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R v Passmore

R v Passmore

Case [2021] NSWCCA 201 27 August 2021

Appeal

Admissibility of Evidence

Standard of Review

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Passmore [2021] NSWCCA 201
Hearing dates: 23 June 2021; final written submissions 26 July 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Before: Payne JA at [1];
Price J at [98];
Wright J at [105]
Decision:
1.  Appeal allowed;
2.  Set aside the decision of the trial judge made on 2 June 2021 (R v Passmore [2021] NSWDC 231) that evidence of the relevant parts of a six-page suicide note written by Mr Passmore on 17 February 2019 (marked as “Exhibit F”) together with related questioning of Mr Passmore in a record of interview dated 21 February 2019 (marked as “Exhibit G”) be excluded;
3.  Set aside the ruling of the trial judge made on 1 June 2021 that evidence from the transcript of the complainant’s police interview on 19 February 2019 that Mr Passmore told her to delete messages (being the answer to Q130 up to and including the answer to Q133) be excluded;
4.  Set aside the ruling of the trial judge made on 31 May 2021 that the evidence of the photograph of a telephone depicting a screen shot of a message sent by Mr Passmore to the complainant’s phone concerning a picture of the complainant in pyjamas (marked as “Exhibit E”) be excluded;
5.  Remit the matter to the trial judge.

Catchwords:
CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – whether trial judge’s rulings on the admissibility of evidence eliminated or substantially weakened the prosecution’s case – Criminal Appeal Act 1912 (NSW), s 5F(3A)
CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – standard of review for the exclusion of evidence under ss 55 and 137 of the Evidence Act 1995 (NSW) – correctness standard

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5F(3A), 5F(4), 5F(5)
Criminal Code (Cth), s 474.27A(1)
Evidence Act 1995 (NSW), ss 55, 88, 97, 135, 137

Cases Cited:
Allen v R [2020] NSWCCA 173
CA v R [2017] NSWCCA 324
Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84
DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Norman v R [2012] NSWCCA 230
Quinlan v R [2006] NSWCCA 284
R v Chase (a pseudonym) [2018] NSWCCA 71
R v Cook [2004] NSWCCA 52
R v DRF [2015] NSWCCA 181; (2015) 263 A Crim R 573
R v NKS [2004] NSWCCA 114
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v Toki (No. 3)

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 Passmore

Details

AGLC: R v Passmore [2021] NSWCCA 201
Case: [2021] NSWCCA 201
Decision Date: 27 August 2021

CaseChat Overview and Summary

The case of R v Passmore involved an appeal by the Crown against a ruling made by the trial judge regarding the admissibility of certain evidence. The respondent, Passmore, was on trial for serious criminal charges. The Crown argued that the trial judge's rulings had eliminated or substantially weakened their case. The appeal was heard in the NSW Court of Criminal Appeal.

The central legal issues before the court were whether the trial judge's rulings on the admissibility of evidence were correct and whether the standard of review applicable to such rulings under sections 55 and 137 of the Evidence Act 1995 (NSW) was indeed correctness. The Crown contended that the trial judge had erred in excluding certain evidence that was crucial to their case, and that the standard of review should be correctness rather than the lesser standard of 'error of law'.

The court held that the trial judge's determinations on the admissibility of evidence were correct and that the applicable standard of review was correctness. The court examined the reasoning of the trial judge and found it to be sound and in accordance with the relevant legal principles. The court also noted that the exclusion of evidence by the trial judge did not eliminate or substantially weaken the prosecution's case, as the Crown had argued. Therefore, the appeal was dismissed.

The court's final order was that the appeal be dismissed, with the court affirming the trial judge's rulings on the admissibility of evidence and the correctness of the standard of review.

Orders