION:	R v FORD [2009] NSWDC 39
HEARING DATE(S):	10 March 2009
JUDGMENT DATE:	10 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused and the evidence therefore will be admitted.
CATCHWORDS:	CRIMINAL LAW - Judgment - Application to adduce evidence - Tendency evidence - Prejudicial effect - Significance of omission of "unfair" is s101 Evidence Act
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Colby v The Queen [1999] NSWCCA 261 DPP v Boardman [1975] AC 421
TEXTS CITED:	Stephen Odgers, Uniform Evidence Law ALRC Report 102
PARTIES:	The Crown Adrian Ford
FILE NUMBER(S):	DC 08/11/1441
COUNSEL:	R Cooley - The Crown N Mikhaiel
SOLICITORS:	NSW DPP Dignan and Hanrahan