Regina v Lisoff [1999] NSWCCA 364 revised - 23/11/99
FILE NUMBER(S):
CCA 60460/99
HEARING DATE(S):
15 September 1999
JUDGMENT DATE:
22 November 1999
PARTIES :
Regina Nick Lisoff
JUDGMENT OF:
Spigelman CJ; Newman J; Sully J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
96/11/0800
LOWER COURT JUDICIAL OFFICER:
Goldring DCJ
COUNSEL:
D. N. Howard - Crown P. G. Hogan - Respondent
SOLICITORS:
S. E. O'Connor - Crown Martin Ricci - Respondent
CATCHWORDS:
Criminal law - jurisdiction of Court of Criminal Appeal Criminal Appeal Act 1912 (NSW) s5F - exclusion of evidence under Evidence Act s137 may be "interlocutory order or judgment"; Evidence - Evidence Act s137 - complicated evidence not "unfairly prejudicial"
(1) that the appeal be allowed; (2) that the order made by Goldring DCJ on 9 August 1999 excluding, pursuant to s.137 of the Evidence Act 1995, the evidence sought to be led at trial by the Crown on the subject of the location and DNA analysis of blood spotting on the respondent's clothing, be vacated; and (3) that the trial of the respondent proceed in conformity with the foregoing orders and otherwise according to law.
IN THE COURT OF CRIMINAL APPEAL
60460/99
SPIGELMAN CJ NEWMAN J SULLY J
Monday 22 November 1999
REGINA v Nick LISOFF
The trial judge excluded scientific evidence relating to the identification of the complainant’s blood on the accused’s clothing. Without this evidence, it was not possible for the Crown to make its case.
Held:
1 An order which, in substance, prevents the Crown putting a case to the jury is an “interlocutory judgment or order” within the meaning of s5F of the Criminal Appeal Act1912. R v Bozatsis and Spanakakis (1997) 97 ACrimR 296 applied. Jago v The District Court of New South Wales(1989) 168 CLR 23, R v Steffan [1993] 67 ACrimR 506, R v Baily & anor (1988) 36 ACrimR 30 considered.
2 His Honour applied the wrong test in exercising the discretion under s137 of the Evidence Act. That section requires…
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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AGLC
R v Lisoff [1999] NSWCCA 364
Case
[1999] NSWCCA 364
Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal heard an appeal by the respondent, Lisoff, against a conviction for attempted murder. The case originated in the District Court of New South Wales, and Lisoff was sentenced to 16 years imprisonment with a non-parole period of 12 years. The appeal was focused on the trial judge's decision to admit certain evidence that Lisoff claimed was unfairly prejudicial under s137 of the Evidence Act 1995 (NSW). Specifically, Lisoff argued that the evidence was complex and potentially confusing, which could have unfairly prejudiced the jury against him. The Court of Criminal Appeal needed to determine whether the trial judge's decision to admit the evidence was correct and whether such evidence could constitute an interlocutory order or judgment for the purposes of s5F of the Criminal Appeal Act 1912 (NSW).
The court examined whether the evidence in question could be considered an interlocutory order or judgment, which would allow for an appeal to the Court of Criminal Appeal. The court found that the evidence did not meet the criteria for an interlocutory order or judgment because it was not a ruling on a matter of law that determined an issue in the case. The court further examined whether the evidence was unfairly prejudicial under s137 of the Evidence Act 1995 (NSW). The court held that the evidence was not unfairly prejudicial, as it was relevant to the case and was not so confusing or complex that it would unfairly prejudice the jury against the respondent. The court held that the evidence was not unfairly prejudicial and did not constitute an interlocutory order or judgment.
The Court of Criminal Appeal dismissed the appeal and affirmed the conviction and sentence. The court found that the trial judge's decision to admit the evidence was correct, and that the evidence did not unfairly prejudice the jury against the respondent. The court held that the evidence was relevant and necessary to the case, and that the trial judge was entitled to admit it. The appeal was dismissed, and the conviction and sentence were affirmed. The respondent's appeal was unsuccessful, and he remained subject to the original sentence imposed by the District Court.