1 SULLY J: The Court orders in this matter that in any report of this judgment and in any report of the proceedings in this Court, the respondent, the complainant and the complainant’s mother, are to be referred to only by the initials used ,respectively, to describe them in this judgment.
2 Before the Court is a Crown appeal, brought pursuant to section 5F(3)A of the Criminal Appeal Act 1912. The appeal is brought against a ruling upon an evidentiary issue and a trial current in the District Court and over which Judge Coolahan is presiding.
3 Mr. N, the respondent to the appeal, is to stand trial upon an indictment containing twelve counts. Each count charges against the respondent a serious sexual offence against a complainant, who is the respondent’s stepdaughter. The Crown proposes to lead, as part of its case at trial, evidence from the complainant’s mother. The Crown puts that evidence forward as coincidence evidence in the sense defined by s 98 of the Evidence Act 1995.
4 Before a jury had been empanelled, Judge Coolahan was told about this proposed Crown evidence. Counsel for the respondent informed his Honour that objection was taken to the admission of the evidence, the stated basis of the objecting being a real prospect of concoction between the complainant and her mother. A hearing on the voir dire was there upon conducted. Comparatively brief evidence was given by the complainant and by her mother and various statements were tendered. At the conclusion of the evidence and before the commencement of submissions, the Crown Prosecutor said to Judge Coolahan :-
“Your Honour in the hope of saving some time, as I understand it from speaking to my learned friend, the main thrust of the objection is not so much that the matter or the evidence doesn’t fulfil the criteria under 98(2), and 98(1)(b), more in context of the 101(2) situation your Honour. If I’m wrong on that, I don’t think there’s a dispute that it has within…
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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AGLC
R v RN [2005] NSWCCA 413
Case
[2005] NSWCCA 413
Decision Date
CaseChat Overview and Summary
In Regina v R.N., the Court of Criminal Appeal was asked to review a decision by Judge Coolahan DCJ, who presided over a trial in the District Court. The respondent, R.N., faced twelve counts of serious sexual offences against his stepdaughter. The Crown intended to present evidence from the complainant's mother as coincidence evidence under section 98 of the Evidence Act 1995. The respondent objected, suggesting a real prospect of concoction between the complainant and her mother. After a voir dire hearing, Judge Coolahan excluded the evidence, finding a reasonable possibility of concoction.
The legal issues before the Court of Criminal Appeal centred on whether Judge Coolahan properly exercised his discretion under section 101(2) of the Evidence Act 1995 when he excluded the complainant's mother's evidence. The court needed to determine if the judge correctly balanced the probative value of the evidence against any prejudicial effect it might have on the respondent. The Crown argued that the exclusion was unwarranted as the evidence had significant probative value and any prejudicial effect was not substantial enough to justify exclusion.
The Court of Criminal Appeal found that Judge Coolahan's reasoning was insufficient. The court held that the judge failed to adequately assess and balance the probative value against the prejudicial effect as required by section 101(2). The evidence was found to be highly probative, but the judge's reasoning for finding a prejudicial effect was flawed. The discrepancies between the complainant and her mother's statements did not necessarily indicate a reasonable possibility of concoction and could have been due to simple mistakes. The Court concluded that the exclusion of the evidence was not justified under the statute.
The Court allowed the Crown's appeal and set aside the ruling that excluded the complainant's mother's evidence, ordering the evidence be admitted at trial.