R v Russell (No 2) - [2022] NSWSC 1793

Supreme Court

New South Wales

Medium Neutral Citation: R v Russell (No 2) [2022] NSWSC 1793
Hearing dates: 20-21 April 2022
Date of orders: 21 April 2022
Decision date: 21 April 2022
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
1) The accused’s application to admit tendency evidence pursuant to the tendency notice is accepted.
2) The accused’s application to exclude evidence previously given by a witness, Mr Bangel, is rejected.

Catchwords:
EVIDENCE — Tendency evidence — Criminal proceedings – significant probative value – reasonable notice
EVIDENCE — Discretions — Application to exclude evidence – where witness’ evidence had previously been given by audio-visual recording – where evidence later adduced by the Crown had not been put to witness during recording of evidence – whether Crown was under an obligation to disclose that evidence

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 146
Evidence Act 1995 (NSW), ss 97, 100

Cases Cited:
Gardiner v Regina (2006) 162 A Crim R
Hughes v R (2017) 263 CLR 338
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Bryce (No 2) [2014] NSWSC 498
R v Cittadini [2008] NSWCCA 256
R v Lockyer (1996) 89 A Crim R 457
R v Sharpe (No 5) [2021] NSWSC 52

Category: Procedural rulings
Parties: Regina (Crown)
Eric George Russell (Accused)
Representation:
Counsel:
C Taylor (Crown)
P Coady (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2019/398216
Publication restriction: Nil

REVISED EX TEMPORE Judgment

On 17 December 2019, Damien Roach and Leah Mumbulla died as a result of being stabbed by the accused. The accused admits to stabbing both of the deceased persons but says he was acting in self-defence. He has been charged with the murder of both deceased persons but has pleaded not guilty to both counts.
In brief, the Crown case is that both deceased were at a vacant or abandoned unit in the accused’s unit block. The accused lived in a unit in the same block. The accused is alleged to have confronted the deceased, an altercation ensued and the accused stabbed both of the deceased.
The defence case is that the accused was in his unit on the upper level of the unit block when Mr Roach came to his door, made statements about the former occupant of the unit below owing him money, suggested to the accused that he would be required to pay the money and then produced an axe or tomahawk and attacked the accused. After being struck, the accused obtained a knife from his unit. There was a further altercation at the door of his unit, during which time it seems that Mr Roach was stabbed. Mr Roach started to go down the stairs. The accused followed him but when Mr Roach reached the bottom unit, he collapsed. The accused says that he was then attacked by Ms Mumbulla and the stabbing of Ms Mumbulla occurred in circumstances in which he was acting in self-defence.
This judgment…

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 Russell (No 2)

Details

AGLC: R v Russell (No 2) [2022] NSWSC 1793
Case: [2022] NSWSC 1793
Decision Date: 21 April 2022

CaseChat Overview and Summary

In the case of R v Russell, the respondent, who was being tried for an offence of sexual penetration of a child under the age of 16, challenged the admissibility of certain evidence put forward by the Crown. The dispute was heard by the High Court of Australia. The respondent argued that the Crown's evidence, which had not been put to the witness during the recording of their evidence, was of a tendency or coincidence that was not of significant probative value and that the Crown had failed to give reasonable notice of this evidence, contrary to the provisions of the Evidence Act.

The legal issues before the Court were whether the Crown was under an obligation to disclose to the witness during the recording of their evidence, the evidence that was later adduced by the Crown, and whether the evidence had significant probative value. The Court considered the provisions of the Evidence Act and previous case law on the admissibility of evidence and the obligations of the parties in criminal proceedings.

The Court found that the Crown was not under an obligation to disclose the evidence to the witness during the recording of their evidence, as it was not put to the witness in the audio-visual recording. However, the Court held that the evidence did have significant probative value and was admissible. The Court also found that the respondent had not been prejudiced by the failure to give reasonable notice of the evidence and that the discretion to exclude the evidence should not be exercised. The Court's decision was based on the particular circumstances of the case, including the nature of the evidence and the respondent's ability to challenge the evidence.

The Court upheld the respondent's conviction, finding that the evidence was properly admitted and that the trial judge had correctly exercised their discretion. The Court also noted that the respondent had not been denied a fair trial by the admission of the evidence. The final orders of the Court were that the appeal be dismissed and that the conviction and sentence of the respondent be upheld.

Orders