R v Gordon (No 4) - [2016] NSWSC 312

Supreme Court

New South Wales

Medium Neutral Citation: R v Gordon (No 4) [2016] NSWSC 312
Hearing dates: 29 February 2016; 1, 2, 3 March 2016
Date of orders: 03 March 2016
Decision date: 03 March 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
Evidence of usual practice and a demonstration by Senior Constable Vercoe are admissible

Catchwords: CRIMINAL LAW – evidence – evidence of usual practice – admissible as evidence of what usually done
CRIMINAL LAW – evidence – demonstration of usual practice – whether unfairly prejudicial – where demonstration to be short
Legislation Cited: Evidence Act 1995 (NSW)
Category: Consequential orders (other than Costs)
Parties: Regina (Crown);
Donald Patrick Gordon (Accused)
Representation:
Counsel: Mr J McLennan SC (Crown);
Mr J Watts (Accused)
Solicitors: Director of Public Prosecutions (NSW)
Aboriginal Legal Service (NSW/ACT)

File Number(s): 2013/337128
Publication restriction: Non publication order

EX TeMPORE Judgment (REVISED)

Before the jury were discharged this morning, Senior Constable Aliesha Vercoe was giving her evidence in chief. She is a police officer attached to the forensic services group and is a crime scene examiner whose duties include the examination, recording, and interpretation of scenes of alleged crimes and other incidents. Her duties extend to the collection, preservation and, in some cases, forensic examination of physical evidence from such scenes.
At the conclusion of yesterday’s proceedings the learned Crown Prosecutor indicated that he proposed to call evidence from Senior Constable Vercoe involving first, a demonstration of the ease with which her personal protective equipment can be donned and discarded, and, secondly, of her usual practice in carrying out the process of examining, recording, collecting and preserving items of interest at a crime scene.
Mr Watts objects to evidence in that form. He objects to the proposed demonstration on the grounds of relevance and if I am against him on that, alternatively he applies to have the evidence excluded as unfairly prejudicial. So far as the evidence of her usual practice is concerned, he objects to that on the grounds of relevance and argues that the witness should be restricted to giving evidence of what she now actually recalls of events that she saw, heard or otherwise perceived during her attendance at this particular crime scene.
A major issue in the case is whether the accused, Mr Gordon, struck the deceased, Mr Cotter, a number of times with a large rock weighting approximately 21 kilograms found at the crime scene during Senior Constable Vercoe’s inspection. She took samples of blood and conducted other testing at the scene in relation to this boulder and I am informed that other expert evidence led later in the trial will demonstrate that the red fluid on the boulder is blood, and it is the blood of Mr Cotter. Samples taken from parts of the rock not blood stained revealed the trace DNA of Mr Cotter, Mr Gordon and of a third person.
I should interpolate that Mr Gordon accepts that he did injure Mr Cotter on the evening of 6…

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 Gordon (No 4)

Details

AGLC: Decision Restricted [2016] NSWSC 312
Case: [2016] NSWSC 312
Decision Date: 03 March 2016

CaseChat Overview and Summary

In this case, the defendant, Gordon, was charged with a crime and faced trial. The nature of the dispute involved the admissibility of certain evidence related to the defendant's usual practice. The case was heard in the High Court of Australia. The prosecution sought to introduce evidence of the defendant's usual practice to demonstrate what was typically done in similar situations. The defendant objected to this evidence, arguing that it was unfairly prejudicial and not relevant to the specific circumstances of the case.

The central legal issue before the court was whether evidence of the defendant's usual practice could be admitted to show what was typically done. Additionally, the court had to determine whether the demonstration of this usual practice would be unfairly prejudicial to the defendant. The court considered the balance between the probative value of the evidence and the potential prejudice it might cause.

The High Court found that evidence of the defendant's usual practice could be admitted to show what was typically done, as it had probative value in understanding the context of the alleged crime. The court acknowledged that such evidence could be prejudicial but concluded that the prejudicial effect did not outweigh its probative value. The demonstration of the usual practice was to be brief, mitigating potential prejudice. The court's reasoning emphasised the importance of context and proportionality in assessing the admissibility of such evidence. Ultimately, the court ruled in favour of the prosecution, allowing the evidence to be presented to the jury.

Orders