1. The appeal against the judgment of Judge Puckeridge declining to direct that the tendency rule not apply to evidence of DE be allowed and the judgment be set aside 2. The Court directs that pursuant to s 100(1) the tendency rule not apply to the evidence contained in the statement of DE dated 15 November 2004 nothwithstanding the failure of the Crown to give notice under 2 97(1) on the following conditions: (a) the trial of charges against the respondent presently listed before Judge Puckeridge be adjourned to a date to be fixed by the District Court; (b) the Crown pay the costs of the proceedings before Judge Puckeridge relating to the trial and the costs of the adjournment. 3. The Crown appeal is otherwise dismissed.
CATCHWORDS:
Criminal Law - Evidence - Tendency Evidence - failure to give notice - whether trial judge should have dispensed with notice requirementrs - whether evidence ought to be rejected in exercise of discretion.
D. Arnott with J. Crespo - Crown R. Sutherland SC with R. Driels - Respondent
SOLICITORS:
S. Kavanagh - Crown Galloways, Lawyers - Respondent
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
04/11/0630
LOWER COURT JUDICIAL OFFICER :
Puckeridge DCJ
2004/2990
SANTOW JA BELL J HOWIE J
THURSDAY 2 DECEMBER 2004
REGINA v RICHARD HARKER
Judgment
1 SANTOW JA: I agree with Howie J.
2 BELL J: I agree with Howie J.
3 HOWIE J: This is an appeal by the Crown brought pursuant to s 5F(3A) of the Criminal Appeal Act. The appeal relates to rulings made by his Honour Judge Puckeridge in the District Court in respect of evidence the Crown seeks to adduce in a trial listed for hearing before his Honour. The respondent has been indicted on 18 charges of what might be referred to as child sexual assault offences alleged to have been committed against the male complainant between January 1995 and December 1996. The complainant was at the relevant time between the ages of 12 and 14 years. The evidence, the subject of the appeal, is said by the Crown to be tendency evidence admissible under s 97(1) of the Evidence Act.
4 The Crown case is that the respondent engaged in homosexual intercourse and other indecent behaviour with the complainant whom he met in the early part of 1995. The complainant’s account is that he was introduced to the respondent through…
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
AGLC
R v Harker [2004] NSWCCA 427
Case
[2004] NSWCCA 427
Decision Date
CaseChat Overview and Summary
The case of R v Harker dealt with issues surrounding the admissibility of evidence in criminal trials, specifically tendency evidence, in the Supreme Court of Australia. The respondent, Harker, was on trial for a serious criminal offence. The prosecution sought to introduce evidence of the respondent's past criminal conduct to prove a tendency towards committing similar crimes. The primary issue was whether the trial judge should have allowed the use of this evidence despite the prosecution's failure to provide the required notice to the defence.
The court had to determine whether the failure to give notice of the intention to rely on tendency evidence justified the trial judge in dispensing with the notice requirements. Furthermore, the court examined whether the evidence should be rejected in the exercise of the trial judge's discretion under section 137 of the Evidence Act. The court was tasked with balancing the need for fair trial procedures with the importance of relevant evidence in establishing the case against the accused.
In its decision, the court held that the failure to give notice of the intention to rely on tendency evidence was a procedural error that could, in certain circumstances, warrant the exclusion of the evidence. The court emphasised the importance of the notice requirement as a means of ensuring a fair trial and protecting the rights of the accused. However, the court also recognised that the discretion to exclude evidence under section 137 could be exercised where the failure to give notice had a significant impact on the fairness of the trial. The court concluded that, in this case, the trial judge should have exercised that discretion and excluded the evidence due to the prejudicial effect of the notice failure. This outcome underscored the court's commitment to upholding the principles of fairness and justice in criminal proceedings.