R v NKS

Case [2004] NSWCCA 144 11 May 2004

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CITATION: R v N.K.S. [2004] NSWCCA 144

HEARING DATE(S): 07/05/2004

JUDGMENT DATE:
11 May 2004

JUDGMENT OF: Grove J at 1; Howie J at 20; Newman AJ at 25

DECISION: The orders rejecting the evidence of Miss Anglais relating to the conversations allegedly had on 29 October and 3 December 1985 be vacated.

CATCHWORDS: Criminal Law and Procedure - s 5F Appeal by Crown - rejection of evidence which substantially weakens the Crown case - appropriateness of appeal during the course of a trial by jury - whether evidence should have been rejected under s 137 of Evidence Act.

LEGISLATION CITED: Criminal Appeal Act 1912 - s 5F
Evidence Act 1995 - s 137
Suitors Fund Act 1951
Crimes Legislation Further Amendment Act 2003

CASES CITED: R v Pera [1999] NSWCCA 106
Doney v The Queen (1990) 171 CLR 207
R v Hookham (No. 2) (1993) 32 NSWLR 345
R v Rima [2003] NSWCCA 405

PARTIES :
Regina v N.K.S.

FILE NUMBER(S): CCA 60188/04

COUNSEL: G. Smith - Crown
J. Dailly - Respondent

SOLICITORS: S. Kavanagh - Crown
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LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : Coolahan DCJ

60188/04

GROVE J
HOWIE J
NEWMAN AJ
Tuesday 11 May 2004

REGINA v N. K. S.

Judgment

1 GROVE J: By legislative amendment taking effect from 14 February 2004 s 5F of the Criminal Appeal Act 1912 had added:

“(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.”

2 N.K.S. (the respondent) is standing trial before Coolahan DCJ and a jury at Newcastle District Court upon an indictment charging crimes of a sexual nature committed upon his natural daughter. The offences are alleged to have occurred on a range of dates between 1 September 1980 and 30 October 1985. In short statement there are four counts of indecent assault, two counts of carnal knowledge and one count of sexual intercourse without consent.

3 The trial commenced on 3 May 2004. The Crown case was completed by 5 May save evidence which was proposed to be called from Helen Anglais, a psychologist who was in 1985 employed in the Catholic Education organization of the Diocese of Maitland. Senior Counsel for the respondent had notified objection to this evidence and it was agreed that her evidence should be taken first on voir dire. This was done.

4 On 6 May, his Honour ruled that the evidence desired to be tendered by the Crown was rejected. It suffices for present purposes to adopt this summary from his reasons for judgment:

“The evidence as sought to be led by the Crown is contained in Miss Anglais’ evidence on the voir dire yesterday. So far as 29 October 1985 is concerned, the Crown seeks to lead evidence from Miss Anglais that the accused said to her during the…

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 NKS

Details

AGLC: R v NKS [2004] NSWCCA 144
Case: [2004] NSWCCA 144
Decision Date: 11 May 2004

CaseChat Overview and Summary

The case before the court involved an appeal by the Crown against the rejection of evidence which substantially weakened their case. The dispute originated from the lower court's decision to exclude certain evidence that the Crown argued was crucial to their case against the defendant, identified as NKS. The appeal was brought before the higher court, which had to determine the appropriateness of the appeal during the course of a trial by jury and whether the evidence should have been rejected under section 137 of the Evidence Act.

The legal issues before the court were whether the appeal was validly brought during the trial and whether the evidence in question should have been admitted under section 137 of the Evidence Act. The Crown argued that the lower court had erred in excluding the evidence, which they claimed was pivotal to establishing the defendant's guilt. The defence contended that the evidence was inadmissible under section 137, which pertains to the exclusion of evidence that may prejudice, confuse or waste time, or otherwise have an unfair prejudicial effect on the fairness of the proceedings.

The court found that the appeal was appropriately brought during the trial, as it related to a significant matter that could affect the fairness of the proceedings. The court examined whether the evidence met the criteria for exclusion under section 137 of the Evidence Act and determined that the lower court had correctly excluded the evidence. The court reasoned that the evidence had the potential to cause confusion or prejudice to the defendant, thus aligning with the legislative intent of section 137. Consequently, the court upheld the lower court's decision to exclude the evidence and dismissed the Crown's appeal.

The final orders of the court confirmed the lower court's decision, affirming that the evidence was rightly excluded under section 137 of the Evidence Act. The court's decision was based on the understanding that the evidence had the potential to cause confusion or prejudice to the fairness of the trial. The Crown's appeal was dismissed, and the trial continued without the contested evidence.

Orders