R v Raymundo - [2025] NSWCCA 109

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Raymundo [2025] NSWCCA 109
Hearing dates: 11 July 2025
Date of orders: 11 July 2025, 28 July 2025
Decision date: 28 July 2025
Before: Stern JA; McHugh JA; Garling J
Decision:
(1) Appeal allowed.
(2) Set aside the decision of Wass SC DCJ given on 7 July 2025 excluding recognition evidence pursuant to s 137 of the Evidence Act 1995 (NSW).
(3) In lieu thereof, dismiss paragraph 2 of the respondent’s notice of motion filed on 27 June 2025.
(4) Direct the parties to exchange within 7 days written submissions not exceeding 2 pages in length as to whether the respondent should be granted a certificate under s 6(1) of the Suitors’ Fund Act1951 (NSW), with that issue to be determined on the papers.

Catchwords:
CRIMINAL PROCEDURE — Evidence Act 1995 (NSW), s 137 — Where trial judge excluded recognition evidence — Where evidence had high probative value — Whether respondent would have to adduce unfairly prejudicial evidence to challenge recognition evidence — Whether directions to the jury would be sufficient to cure prejudice — Appeal allowed

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5F
Evidence Act 1995 (NSW), s 137, 165
Suitors’ Fund Act 1951 (NSW), s 6

Cases Cited:
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
Muldoon v The Queen [2008] NSWCCA 315; (2008) 192 A Crim R 105
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Bauer (2018) 266 CLR 56; [2018] HCA 40
R v Benecke [1999] NSWCCA 163; (1999) 106 A Crim R 282
R v Cook [2004] NSWCCA 52
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category: Principal judgment
Parties: Rex (Appellant)
Christian Raymundo (Respondent)
Representation:
Counsel:
Cecilia Curtis (Appellant)
Michael Valentin (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Cruz & Partners Lawyers (Respondent)

File Number(s): 2024/204662
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 July 2025

Before:

Wass SC DCJ

File Number(s):

2024/204662

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 7 July 2025, Wass SC DCJ delivered an ex tempore judgment excluding, pursuant to s 137 of the Evidence Act 1995 (NSW), recognition evidence proposed to be given by the complainant at the trial of the respondent on an indictment charging him, together with a co-accused, with a single count of robbery in company. Section 137 provides: “In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

Her Honour accepted that the recognition evidence was strongly probative of the Crown case, but considered that that was outweighed by the danger of unfair prejudice, which could…

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 Raymundo

Details

AGLC: R v Raymundo [2025] NSWCCA 109
Case: [2025] NSWCCA 109
Decision Date: 28 July 2025

CaseChat Overview and Summary

In the case of R v Raymundo, the respondent, who was on trial for various serious offences, sought to adduce recognition evidence from a witness who could identify the respondent. The case was heard in the New South Wales Court of Criminal Appeal. The appellant argued that the trial judge had erred by excluding the recognition evidence, despite its high probative value, and that the exclusion of such evidence would require the respondent to present unfairly prejudicial evidence to challenge it. The respondent contended that appropriate directions to the jury would be sufficient to mitigate any prejudice that might arise from the recognition evidence.

The court was tasked with determining whether the exclusion of the recognition evidence amounted to an error that warranted allowing the appeal. Specifically, the court had to assess whether the exclusion of the evidence would necessitate the respondent to introduce unfairly prejudicial material in response, and whether directions to the jury could adequately address any prejudice arising from the recognition evidence. The court examined the provisions of the Evidence Act 1995 (NSW), particularly section 137, to understand the balancing act required between probative value and the potential for prejudice.

The court concluded that the exclusion of the recognition evidence was indeed an error, as it would compel the respondent to introduce unfairly prejudicial material in response. The court determined that the potential prejudice could not be sufficiently mitigated by directions to the jury. Consequently, the appeal was allowed. The court recognised the importance of ensuring that the probative value of evidence outweighs the potential for prejudice, and in this instance, found that the exclusion of the recognition evidence did not achieve that balance. The court also emphasised the necessity of avoiding situations where a defendant is forced to introduce prejudicial evidence to counter potentially prejudicial identification evidence.

Orders