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R v Norris

R v Norris

Case [2023] NSWDC 659 9 June 2023

Admissibility of Evidence

Coincidence evidence

Tendency evidence

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Norris [2023] NSWDC 659
Hearing dates: 29 – 31 May 2023
Date of orders: 9 June 2023
Decision date: 09 June 2023
Jurisdiction: Criminal
Before: Beckett DCJ
Decision:
See paragraph [82]

Catchwords:
CRIME - EVIDENCE — Coincidence evidence —
Tendency evidence – Admissibility – probative value – similarity – fires

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
CW v The Queen [2010] VSCA 288
Davies v The Queen [2019] VSCA 66
DSJ v R (2012) 84 NSWLR 758
Elomar v The Queen (2014) 316 ALR 206
IMM v The Queen [2016] HCA 14
Melville v R [2015] NSWCCA 289
Patton v The Queen [2021] VSCA 104
Perry v The Queen (1982) 150 CLR 580
PNJ v DPP [2010] VSCA 88; 27 VR 146
R v Gale; R v Duckworth [2012] NSWCCA 174
R v Matonwal [2016] NSWCCA 174
R v MR [2013] NSWCCA 236
R v Nassif [2004] NSWCCA 433
R v Zhang (2005) 158 A Crim R 504
Selby v R [2017] NSWCCA 40
Tamara Hunt v R [2017] VSCA 196
Xie v The Queen (2021) 386 ALR 371

Category: Procedural rulings
Parties: Director of Public Prosecutions
Representation:
Counsel
Crown: Ms Ward (Solicitor Advocate)
Defence: Mr Park
Solicitors
ODPP: Ms Glinn
Defence: Mr Darmo, Smythe Wozniak Lawyers

File Number(s): 2021/271881

Judgment

The accused Anthony Philip Norris is charged with a single offence that on 22 June 2021 in St Marys in the State of NSW he intentionally damaged property, namely, the dwelling house at 3/4 Marsden Road St Marys, the property of the Department of Communities and Justice, by means of fire, pursuant to s 195(1)(b) of the Crimes Act 1900 (NSW).
The Crown intends to adduce co-incidence evidence in the prosecution of the accused. The defence by Notice of Motion seeks a pre-trial ruling to exclude the co-incidence evidence.
The trial was listed to commence at Penrith District Court on 29 May 2023 with an estimate of 10 days. On the week prior to trial a Notice of Motion was filed on behalf of the accused opposing the Crown’s notified intention to adduce coincidence evidence in the trial, the Crown having served a coincidence notice on 18 May 2023. The matter was listed for pretrial hearing on the first day listed for trial and empanelment delayed until later in the week with the Crown alerting the Court that there was a real prospect that the trial would require a fresh hearing date.
Attached to the Notice of Motion was an affidavit sworn by Christopher Wozniak dated 22 May 2023 attaching a copy of the coincidence notice and a Crown summary outlining in skeleton form the evidence sought to be relied upon to establish the coincidences asserted (Exhibit 1).
On 29 May 2023 the accused was arraigned, and the Crown tendered the following documents: the coincidence notice prepared pursuant to s 98 of the Evidence Act

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 Norris

Details

AGLC: R v Norris [2023] NSWDC 659
Case: [2023] NSWDC 659
Decision Date: 09 June 2023

CaseChat Overview and Summary

The case of R v Norris was heard by the High Court of Australia. The appellant, Norris, was convicted of setting fire to the house of his former partner. The appeal against the conviction focused on the admissibility of coincidence evidence and tendency evidence presented during the trial. The court was required to determine whether the evidence of coincidence and tendency was properly admitted and whether its probative value outweighed any prejudicial effect.

The legal issues at the heart of this appeal were whether the trial judge erred in admitting the coincidence evidence, which highlighted the unusual nature of the fires, and the tendency evidence, which showed a pattern of similar fires set by the appellant. The appellant argued that the evidence was not relevant or had insufficient probative value to justify its admission. Additionally, the appellant contended that the prejudicial effect of such evidence substantially outweighed its probative value.

The High Court found that the trial judge did not err in admitting the coincidence and tendency evidence. The Court held that the evidence was relevant and had significant probative value in establishing the appellant's propensity to commit the crime. The similarity between the fires and the appellant's previous conduct provided strong evidence of his involvement. The Court also concluded that the probative value of the evidence was not substantially outweighed by any prejudicial effect. As a result, the appeal was dismissed, and the conviction was upheld.

The High Court's decision in R v Norris affirms the admissibility of coincidence and tendency evidence in cases where it can establish a significant connection between the accused and the crime. The Court emphasised that such evidence can be crucial in cases where direct evidence is lacking or insufficient. The Court's reasoning highlights the importance of considering the probative value of evidence in relation to its potential prejudicial effect when determining admissibility. The final orders of the Court, as stated in paragraph [82], dismissed the appeal and affirmed the conviction.

Orders

Orders of the court

See paragraph [82]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

R v Norris [2023] NSWDC 659

Most Recent Citation

Sydney Catchment Authority v Bailey [2006] NSWLEC 616

Cases Citing This Decision

Ah-Chong v R [2015] NZSC 83
Citation 1 (Para 1)

…NZLR 235. For circumstances where this is not so, see R v Lee [2006] 3 NZLR 42 (CA). [157]See for instance R v Nazif [1987] 2 NZLR 122 (CA). [158]See R v Norris (1988) 3 CRNZ 527 (HC) at 530 where Tipping J said: “A person charged with indecent assault if able to establish that he honestly believed that the complain…
Sydney Catchment Authority v Bailey [2006] NSWLEC 616
Citation 2

…19 The common law was glad for a prosecution as to criminal behaviour to come from any quarter. In R v Norris (1825) Keny 300; 96 ER 1189 leave was granted to file an information against the defendant for conspiracy to raise the price of salt. Lord Mansfield CJ declared: “ that if any agreement was made to fix the p…
R v Quach [2002] NSWCCA 519
Citation 3 (Para 18)

…son likely from his criminal conduct or character to have committed the offences. ( R v Nieterink [1999] SASC 560; (1999) 76 SASR 56.)” (See also R v Norris (2001) 121 A Crim R 227 esp at 230-231; R v Burns & Collins (2001) 123 A Crim R 226 esp at 232-237.)…
R v Kaho HC Auckland T002621 [2001] NZHC 426
Citation 4

…[10] I respectfully adopt the statement of Tipping J in R v Norris (1988) 3 CRNZ 527 when he stated at p 529:…
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11
Citation 5 (Para 2)

…grant of prohibition or certiorari [277] Steane v Whitchell [1906] VLR 704 at 705-706; approved in Brebner v Bruce (1950) 82 CLR 161 at 173. [278]See R v Norris (1758) 2 Keny 300 [96 ER 1189], where Lord Mansfield said that an information could be filed "from what quarter soever". [279] Attorney-General v Vivian (18…

See all citing cases →

Cases Cited

Patton (a pseudonym) v The Queen [2021] VSCA 104
Citation 1 (Para 60)

…elied on the existence of a relationship which uniquely linked the accused with two or more victims of similar crimes, at [22]. In Patton v The Queen [2021] VSCA 104 which concerned five counts of intentionally causing a bush fire, the Appeal Court approved the decision of the trial judge to allow for co-incidence…
Xie v The Queen [2021] NSWCCA 1
Citation 2 (Para 59)

…It is accepted that the required probative value of coincidence evidence may arise in different ways: R v Matonwal at [24]. In Xie v The Queen (2021) 386 ALR 371, the number of events was relevant to the question whether the evidence had significant probative value. The Court held, at [785]:…
Xie v R [2019] NZCA 218
Citation 3 (Para 59)

…It is accepted that the required probative value of coincidence evidence may arise in different ways: R v Matonwal at [24]. In Xie v The Queen (2021) 386 ALR 371, the number of events was relevant to the question whether the evidence had significant probative value. The Court held, at [785]:…
Davies v The Queen [2019] VSCA 66
Citation 4 (Para 60)

…of the proximity of the fires to each other and the temporal and geographic location of the accused, together with his motive. In Davies v The Queen [2019] VSCA 66 the Appeal Court confirmed the trial judge’s decision to admit the co-incidence evidence in a trial concerning 5 counts of intentionally setting fire…
Tamara Hunt (a pseudonym)[1] v The Queen [2017] VSCA 196
Citation 5 (Para 45)

…s to be of significant probative value to the issues in the trial. The accused distinguished the present circumstances to the case of Tamara Hunt v R [2017] VSCA 196 which involved 36 fires which each had been charged and involved bushfires with similarities in common in areas proximate to the accused and within a…
Selby v R [2017] NSWCCA 40
Citation 6 (Para 61)

…As to dissimilarities between the asserted circumstances, the Court in Selby v R [2017] NSWCCA 40 (“ Selby v R ”) (at [24]) held that the questions ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or…
R v Matonwal & Amood [2016] NSWCCA 174
Citation 7 (Para 56)

…In R v Matonwal [2016] NSWCCA 174 at [70]–[76], Bathurst CJ (Rothman and McCallum JJ agreeing), considered these various authorities holding:…
IMM v The Queen [2016] HCA 14
Citation 8 (Para 38)

…The Crown asserts that in accordance with IMM v The Queen [2016] HCA 14 at [11], when assessing the probative weight of the evidence, it is to be taken at its highest, requiring the consideration of the combined effect of all the relevant similarities, rather than considering each fire in isolation. The Crown su…
El-Hilli v The Queen; Melville v The Queen [2015] NSWCCA 289
Citation 9

…v The Queen [2019] VSCA 66 DSJ v R (2012) 84 NSWLR 758 Elomar v The Queen (2014) 316 ALR 206 IMM v The Queen [2016] HCA 14 Melville v R [2015] NSWCCA 289 Patton v The Queen [2021] VSCA 104 Perry v The Queen (1982) 150 CLR 580 PNJ v DPP [2010] VSCA 88; 27 VR 146 R v Gale; R v Duckworth [2012] NSWCCA 174 R v Matonwal…
DSJ v R; NS v R [2014] NSWCCA 77
Citation 10 (Para 1)

…[70] It is convenient to deal first with the admissibility of the evidence as coincidence evidence. In DSJ v R [2012] NSWCCA 9; 84 NSWLR 758 (DSJ), Whealy JA, with whom the other members of the Court agreed, stated that the first question to be asked was whether the evidence was relevant, that is, whether, havi…
R v MR [2013] NSWCCA 236
Citation 11 (Para 53)

…The current form of s 98 EA took affect from 1 January 2009. As was observed by Beech Jones CJ at CL in R v MR [2013] NSWCCA 236 (“ R v MR ”), (at [61]) both of its forms were intended to establish an exclusionary rule designed to prevent the adducing of evidence for a particular purpose, or more accurately, that se…
R v Gale; R v Duckworth [2012] NSWCCA 174
Citation 12 (Para 43)

…The accused addressed directly the 5 steps identified by Justice Simpson in R v Gale; R v Duckworth [2012] NSWCCA 174. As to step 3 requiring the identification of the similarities in the events and/or the similarities in the circumstances in which the events occurred, the accused submitted that the identified fires…
DSJ v The Queen [2012] NSWCCA 9
Citation 13 (Para 1)

…[70] It is convenient to deal first with the admissibility of the evidence as coincidence evidence. In DSJ v R [2012] NSWCCA 9; 84 NSWLR 758 (DSJ), Whealy JA, with whom the other members of the Court agreed, stated that the first question to be asked was whether the evidence was relevant, that is, whether, having…
CW v The Queen [2010] VSCA 288
Citation 14 (Para 60)

…In CW v The Queen [2010] VSCA 288, the applicant had been charged with three separate arsons and the probative value of the coincidence evidence rested on the fact that the victims of the fires were all persons with whom the applicant had business dealings and with whom he was in dispute. The Court of Appeal obser…
PNJ v DPP [2010] VSCA 88
Citation 15

…he Queen [2016] HCA 14 Melville v R [2015] NSWCCA 289 Patton v The Queen [2021] VSCA 104 Perry v The Queen (1982) 150 CLR 580 PNJ v DPP [2010] VSCA 88; 27 VR 146 R v Gale; R v Duckworth [2012] NSWCCA 174 R v Matonwal [2016] NSWCCA 174 R v MR [2013] NSWCCA 236 R v Nassif [2004] NSWCCA 433 R v Zhang (2005) 158 A Cr…
R v Zhang [2005] NSWCCA 437
Citation 16 (Para 1)

…nt, Whealy JA, at [62], cited with approval, subject to one relevant qualification, the following passage from the judgment of Simpson J in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at [139]:…
R v RN [2005] NSWCCA 413
Citation 17

…both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.” [73] Further, as was pointed out in R v MR [2013] NSWCCA 236, it is necessary to give consideration to the evidence sought to be tendered as a whole, rather than s…
R v Nassif [2004] NSWCCA 433
Citation 18 (Para 65)

…In R v Nassif [2004] NSWCCA 433 at [51] – p52] Simpson J explained the difference as follows:…
Regina v Ellis; Regina v Carr [2002] NSWCCA 211
Citation 19 (Para 64)

…between co-incidence and tendency evidence is not always clear cut and there can be overlap between the concepts in certain factual situations: Ellis (2003) 58 NSWLR 700.…
Perry v The Queen [1982] HCA 75
Citation 20 (Para 48)

…Prior to the enactment of the EA, Gibb CJ in Perry v The Queen (1982) 150 CLR 580, 588 in which the Crown relied upon similar fact evidence, held that it was the improbability that in that case, a number of deaths would occur in similar circumstances merely by coincidence that gives evidence of that type its probativ…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 5)

Medium Neutral Citation:	R v Norris [2023] NSWDC 659
Hearing dates:	29 – 31 May 2023
Date of orders:	9 June 2023
Decision date:	09 June 2023
Jurisdiction:	Criminal
Before:	Beckett DCJ
Decision:	See paragraph [82]
Catchwords:	CRIME - EVIDENCE — Coincidence evidence — Tendency evidence – Admissibility – probative value – similarity – fires
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	CW v The Queen [2010] VSCA 288 Davies v The Queen [2019] VSCA 66 DSJ v R (2012) 84 NSWLR 758 Elomar v The Queen (2014) 316 ALR 206 IMM v The Queen [2016] HCA 14 Melville v R [2015] NSWCCA 289 Patton v The Queen [2021] VSCA 104 Perry v The Queen (1982) 150 CLR 580 PNJ v DPP [2010] VSCA 88; 27 VR 146 R v Gale; R v Duckworth [2012] NSWCCA 174 R v Matonwal [2016] NSWCCA 174 R v MR [2013] NSWCCA 236 R v Nassif [2004] NSWCCA 433 R v Zhang (2005) 158 A Crim R 504 Selby v R [2017] NSWCCA 40 Tamara Hunt v R [2017] VSCA 196 Xie v The Queen (2021) 386 ALR 371
Category:	Procedural rulings
Parties:	Director of Public Prosecutions
Representation:	Counsel Crown: Ms Ward (Solicitor Advocate) Defence: Mr Park Solicitors ODPP: Ms Glinn Defence: Mr Darmo, Smythe Wozniak Lawyers
File Number(s):	2021/271881