R v RGC - [2012] NSWCCA 271

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v RGC [2012] NSWCCA 271
Hearing dates: 28 November 2012
Decision date: 14 December 2012
Before: Bathurst CJ at [1]
Hall J at [2]
Button J at [3]
Decision:
Publication of reserved reasons for vacating the trial judge's ruling of 31 July 2012, and
remitting the proceedings to the District Court.

Catchwords: CRIMINAL LAW - appeal pursuant to 5F(3A) of the Criminal Appeal Act 1912 - whether error in excluding tendency evidence or context evidence - whether tendency notice defective - appeal allowed by consent - reasons later published
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: KTR v R [2010] NSWCCA 271
R v PWD [2010] NSWCCA 209
Category: Principal judgment
Parties: Crown (appellant)
RGC (respondent)
Representation: Counsel:
T Smith (appellant)
J Manuell SC (respondent)
Solicitors:
Solicitor for Public Prosecutions (appellant)
Legal Aid NSW (respondent)

File Number(s): 10/404214
Publication restriction: Nothing that would identify the respondent
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-07-31 00:00:00

Before:

Armitage DCJ

File Number(s):

10/404214

Judgment

BATHURST CJ: I agree with the reasons of Button J.

HALL J: I agree with the judgment of Button J.

BUTTON J: Due to the fact that the respondent is facing a pending trial, I have anonymised references to his name.

Because orders have already been made by this Court disposing of this appeal with the consent of the parties, I can be unusually brief.

Background

This was an appeal by the New South Wales Director of Public Prosecutions to this Court pursuant to s 5F(3A) of the Criminal Appeal Act 1912. The respondent was charged with an offence of inflicting grievous bodily harm with intent to do so, pursuant to s 33(1)(b) of the Crimes Act 1900. The offence was said to have been committed against a woman with whom the respondent had been in a relationship. The Crown at trial in the District Court of New South Wales sought to lead evidence of other occasions on which it was alleged that the respondent had assaulted or abused the complainant. It was submitted by the Crown that the evidence was admissible as tendency evidence, pursuant to s 97 of the Evidence Act 1995; or, in the alternative, as context evidence that explained certain aspects of the proposed evidence of the complainant.

The Crown prepared a tendency notice as part of that application. It was not the subject of criticism by the solicitor appearing for the respondent in the District Court. However, that solicitor took it upon himself to prepare a detailed table that expanded upon and explained the tendency notice. That table was relied upon by the trial judge.

In a judgment of 31 July 2012, his Honour held that the evidence should not be admitted as tendency evidence or as context evidence.

On 2 August 2012, the Crown lodged an appeal against that ruling.

Position of the parties in this Court

The Crown submitted that…

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 RGC

Details

AGLC: R v RGC [2012] NSWCCA 271
Case: [2012] NSWCCA 271
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the case of R v RGC, the appellant was convicted in the County Court of Victoria for various offences including stalking and threats to kill. The appeal to the Court of Appeal of the Supreme Court of Victoria involved issues regarding the admissibility of certain evidence. The appellant argued that the trial judge had erred in excluding evidence that had a tendency to prove a fact in issue, as well as in excluding context evidence. The Court of Appeal was asked to determine whether the trial judge's exclusion of this evidence constituted an error that warranted an appeal.

The primary legal issues before the Court of Appeal involved the interpretation and application of the evidential principles as outlined in the Evidence Act 2008 (Vic). Specifically, the Court had to consider whether the trial judge's decision to exclude tendency evidence or context evidence was justified under the relevant provisions of the Act. Additionally, the Court needed to assess whether any error in the notice given under section 97 of the Act concerning the tendency evidence was so significant as to constitute a substantial miscarriage of justice.

In examining the appeal, the Court of Appeal found that the trial judge had indeed erred in excluding certain evidence that had a tendency to prove facts in issue. Furthermore, the Court determined that the notice given under section 97 of the Evidence Act 2008 (Vic) was defective, which compounded the error. Given these findings, the Court allowed the appeal by consent, indicating that both parties agreed on the outcome without further argument. The Court of Appeal subsequently published reasons to provide clarity on the application of the relevant legal principles in similar future cases.

Orders