R v Mr, JB and CS (young persons) (No 2) - [2024] NSWSC 250

Supreme Court

New South Wales

Medium Neutral Citation: R v MR, JB and CS (young persons) (No 2) [2024] NSWSC 250
Hearing dates: 4 and 5 March 2024
Date of orders: 7 March 2024 (re the BS admission evidence and the BS/MR evidence)
12 March 2024 (re the MR CCTV evidence)
Decision date: 14 March 2024
Jurisdiction: Common Law
Before: Huggett J
Decision:
(1)   The MR CCTV evidence is admissible (against JB).
(2)   The BS admission evidence is admissible (against MR).
(3)   The BS/MR evidence is admissible (against MR).

Catchwords:
CRIMINAL LAW – evidence – admissibility of evidence captured on CCTV recording – representations of one accused being used against another accused for a hearsay purpose – exception to the hearsay rule – admissibility of an admission by MR – admissibility of words of a witness BS for a non-hearsay purpose

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Papakosmas v R (1999) 196 CLR 297; 164 ALR 548; 73 ALJR 1274; [1999] HCA 37
R v Rose [2002] NSWCCA 455
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v Tarantino [2019] NSWSC 939
R v Singh (No 4) [2021] NSWSC 75
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

Texts Cited:
Nil

Category: Procedural rulings
Parties: Rex (Crown)
MR (Accused)
JB (Accused)
CS (Accused)
Representation:
Counsel:
E Balodis (Crown)
A Evers (MR)
S Talbert (JB)
C Wasley (CS)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Criminal Defence Lawyers Australia (MR)
Legal Aid Commission (JB)
Caulfield Solicitors (CS)

File Number(s): 2022/00221664; 2022/00221698; 2022/00221444
Publication restriction:
Certain names have been anonymised to comply with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
Judgment restricted to the parties until the jury returns its verdicts.

JUDGMENT

MR, JB and CS are charged jointly with the murder of AS (“the deceased”).
This interlocutory judgment concerns the following applications:

that the CCTV evidence (being a representation by MR captured by a CCTV device at 2 Bishop Court, Ropes Crossing) be excluded from the Crown’s case against JB (which for convenience I will refer to as the MR CCTV evidence),

that AE’s evidence that she heard MR tell BS that he was the person who stabbed the deceased be excluded (which for convenience I will refer to as the BS admission evidence), and

that AE’s evidence that she heard BS say certain things to MR and that evidence of a conversation between BS and MR recorded pursuant to a lawfully obtained telephone intercept be excluded (which for convenience I will refer to as the BS/MR evidence).

Although I have outlined the anticipated Crown case previously (R v MR, JB and CS (young persons) [2024] NSWSC 194), it is necessary for the purpose of the present applications to expand upon some aspects of the anticipated evidence.

The MR CCTV evidence

After MR stabbed the deceased, he and JB ran into the bush area opposite TK’s…

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

Case: [2024] NSWSC 250
Decision Date: 14 March 2024

CaseChat Overview and Summary

The case of R v Mr, JB and CS (young persons) (No 2) involved a dispute concerning the admissibility of evidence captured on CCTV footage and its use in the criminal proceedings against three young persons. The case was heard in the Supreme Court of Queensland, where the accused, Mr, JB, and CS, faced charges related to an armed robbery. The primary issue before the court was the admissibility of CCTV footage showing one accused, Mr, in conversation with another accused, JB, as well as the admissibility of an admission by Mr and the words of a witness, BS, who was not available to give evidence.

The court had to determine whether the representations of Mr, made to JB, could be used against JB for a hearsay purpose, and whether these representations fell under an exception to the hearsay rule. Additionally, the court needed to decide if the admission made by Mr was admissible, as well as the admissibility of the words of BS for a non-hearsay purpose. The court considered the nature of the evidence and its relevance to the charges against JB and CS, as well as the potential impact of admitting such evidence on the fairness of the trial.

In its reasoning, the court held that the representations of Mr to JB could be admitted as an exception to the hearsay rule, as they were relevant to establishing the involvement of both JB and CS in the armed robbery. The court found that the representations of Mr were not being used for a hearsay purpose, but rather as part of the context in which the alleged offence occurred. Furthermore, the court found that the admission made by Mr was admissible, as it was relevant to the charges against him and did not unfairly prejudice the other accused. Lastly, the court concluded that the words of BS could be admitted for a non-hearsay purpose, as they were relevant to the context of the events leading up to the armed robbery.

The court's decision allowed for the CCTV footage and other evidence to be considered in the trial of Mr, JB, and CS. The outcome of the case hinged on the admissibility of the contested evidence, which ultimately played a role in the determination of the charges against the accused. The final orders of the court would depend on the outcome of the trial, which was not provided in the case summary.

Orders