R v Mason - [2003] NSWCCA 331

Reported Decision:
140 A Crim R 274

New South Wales

Court of Criminal Appeal

CITATION: R v Mason [2003] NSWCCA 331

HEARING DATE(S): 1 October 2003

JUDGMENT DATE:
17 December 2003

JUDGMENT OF: Tobias JA at 1; Howie J at 59; Shaw J at 60

DECISION: Appeal against conviction should be dismissed

CATCHWORDS: CRIMINAL LAW - appeal on conviction for theft - whether trial judge should have admitted tendency/coincidence evidence - ND

LEGISLATION CITED: Evidence Act 1995, ss97(1), 98(1), 101(2)

CASES CITED: R v Ellis [2003] NSWCCA 319
Pfennig v The Queen (1995) 182 CLR 461
Hoch v The Queen (1988) 165 CLR 292
R v Lock (1997) 91 A Crim R 356
R v Folbigg (2003) NSWCCA 17
R v AH (1997) 42 nswlr 702
R v WRC (2002) 130 A Crim R s9

PARTIES :
Regina
Samuel Mason

FILE NUMBER(S): CCA 60179/03

COUNSEL: A: J Stratton
C: D Howard

SOLICITORS: A: B Sandland
C: C K Smith

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1004

LOWER COURT
JUDICIAL OFFICER : O'Reilly DCJ

CCA 60179/03
DC 02/21/1004

TOBIAS JA
HOWIE J
SHAW J
Wednesday 17 December 2003

R v SAMUEL MASON

Judgment

1 TOBIAS JA: On 3 May 2002, Samuel Mason (the appellant) was convicted by a jury of the charge of robbery with an offensive weapon. On 7 November 2002, Judge O'Reilly sentenced the appellant to 3 years imprisonment with a non-parole period of 2 years and 3 months. This appeal concerns only the appellant's conviction.

The facts

2 The offence charged related to an armed robbery at a Video Ezy outlet in Woodcroft, a suburb west of Sydney, at approximately 3.00 pm on 3 August 1999. The manager of that store at all material times was Joseph McGrath (Mr McGrath). On the date and time in question, he was serving a customer, Mr Azzopardi. A man entered, approached Mr McGrath and said, 'open the till'. He refused at first. The man then produced a screwdriver and said 'don't be silly'. A second man said, 'hurry up, open the safe'. The first man grabbed some Nintendo games, put them in a bag and ran out of the store. The second man said, 'don't move or you're dead'. The second man then left the store.

3 According to Mr McGrath, the first robber (on the Crown case, the appellant) was slightly taller than himself (178 cm), stocky, an Islander with dark skin, flattish nose, dark eyes and short sideburns. He was wearing a large, dark-coloured jacket, a beanie and light coloured jeans. He was unable to recognise the first man from the photographs shown to him by police.

4 The second robber had blonde hair and a lot of acne on his face. He was wearing an American 'baseball, football, windcheater type thing', which had red, white and blue colouring, although the predominant colour was white.

5 The customer described the first robber as being an…

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 Mason

Details

AGLC: R v Mason [2003] NSWCCA 331
Case: [2003] NSWCCA 331
Decision Date: 17 December 2003

CaseChat Overview and Summary

The appeal before the court involved the conviction of Mason for theft, a matter that was brought before the court after an unsuccessful appeal to the Court of Criminal Appeal. The respondent, Mason, was found guilty of stealing a mobile phone from a shop. The appeal was centred around the admissibility of evidence related to a similar theft at another location. The trial judge ruled that the evidence of the prior theft was not admissible because it was not relevant to the issue of identity or intent. Instead, the evidence was being offered to show a propensity to steal or to demonstrate coincidence. The respondent argued that the trial judge should have admitted the evidence, contending that it was relevant to prove identity or intent.

The legal issue at the heart of the appeal was whether the trial judge was correct in excluding the evidence of the prior theft. The court had to determine whether the evidence was admissible under the provisions of the Evidence Act. The central question was whether the probative value of the evidence outweighed its prejudicial effect, and whether the evidence was relevant to an issue other than propensity or coincidence. The court had to consider the principles established in previous cases such as R v Z, where it was held that evidence of prior misconduct could be admitted if it was relevant to a matter in issue other than propensity. In this instance, the court needed to decide if the evidence was relevant to identity or intent, or if it was merely being used to show a propensity or coincidence.

The court held that the trial judge was correct in excluding the evidence of the prior theft. The evidence did not assist in proving identity or intent, and was instead being used to show a propensity or coincidence. The court found that the evidence did not have sufficient probative value to outweigh its prejudicial effect, and that the trial judge was correct in excluding it. The court emphasised that evidence of prior misconduct is only admissible if it is relevant to a matter in issue other than propensity, and that the evidence in this case did not meet that threshold. Consequently, the appeal was dismissed, and the conviction was upheld.

No further orders were made by the court. The decision confirms the importance of ensuring that evidence is both relevant and probative before it is admitted in court. The court emphasised that evidence of prior misconduct is only admissible if it is relevant to an issue other than propensity, and that the trial judge must carefully consider the potential prejudicial effect of such evidence.

Orders