R v Mr, JB and CS (young persons) (No 3) - [2024] NSWSC 259

Supreme Court

New South Wales

Medium Neutral Citation: R v MR, JB and CS (young persons) (No 3) [2024] NSWSC 259
Hearing dates: 11 and 14 March 2024
Date of orders: 14 March 2024
Decision date: 15 March 2024
Jurisdiction: Common Law
Before: Huggett J
Decision:
(1) The notice requirements for evidence to be adduced by MR pursuant to s 97 of the Evidence Act 1995 (NSW) are dispensed with.
(2)    Event 73856475 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence).
(3)    Event 73811236 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence).
(4)    Event 446153592 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence).
(5)    Event 79147746 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence).
(6)    Event 80796544 is not admissible tendency evidence (subject to any other objection as to the precise details of the evidence).
(7)    Event 1111655090 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence).
(8)    Event 87547848 is admissible tendency evidence (subject to any other objection as to the precise details of the evidence).

Catchwords:
EVIDENCE – tendency evidence – MR charged with murder – MR raising self-defence – MR seeks to adduce evidence of previous conduct by the deceased as tendency evidence – objection by the Crown – whether evidence has significant probative value

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Reeves (a pseudonym) v R (2013) 41 VR 275; [2013] VSCA 311

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”).
MR does not dispute that he stabbed the deceased thereby causing his death but contends when he did that act, he was acting in self-defence. His case as foreshadowed by his counsel Mr Evers in his opening address, is to the following effect:

When the deceased came out the front of TK’s house, so did his friend BR. The deceased was looking for trouble and in a challenging and aggressive tone asked MR, “Where are you going?” The deceased gave the impression he was looking to start a fight and he did that by telling MR that MR's girlfriend AE had tried to touch his dick. It is not suggested that that was a…

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 259
Decision Date: 15 March 2024

CaseChat Overview and Summary

The case before the court involved MR, JB and CS, who were young persons charged with various offences. MR was charged with murder and raised the defence of self-defence. The court was required to determine whether MR could adduce evidence of the deceased's previous conduct as tendency evidence to support the defence of self-defence. The Crown objected to the admissibility of this evidence, arguing that it did not have significant probative value. The court had to consider the legal principles surrounding the admissibility of tendency evidence and whether the evidence in question met the criteria for admissibility.

The court considered the legal issues surrounding the admissibility of tendency evidence in criminal trials. Tendency evidence is admissible if it has significant probative value and is relevant to an issue in the case. The court also considered the potential prejudicial effect of the evidence on the jury and whether it could be excluded under section 137 of the Evidence Act. The court had to balance the probative value of the evidence against its potential to unfairly prejudice the jury against the accused.

The court found that the evidence of the deceased's previous conduct did not have significant probative value in relation to the issue of self-defence. The court held that the evidence was unlikely to assist the jury in determining whether MR acted in self-defence and was more likely to unfairly prejudice the jury against MR. The court also considered the potential for the evidence to confuse the issues and mislead the jury. The court concluded that the evidence did not meet the criteria for admissibility under the Evidence Act and was excluded.

The court made an order excluding the evidence of the deceased's previous conduct as tendency evidence. The court held that the evidence did not have significant probative value and was more likely to unfairly prejudice the jury against MR. The court also noted that the evidence was unlikely to assist the jury in determining the issue of self-defence and could confuse the issues and mislead the jury. The court's decision was based on a careful consideration of the legal principles surrounding the admissibility of tendency evidence and the potential prejudicial effect of the evidence on the jury.

Orders