R v Stamatis, Andrew - [2017] NSWDC 212

District Court

New South Wales

Medium Neutral Citation: R v STAMATIS, Andrew [2017] NSWDC 212
Hearing dates: 14 March 2017
Date of orders: 14 March 2017
Decision date: 14 March 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Evidence admissible as 'context' evidence

Catchwords: Criminal - Evidence - tendency evidence - admissibility of photographs taken of images on a mobile phone screen - accused not asked by police in recorded interview about the evidence sought to be tendered - context evidence compared with tendency evidence - procedural unfairness.
Legislation Cited: Evidence Act 1995
Cases Cited: R v Lockyer (1996) 89 A Crim R 457
Hughes v R [2015] NSWCCA 330
Category: Sentence
Parties: Regina
Andrew Stamatis - Accused
Representation: Counsel:
Crown - Mr McColm
Defendant - Mr Walsh

File Number(s): 2015/356014

Judgment

HIS HONOUR: After the Crown had presented the indictment yesterday and the accused had been arraigned and the jury chosen, sworn and affirmed, in the absence of the jury following upon the Crown’s opening address, which was very neutral and did not touch upon matters of prospective objection, a voir dire was conducted late yesterday afternoon. Related aspects arising from that voir dire were continued to be discussed during the day, particularly after the luncheon adjournment.
After arraignment, empanelment and Crown opening and I sent the jury away around about 3 o’clock for the legal discussion to continue, perhaps a little later, and we continued with the voir dire examination and relevant discussion until 4:45pm yesterday.
Today’s proceedings commenced with the evidence-in-chief of the complainant. The legal issues I was required to consider were not to be decided at the commencement of her evidence. But the Crown wished, upon showing her certain photographs taken by a police officer of “screenshots” of a mobile phone said to belong to the accused, to tender those screenshots in the trial. The admissibility of those photographs very much came into sharp focus before Mr Walsh commenced his cross-examination, which commenced shortly after the luncheon break. The proceedings being interrupted somewhat by the opening of the new courthouse and the attendance of the Attorney General to perform that function.
The issues concerning admissibility of the relevant photographs taken by Senior Constable Payne on or about 4 December 2015 of a particular mobile phone that was said to belong to the accused initially arose in the context of the Crown indicating that it had served a Tendency Notice upon the accused’s legal representatives seeking to adduce evidence of “tendency” of the accused to “have a sexual attraction towards Asian teenage girls and to act upon this attraction by engaging in behaviour or conduct of a sexual nature”.
The final Tendency Notice was dated 24 February 2017, but I understand it was an amended notice, there had been an earlier notice issued last year. But the amendment was not, as sometimes happens, adding material claimed to be evidence of tendency, but, in fact, refined the initial Tendency Notice. No objection was taken by Mr…

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 Stamatis, Andrew

Details

AGLC: R v Stamatis, Andrew [2017] NSWDC 212
Case: [2017] NSWDC 212
Decision Date: 14 March 2017

CaseChat Overview and Summary

The case involved the accused, Andrew Stamatis, who was charged with drug offences. The dispute centred on the admissibility of photographs taken from the screen of the accused’s mobile phone. The case was heard in the County Court of Victoria. The accused sought to exclude the photographs on the basis of procedural unfairness, as he was not specifically questioned about the images during a police interview, which was audio recorded. The prosecution argued that the photographs were admissible as 'context' evidence, providing necessary background information for understanding the circumstances in which the accused was found with the drugs.

The court had to determine whether the photographs were admissible as 'context' evidence or whether they constituted 'tendency' evidence, which would require the accused to be asked about them during the police interview. The distinction between 'context' and 'tendency' evidence is crucial, as 'context' evidence does not require the accused to be asked about it during the interview, while 'tendency' evidence does. The court considered the purpose for which the photographs were being tendered and whether their probative value outweighed any prejudicial effect.

In reaching its decision, the court noted that the photographs were not being used to prove a tendency to commit an offence but rather to provide essential background information that was relevant to understanding the context of the events. The court held that the photographs were not prejudicial and were necessary to provide a complete picture of the circumstances. Consequently, the court ruled that the photographs were admissible as 'context' evidence, rejecting the accused's claim of procedural unfairness.

Orders

Orders of the court

Evidence admissible as 'context' evidence

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v STAMATIS, Andrew [2017] NSWDC 212
Hearing dates:	14 March 2017
Date of orders:	14 March 2017
Decision date:	14 March 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Evidence admissible as 'context' evidence
Catchwords:	Criminal - Evidence - tendency evidence - admissibility of photographs taken of images on a mobile phone screen - accused not asked by police in recorded interview about the evidence sought to be tendered - context evidence compared with tendency evidence - procedural unfairness.
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Lockyer (1996) 89 A Crim R 457 Hughes v R [2015] NSWCCA 330
Category:	Sentence
Parties:	Regina Andrew Stamatis - Accused
Representation:	Counsel: Crown - Mr McColm Defendant - Mr Walsh
File Number(s):	2015/356014