Court of Criminal Appeal
New South Wales
Case Title: R v MR Medium Neutral Citation: [2013] NSWCCA 236 Hearing Date(s): 19 September 2013 Decision Date: 18 October 2013 Before: Hoeben CJ at CL at [1]
Schmidt J at [2]
Beech-Jones J at [20]Decision: 1. The ruling of Quirk DCJ on 05.03.13 that the material set out in the coincidence notice dated 26.02.13 as amended is not admissible for coincidence purposes be set aside.
2. The material set out in the coincidence notice dated 26.02.13 as amended be admitted for coincidence purposes.
3. The order made by Quirk DCJ on 05.03.13 severing the counts on the indictment be set aside.
4. The notice of motion filed 27.07.12 by the respondent in proceedings number 2011/163025 be dismissed.
Catchwords: CRIMINAL LAW - Crown appeal against ruling excluding coincidence evidence - Crown appeal against interlocutory judgment severing counts on indictment - whether ruling eliminated or substantially weakened the prosecution case - Criminal Appeal Act 1912, 2 5F.
EVIDENCE - admissibility - coincidence evidence - test - relevance - significant probative value - Evidence Act 1995, ss 55 and 98.Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Evidence Amendment Act 2007Cases Cited: - Dao v R [2011] NSWCCA 63; 278 ALR 765
- DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262
- House v R [1936] HCA 40; 55 CLR 499
- KRM v R [2001] HCA 11; 206 CLR 221
- Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
- R v Ceissman [2010] NSWCCA 50
- R v Oliver (1984) 57 ALR 543
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
- Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613
- Sutton v R [1984] HCA 5; 152 CLR 528Texts Cited: - ALRC Discussion Paper 69: Review of the Uniform Evidence Act
- ALRC Report 102: Uniform Evidence Law ReportCategory: Principal judgment Parties: Crown (Appellant)
"MR" (Respondent)Representation - Counsel: Counsel:
Ms N. Noman SC (Appellant)
P. Skinner (Respondent)- Solicitors: Solicitors:
Deputy Director of Public Prosecutions (Appellant)
Meridian Legal (Respondent)File Number(s): 2011/163025 Decision Under Appeal - Before: Quirk DCJ - Date of Decision: 05 March 2013 Publication Restriction: NIL, but note Respondent due for trial on 28 October 2013.
JUDGMENT
HOEBEN CJ at CL: I agree with Beech-Jones J and the additional observations of Schmidt J.
SCHMIDT J: I have had the advantage of reading Beech-Jones J's draft judgment and adopt his Honour's explanation of the evidence and the parties' cases below and on appeal.
For my part, I joined in the orders made at the hearing in relation to the evidentiary ruling, because I took the view that her Honour had erred in the conclusions which she reached as to the…
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- AGLC
- R v MR [2013] NSWCCA 236
- Case
- [2013] NSWCCA 236
- Decision Date
CaseChat Overview and Summary
The court examined whether the evidence of coincidence, which was excluded, had significant probative value as required by section 98(1) of the Evidence Act. The court found that the primary judge was incorrect in her assessment that the evidence did not have significant probative value. Given the strong evidence connecting MR to counts 4 and 5, and the relatively weaker evidence connecting him to counts 1, 2, and 3, the coincidence evidence was crucial in bolstering the prosecution's case for the latter counts. The court held that the exclusion of this evidence substantially weakened the prosecution's case on counts 1, 2, and 3. The court also found that the severing of counts on the indictment was an interlocutory order that could be appealed under section 5F(2) of the Criminal Appeal Act, leading to a consideration of whether the interlocutory judgment or order was substantively significant.
The court concluded that the primary judge's rulings on the admissibility of coincidence evidence and the severing of counts on the indictment were erroneous and that these decisions substantially weakened the prosecution's case. Consequently, the appeal was allowed, and the case was remitted to the trial court for further proceedings. The court ordered that the coincidence evidence be admitted and that the counts on the indictment be rejoined for trial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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