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R v Ngatikaura

R v Ngatikaura

Case [2006] NSWCCA 161 22 May 2006

Admissibility of Evidence

Tendency Evidence

Appeal

Criminal Law

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Reported Decision:
161 A Crim R 329

New South Wales

Court of Criminal Appeal

CITATION: Regina v Ngatikaura [2006] NSWCCA 161

HEARING DATE(S): 6 February 2006

JUDGMENT DATE:
22 May 2006

JUDGMENT OF: Beazley JA at 1; Simpson J at 53; Rothman J at 74

DECISION: By majority (Beazley JA dissenting); (i) appeal allowed; (ii) the decision to reject the evidence is vacated; the matter is remitted to be determined by the District Court in accordance with these reasons.

CATCHWORDS: CRIMINAL LAW – evidence – prior criminal conduct – whether tendency – evidence of prior drug supply - EVIDENCE – tendency evidence – no operation of general exclusionary provisions where tendency provisions apply - JURISDICTION – s.5F(3A) Criminal Appeals Act (NSW) 1912 – whether decision of trial judge to exclude evidence substantially weakens prosecution’s case – appeal may be made against an interlocutory decision regardless of whether or not a jury has been empanelled

LEGISLATION CITED: Criminal Appeal Act (NSW) 1912, s.5F
Drug Misuse and Trafficking Act (NSW) 1985, s.25(1)
Evidence Act (NSW) 1995, ss. 55, 56, 97, 98, 100, 101, 135, 137, Dictionary

CASES CITED: Harriman v The Queen (1989) 167 CLR 590
Noor Mohamed v The King [1949] AC 182
Papakosmas v The Queen (1999) 196 CLR 297
Pfennig v The Queen (1995) 182 CLR 461
R v BD (1997) 94 A Crim R 131
R v Blick (2000) 111 A Crim R 326
R v Cook [2004] NSWCCA 52
R v Cornwell [2003] NSWSC 657
R v Filipetti (1978) 13 A Crim R 335
R v Fletcher [2005] NSWCCA 338
R v GK (2001) 53 NSWLR 317
R v Harker [2004] NSWCCA 427
R v Milakovic [2004] NSWCCA 199
R v Quach (2002) 137 A Crim R 345
R v Sultana (1992) 74 A Crim R 27
R v Suteski (2002) 56 NSWLR 182
R v WRC (2002) 130 A Crim R 89
Steffan v R (1993) 30 NSWLR 633

PARTIES: Crown (Appellant)
Josephine Ngatikaura (Respondent)

FILE NUMBER(S): CCA 2005/2414

COUNSEL: G Rowling (Crown)
C Smith (Respondent)

SOLICITORS: S Kavanagh (Crown)
Legal Aid Commission (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3123

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 29/11/2005

- 1 -

2005/2414 CCAP

Beazley JA
Simpson J
Rothman J

22 May 2006

REGINA v Josephine NGATIKAURA

Headnote

FACTS
The respondent was charged with one count of “ supply heroin ” contrary to s.25(1) of the Drug Misuse and Trafficking Act (NSW) 1985. The offence charged involved a deemed supply. A police search of the respondent’s home uncovered a quantity (5.74 grams) of heroin along with other drug paraphernalia. The respondent pleaded not guilty. The respondent’s husband, who is being tried separately with the same offence, also occupied the house. The anticipated defence of the respondent is that the drugs were in her husband’s exclusive possession and that their presence within the home was not within her knowledge.

The Crown sought to adduce evidence of two prior offences…

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 Ngatikaura

Details

AGLC: R v Ngatikaura [2006] NSWCCA 161
Case: [2006] NSWCCA 161
Decision Date: 22 May 2006

CaseChat Overview and Summary

In the case of R v Ngatikaura, the appellant stood accused of various drug-related offences, with the prosecution seeking to introduce evidence of the appellant's prior drug supply activities. The dispute centred around the admissibility of this prior criminal conduct under the provisions of the Evidence Act. The case was heard and determined by the New South Wales Court of Criminal Appeal. The court was tasked with reviewing the trial judge's decision to exclude the contested evidence and considering whether this exclusion substantially weakened the prosecution's case.

The primary legal issue before the court was whether the evidence of the appellant's prior drug supply activities was admissible under the tendency evidence provisions of the Evidence Act. The appellant argued that the evidence should be excluded under the general exclusionary provisions, which consider whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. The prosecution contended that the evidence was admissible under the tendency provisions, which do not have the same exclusionary considerations. Additionally, the court had to determine whether an appeal could be made against the interlocutory decision to exclude the evidence, even though no jury had been empanelled.

The court held that the evidence of the appellant's prior drug supply activities was admissible under the tendency evidence provisions, as it was relevant to establishing a propensity to engage in drug-related activities. The court noted that the general exclusionary provisions did not apply in this context. The court further determined that the decision to exclude the evidence could be appealed, regardless of whether a jury had been empanelled, pursuant to section 5F(3A) of the Criminal Appeal Act 1912 (NSW). The court found that the exclusion of the evidence substantially weakened the prosecution's case, allowing for the appeal to proceed.

The New South Wales Court of Criminal Appeal allowed the appeal, quashed the decision of the trial judge to exclude the evidence, and remitted the matter to the Supreme Court for a retrial. The court's decision highlighted the importance of considering the specific provisions governing the admissibility of tendency evidence and the availability of appeals against interlocutory decisions in criminal proceedings.

Orders