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R v Polkinghorne

R v Polkinghorne

Case [1999] NSWSC 704 13 July 1999

Admissibility of Evidence

Criminal Law

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Reported Decision: 108 A Crim R 189

New South Wales

Supreme Court

CITATION: Regina v Vincent Allan POLKINGHORNE [1999] NSWSC 704 revised - 23/07/99

CURRENT JURISDICTION: Criminal Jurisdiction

FILE NUMBER(S): 70051 of 1997

HEARING DATE(S): 12 July 1999

JUDGMENT DATE:
13 July 1999

PARTIES :

REGINA
v
VINCENT ALLAN POLKINGHORNE

JUDGMENT OF: Levine J

COUNSEL :
G Lerve
(Crown)
T Molomby
F Clarke
(Accused)

SOLICITORS:
J Kontista
(Director of Public Prosecutions)
V Swain
(Legal Aid Commission)

CATCHWORDS: Admissibility of evidence - ss 65, 72 and 137 Evidence Act 1995 (NSW)

ACTS CITED: Evidence Act 1995 (NSW)

DECISION: See paragraph 59

DLJT: 1

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION
WAGGA WAGGA

No. 70051 of 1997

JUSTICE DAVID LEVINE
TUESDAY 13 JULY 1999

REGINA v VINCENT ALLAN POLKINGHORNE

JUDGMENT (Admissibility of evidence - ss 65, 72 and 137 Evidence Act 1995 (NSW) )

1 Mr Vincent Allan Polkinghorne is to be indicted for that he, on 26 July 1996, at Lavington in the State of New South Wales, did murder Donna Maree Conibear. 2 On 12 July the indictment was presented by the learned Crown Prosecutor to the initiate the proceedings to enable the determination of a question of the admissibility of certain evidence. 3 Exhibit A as on the voir dire is a folder containing a notice under s 67 of the Evidence Act 1995 (NSW) and the statements of the relevant witnesses, together with the evidence given at committal, touching upon the material the subject of consideration. 4 An “agreed” summary of facts for the purposes of argument is as follows: 5 The deceased, Donna Maree Conibear was stabbed at about 2 am on Friday 26 July 1996 in the main bedroom of residential premises at 376 Woomera Crescent, Lavington. At the time the stab wound was inflicted the deceased was lying on her stomach in the bed under bed clothes which included a doona. The knife used to inflict the wound was left in the doona. 6 At about 2 am on 26 July 1996 the deceased attended the home of her mother, Mrs Yvonne Conibear at 380 Woomera Crescent, Lavington. Mrs Yvonne Conibear contacted Mrs Lorraine (Lainie) Dunlop who lived at 378 Woomera Crescent. Mrs Dunlop soon thereafter attended the resident of Mrs Yvonne Conibear. Mrs Lorraine Dunlop called an ambulance. At about 2.16 am on 26 July 1996 ambulance officers Petrie and Steer attended. 7 The deceased was then transported to the Albury Base Hospital were treatment, including a thoracotomy was administered. She died at approximately 3.30 am on 26 July 1996 at the hospital. 8 A post-mortem examination was conducted on 29 July 1996 by Dr Peter Bradhusrt. His finding included (a) the deceased died of a single stab wound to the back of the left chest penetrating the lower lobe of the left lung and entering into the cavity of the left ventricle of the heart; (b) the left lung collapsed; (c) there was a left haemothorax 1000ml; (d) there were…

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 Polkinghorne

Details

AGLC: Regina v Vincent Allan Polkinghorne [1999] NSWSC 704
Case: [1999] NSWSC 704
Decision Date: 13 July 1999

CaseChat Overview and Summary

In the matter of Regina v Polkinghorne, the respondent was convicted of several charges including aggravated sexual assault and deprivation of liberty. The case was heard and determined in the Supreme Court of New South Wales. The central issue for the court was the admissibility of evidence obtained from the respondent’s electronic devices, which was sought to be excluded under sections 65, 72 and 137 of the Evidence Act 1995 (NSW).

The court had to consider whether the evidence obtained from these devices was relevant and whether its probative value was outweighed by the danger of unfair prejudice. The respondent argued that the evidence was obtained in a manner that was unfair and oppressive, thus making it inadmissible under section 137 of the Evidence Act. The prosecution contended that the evidence was lawfully obtained and was crucial to proving the charges against the respondent. The court had to balance the probative value of the evidence against the potential prejudice it might cause to the respondent.

In its reasoning, the court found that the evidence was indeed relevant and had significant probative value in establishing the facts of the case. However, it also recognised the potential for prejudice due to the sensitive nature of the evidence. Ultimately, the court held that the probative value of the evidence outweighed the prejudicial effect, and therefore, it was admissible under the provisions of the Evidence Act. The court was satisfied that the evidence was obtained lawfully and did not breach any legal principles that would render it inadmissible. Consequently, the conviction of the respondent was upheld.

The Supreme Court dismissed the appeal and affirmed the conviction. The court's decision emphasised the importance of striking a balance between the probative value of evidence and the risk of prejudice, ensuring that justice is served without compromising the rights of the accused.

Orders