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R v Mundine

R v Mundine

Case [2008] NSWCCA 55 18 March 2008

Admissibility of Evidence

Abuse of Process

Causation

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: R v Keenan MUNDINE [2008] NSWCCA 55

HEARING DATE(S): 15 February 2008

JUDGMENT DATE:
18 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Simpson J at 3

DECISION: Appeals allowed.
Judgments of Solomon DCJ of 15 November 2007 and 19 November 2007 set aside.

CATCHWORDS: CRIMINAL LAW – Crown appeal against excluding evidence – exclusion such as to eliminate or substantially weaken Crown case – identification evidence – whether risk of unfair prejudice outweighed probative value – credibility and reliability not relevant to determination of probative value – evidence to be considered on the assumption that it is accepted by the jury – weight of the evidence may be taken into account when assessing unfair prejudice

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Adam v The Queen [2001] HCA 57; 207 CLR 96
Alexander v The Queen [1981] HCA 17; 145 CLR 395
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Cook [2004] NSWCCA 52
R v Rahme [2004] NSWCCA 233
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228

PARTIES: Regina (Applicant)
Keenan Mundine (Respondent)

FILE NUMBER(S): CCA 2007/5329

COUNSEL: L Lamprati SC (Applicant)
H White (Respondent)

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Applicant)
Heenan & Company (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0658
06/11/0659
06/11/0786

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 15 November 2007
19 November 2007

2007/5329

McCLELLAN CJ at CL
GROVE J
SIMPSON J
18 March 2008

R v Keenan MUNDINE

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 GROVE J: I agree with Simpson J.

3 SIMPSON J: Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 the Director of Public Prosecutions appeals against two evidentiary rulings made by Solomon DCJ on, respectively, 15 and 19 November 2007. Section 5F(3A) permits an appeal against such a ruling only if the ruling eliminates or substantially weakens the prosecution’s case. There is no dispute in the present case that such was the effect of the two rulings. The jurisdictional test is thus met.

4 Each ruling concerned identification evidence.

5 The respondent is charged with an offence against s 112 of the Crimes Act 1900, allegedly committed on 4 November 2005. The specific offence charged in the indictment is that the respondent, having been in the dwelling house of two named women, committed a serious indictable offence therein, and broke out of the premises, in a circumstance of aggravation. The “serious indictable offence” is stealing; the circumstance of aggravation is the malicious infliction of actual bodily harm on each of the two women occupants of the dwelling house.

6 Put shortly, the allegation is that, during the early hours of 4 November 2005, a male…

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 Mundine

Details

AGLC: R v Mundine [2008] NSWCCA 55
Case: [2008] NSWCCA 55
Decision Date: 18 March 2008

CaseChat Overview and Summary

The appeal before the court involved the Crown seeking to overturn a decision to exclude evidence from a criminal trial. The case originated from a trial where the accused, Mundine, faced charges that were potentially eliminated or substantially weakened by the exclusion of certain evidence. The court was tasked with determining whether the exclusion of identification evidence was justified under the criteria set out in the relevant legislation. Specifically, the court had to consider whether the risk of unfair prejudice to the accused outweighed the probative value of the evidence in question.

The legal issue central to this appeal was the interpretation and application of the statutory provision that allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice to a party. The court had to consider whether the trial judge correctly assessed the probative value of the identification evidence and whether this value was indeed outweighed by the risk of unfair prejudice. The court was also required to clarify the role of credibility and reliability in determining the probative value of evidence, noting that these factors are not relevant when assessing the probative value itself.

The court found that the trial judge had erred in his assessment of the probative value of the identification evidence. The court held that the evidence should be considered on the assumption that it would be accepted by the jury, and that while the weight of the evidence may be taken into account in assessing unfair prejudice, the credibility and reliability of the evidence are not relevant to this determination. The court concluded that the exclusion of the evidence was improper as it substantially weakened the Crown's case. Consequently, the appeal was allowed, and the matter was remitted to the trial court for a new trial.

Orders