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R v Gale; R v Duckworth

R v Gale; R v Duckworth

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Gale; R v Duckworth [2012] NSWCCA 174
Hearing dates: 3 August 2011
Decision date: 17 August 2012
Before: McClellan CJ at CL at [1]; Simpson J at [2]; Fullerton J at [51]
Decision:
The Crown appeal dismissed

Catchwords: CRIMINAL LAW - interlocutory Crown appeal - larceny - admissibility of evidence - coincidence evidence - conditions of admissibility - reasonable notice - formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value - evidence not admissible if conditions not met - process for determination of admissibility - differing functions of judge and jury - whether evidence capable of having significant probative value - whether probative value of evidence substantially outweighs its prejudicial effect - probative value does not substantially outweigh prejudicial effect - Criminal Appeal Act 1912, s 5F(3A), s 5F(5) - Evidence Act 1995, s 97, s 98, s 100(2), s 101, s 165
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9
House v The King [1936] HCA 40; 55 CLR 499
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
DAO v R [2011] NSWCCA 63
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Ford [2009] NSWCCA 306; 201 A Crim R 451
R v RN [2005] NSWCCA 413
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
Category: Principal judgment
Parties:
2008/170921
Director of Public Prosecutions (Applicant)
Brett Terence Gale (Respondent)
2008/268965
Director of Public Prosecutions (Applicant)
Wayne Alfred Duckworth (Respondent)
Representation: Counsel
S Dowling (Applicant)
C Bruce SC (Gale)
PD Rosser QC/D Moss (Duckworth)
Solicitors
Director of Public Prosecutions (Applicant)
Aboriginal Legal Service (Gale)
Scott James (Duckworth)

File Number(s): 2008/170921; 2008/268965
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-04-05 00:00:00

Before:

Black DCJ

File Number(s):

2008/170921; 2008/268965

Judgment

McCLELLAN CJ at CL: I agree with Simpson J.

SIMPSON J: This is an appeal by the Director of Public Prosecutions ("the DPP") pursuant to s 5F(3A) of the Criminal Appeal Act 1912, against a ruling made on 5 April 2011 on the admissibility of evidence in criminal proceedings in which each of the respondents is charged with larceny, allegedly committed on 26 June 2006. Such an appeal lies only if the ruling "eliminates or substantially weakens" the prosecution case. Neither respondent has argued that the ruling does not have that quality, and there is therefore no jurisdictional hurdle to the appeal. The evidence in question is sought to be tendered as coincidence evidence pursuant to s 98 of the Evidence Act 1995.

Background

The following account is drawn from statements presented to the…

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.

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Details

Case: [2012] NSWCCA 174
Decision Date: 17 August 2012

CaseChat Overview and Summary

In the case of R v Gale; R v Duckworth, the High Court was asked to determine the admissibility of certain evidence in a criminal trial involving charges of larceny. The appellants, Gale and Duckworth, were convicted of larceny and appealed against their convictions on the basis that the trial judge had erred in admitting certain evidence. The primary issue before the Court was whether the trial judge had correctly applied the legal principles governing the admissibility of evidence under the Evidence Act 1995 (Cth), particularly in relation to the admissibility of coincidence evidence.

The Court considered whether the trial judge had properly assessed the admissibility of the evidence under section 97 of the Evidence Act, which requires the court to exclude evidence if its probative value is substantially outweighed by its prejudicial effect. The Court also examined whether the judge had correctly applied the conditions set out in section 165 of the Act, which relate to the admissibility of evidence of a person's bad character or criminal record. Specifically, the Court needed to determine whether the judge had given the prosecution reasonable notice of the admissibility issues and whether the evidence, either by itself or in conjunction with other evidence, was capable of having significant probative value. Furthermore, the Court assessed whether the judge had properly balanced the probative value of the evidence against its prejudicial effect, in accordance with section 101 of the Act.

The Court found that the trial judge had not adequately considered the prejudicial effect of the evidence in relation to the appellants' convictions. The judge had failed to give the prosecution reasonable notice of the admissibility issues and had not sufficiently assessed whether the probative value of the evidence substantially outweighed its prejudicial effect. Consequently, the Court concluded that the evidence should not have been admitted. The Court emphasised the importance of correctly applying the legal principles governing the admissibility of evidence and the differing functions of the judge and the jury in criminal trials. The Court allowed the appeals, quashed the convictions, and ordered a retrial.

Orders