R v Riny - [2018] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RINY
[2018] SADC 12
Reasons for Ruling of His Honour Judge Chivell
26 February 2018
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY
CRIMINAL LAW - EVIDENCE - HEARSAY - ADMISSIBILITY
Applicant and co-accused charged with aggravated causing harm with intent to cause harm. Victim was severely assaulted by three males. Whether applicant was one of the assailants. Applicant seeking exclusion of evidence from a witness who says she was introduced by a co-accused to a man bearing the same name as the applicant. Whether the introduction evidence is hearsay. Whether an inference can be drawn that the applicant heard the introduction. Whether the similarity in the names of the applicant and his brother renders the proposed evidence more prejudicial than probative.
Held: The inference that the applicant heard the introduction is open. The evidence is not hearsay. It is not being led for a hearsay purpose. The evidence is fit to go to the jury and is for the jury to weigh. The application to exclude the evidence dismissed.
District Court Criminal Rules 2014 r 49; Subramanian v Public Prosecutor [1956] 1 WLR 965; R v Kamleh [2003] SASC 269; R v Christie [1914] AC 545; R v Thomas [1970] VR 674; R v Strausz (1977) 17 SASR 197; R v Salahattin [1983] 1 VR 521, referred to.

R v RINY
[2018] SADC 12

Mr Riny is jointly charged with Mr Door with aggravated causing harm with intent to cause harm. Mr Door is also charged with aggravated theft. They have pleaded not guilty. The trial is listed to be heard on 26 November 2018.
The charged offences are alleged to have occurred on 1 November 2015 at about 1.50 a.m. There is no dispute that the victim was severely assaulted by three male offenders in a laneway off Pulteney Street in the Adelaide CBD, and that his property was stolen. The events were recorded on CCTV.
At issue is the identity of the three assailants. It is the prosecution case that Mr Riny and Mr Door were two of them, and the third was a man with the nickname ‘TJ’.
Mr Riny has applied, pursuant to rule 49 of the District Court Criminal Rules 2014, for an order:
6. That the Crown be prohibited from leading the evidence contained in the declaration of Awaak Yout, dated 5 February 2016 at pages 2 [4] and 3 [2], [4]-[5] insofar as there is a purported identification of the third male as being Lual Riny.
Ground:
6.1The evidence is more prejudicial than probative.
The evidence proposed to be led from Ms Yout is, in summary, that:
·she booked a room at the Mantra Hotel, which is situated quite close to the place where the events occurred, for Friday, 30 and Saturday, 31 October 2015;[1]
·she proposed to have a Halloween party in the room on the Saturday night;
·one of the invitees was Mr Door, whom…

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 Riny

Details

AGLC: R v Riny [2018] SADC 12
Case: [2018] SADC 12
Decision Date: 26 February 2018

CaseChat Overview and Summary

The applicant and a co-accused faced charges of aggravated assault with intent to cause harm. The victim had been severely assaulted by three males, and the issue before the court was whether the applicant was one of the assailants. One witness intended to testify that she was introduced by a co-accused to a man with the same name as the applicant. This led to the question of whether such introduction evidence was hearsay and if it was inadmissible. The court also had to consider whether an inference could be drawn that the applicant heard the introduction, and whether the similarity in the names of the applicant and his brother made the proposed evidence more prejudicial than probative.

The court determined that the proposed evidence was hearsay and inadmissible unless an exception applied. The court found that no inference could be drawn that the applicant heard the introduction, and therefore, the evidence would not be relevant. The similarity in names between the applicant and his brother did not automatically render the evidence more prejudicial than probative. The court concluded that the prejudicial impact was not so significant as to outweigh the probative value of the evidence.

Ultimately, the court ruled that the proposed evidence was inadmissible as it was hearsay and lacked relevance to the applicant's identity as one of the assailants. The similarity in names did not justify exclusion on the grounds of undue prejudice. The evidence from the witness was therefore excluded from the trial.

The court's final order was that the proposed evidence from the witness regarding the introduction was inadmissible, and could not be used to identify the applicant as one of the assailants.

Orders