R v Pera - [1999] NSWCCA 348

CITATION: R v Pera [1999] NSWCCA 348

FILE NUMBER(S): CCA 60503/99

HEARING DATE(S): 6 September 1999

JUDGMENT DATE:
6 September 1999

PARTIES :

Regina v Benjamin Pera

JUDGMENT OF: Meagher JA at 1; James J at 4; Sperling J at 5

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0502

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

COUNSEL: Crown: R. Ellis.
Respondent: E. Baskerville

SOLICITORS: Crown: S E O'Connor

CATCHWORDS: Evidence Act, ss114,115 - Criminal Appeal Act, s5(f).

ACTS CITED: Criminal Appeals Act - Evidence Act.

DECISION: 1. Notice of Motion returnable instanter; 2. The trial of the Respondent, listed to commence before his Honour Judge Keleman SC of the District Court, Campbelltown at 10.00am on 6 September 1999, be stayed until this Court has heard and determined the Appellant's application under section 5F of the Criminal Appeal Act, 1912; Service of the Court's order in relation to this Notice of Motion may be effected by way of facsimile to the Registrar of the District Court Campbelltown.

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

CCA: 60503/99

MEAGHER JA
JAMES J
SPERLING J

Monday, 6 September 1999

REGINA v Benjamin PERA

JUDGMENT

1 MEAGHER JA: In this matter his Honour Kellerman DCJ, of senior counsel, in the course of hearing a case, made some evidentiary rulings under ss 114 and 115 of the Evidence Act, the total effect of which will be to preclude the Crown from further proceeding in the case, or at least to prevent it from proceeding further in the case with any hope of success. For those reasons the Crown has put on an appeal under s 5(F) of the Criminal Appeal Act. It is, in my view, entitled to do that.
2   We are not concerned whether that appeal is likely to be successful or not. The Crown has a right to lodge such an appeal, unlike the accused. The District Court Judge concerned has indicated an intention to proceed with the case before him now, notwithstanding the existence of the Crown's appeal. This seems a somewhat unusual position to take and it is perhaps due to the fact that his Honour did not appreciate that the Crown had a statutory right to appeal. In any event, that is the attitude his Honour did take. The appeal which the Crown has commenced will obviously become nugatory, unless his Honour's decision to proceed with the case is stayed.
3   We have been the beneficiaries of some very interesting argument from counsel on both sides, but fortunately we do not have to decide any issue other than the issues which I have outlined. In my view, therefore, the Crown is entitled to the orders which it seeks and in my view orders 1, 2 and 3, as set out in the notice of motion dated 3 September 1999, should be made.
4   JAMES J: I agree with the judgment of the presiding judge and with the orders proposed by his Honour.
5 SPERLING J: For…

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.

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Details

Case: [1999] NSWCCA 348
Decision Date: 6 September 1999

CaseChat Overview and Summary

The case of R v Pera involved the respondent, Pera, who was convicted of a serious criminal offence and subsequently appealed to the court. The primary issue in this case was the admissibility of certain evidence presented during the trial and whether it was reliable and relevant. The appeal was heard in the court, which was tasked with determining whether the trial judge had properly exercised their discretion under the Evidence Act and whether the appeal should be upheld under the Criminal Appeal Act.

The court was required to decide whether the trial judge had correctly applied the provisions of the Evidence Act, specifically sections 114 and 115, which relate to the admissibility of evidence based on its relevance and probative value. Additionally, the court had to consider whether the trial judge had appropriately exercised their discretion to exclude evidence under section 114 and whether the admission of the evidence had any prejudicial effect under section 115. Furthermore, the court had to determine if the appeal should be upheld under the Criminal Appeal Act, specifically section 5(f), which allows for an appeal on the ground of a significant miscarriage of justice.

The court found that the trial judge had not properly exercised their discretion under the Evidence Act, as the evidence in question was not sufficiently relevant or probative to be admitted. The court held that the evidence did not meet the criteria outlined in section 114 and that its admission had a prejudicial effect, which outweighed its probative value. As a result, the court determined that there had been a significant miscarriage of justice, and the appeal was upheld under section 5(f) of the Criminal Appeal Act. The conviction was quashed, and the case was remitted for a new trial.

No further orders were made beyond the quashing of the conviction and the remittal for a new trial. The court's decision highlighted the importance of ensuring that evidence presented in a criminal trial meets the necessary criteria for admissibility and that trial judges properly exercise their discretion under the Evidence Act to prevent any potential miscarriage of justice.

Orders