R v Steele

Case [2015] NSWDC 100

District Court


New South Wales

Medium Neutral Citation: R v Steele [2015] NSWDC 100
Hearing dates:9 February 2015 - 12 February 2015
Date of orders: 12 February 2015
Decision date: 12 February 2015
Jurisdiction:Criminal
Before: Berman SC DCJ
Decision:

Tendency evidence to be admitted

Catchwords: CRIMINAL LAW – Judgment – Application to admit tendency evidence – Joint concoction - Unconscious contamination - Acceptance of denials of joint concoction by complainants
Legislation Cited: Evidence Act
Cases Cited: BJS v R [2011] NSWCCA 239
BJS v R [2013] NSWCCA 123
BP v R;R v BP [2010] NSWCCA 303
FB v Regina; Regina v FB [2011] NSWCCA2127
Hoch v R [1988] HCA 50; (1988) 165 CLR 292
R v Andrews [2003] NSWCCA 7
R v Colby [1999] NSWCCA 261
R v Ellis [2003] NSWCCA 319
R v JG [2014] NSWCCA 138; BC2014061; 21(9) Crim LN 136
R v Le [2000} NSWCCA 49
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
Texts Cited: ALRC Report 102 page 380, footnote 61
Category:Procedural and other rulings
Parties: The Crown
Anthony James Steele
Representation:

Counsel:
Mr L Carr - Crown
Mr P Marr - Accused

Solicitors:
Director of Public Prosecutions
Legal Aid Commission - Accused
File Number(s):2014/30738
Publication restriction:There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants

Judgment

  1. HIS HONOUR: This judgment concerns the admissibility of some evidence which the Crown wishes to lead at trial. The Crown says it is admissible as tendency evidence. The accused objects, arguing, amongst other matters, that there was a real risk that the evidence was the product of joint concoction, or, as Mr Marr ultimately argued, unconscious contamination.

  2. I will take some time to look at the history regarding the admissibility of tendency evidence.

  3. It took a while for some lawyers and judges to notice that the introduction of the Evidence Act brought about fundamental changes concerning the admissibility of evidence at trials. In some areas of law it has taken almost 20 years to abandon approaches to the admissibility of evidence which were, in truth, killed off once the Evidence Act commenced operation. Over the years repeated attempts have been made to ignore the plain words of the Act in favour of old common law rules.

  4. Perhaps the best example of this concerns the admissibility of tendency evidence and, in particular, the effect of a risk of joint concoction or unconscious contamination on the probative value of such evidence. In 1988 the High Court spoke about this in Hoch v R [1988] HCA 50; (1988) 165 CLR 292 (5 October 1988). That ruling presented a significant impediment to the tender of such evidence, particularly by the prosecution. But then in 1995 the rules changed with the introduction of the Evidence Act. Unfortunately, and wrongly, on many occasions the Hoch rule continued to…

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AGLC
R v Steele [2015] NSWDC 100
Case
[2015] NSWDC 100
Decision Date

CaseChat Overview and Summary

The case of R v Steele was heard in a court where the defendant was charged with criminal offences. The central dispute in the case revolved around the admissibility of certain tendency evidence in relation to the charges against the defendant. The court had to decide whether this evidence could be admitted under the provisions of the Evidence Act. The evidence in question pertained to allegations of a joint criminal enterprise, and the complainants had denied any involvement in such a conspiracy. The court's task was to determine whether the evidence was relevant and whether its probative value outweighed any prejudicial effect it might have.

The legal issues before the court included the scope of the tendency evidence provisions under the Evidence Act, particularly sections 97 and 98, and whether the evidence could be admitted despite the denials of the complainants. The court also had to consider whether the evidence had the potential to cause unconscious contamination of the jury's reasoning process. A critical point of discussion was whether the evidence of a joint criminal enterprise could be admitted even if the complainants denied any involvement, given their status as witnesses.

The court, after thorough examination of the evidence and the applicable legal principles, concluded that the tendency evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. The court found that the evidence could assist the jury in determining the likelihood of the defendant's involvement in the alleged joint criminal enterprise. The court also noted that the complainants' denials did not necessarily preclude the admission of the evidence, as their credibility and the weight to be given to their statements were matters for the jury to consider. The court determined that there was no significant risk of unconscious contamination and that the evidence could be admitted to assist in the resolution of the case. The court's reasoning was grounded in the principles of relevance and probative value, ensuring that the evidence would contribute to a fair determination of the defendant's guilt or innocence.

The court ordered that the tendency evidence be admitted in the proceedings. This decision was made on the basis that the evidence was relevant to the issues in the case, and its probative value outweighed any potential for unfair prejudice. The court's ruling allowed the jury to consider the evidence of a joint criminal enterprise in determining the defendant's culpability.

Orders

Orders of the court

Tendency evidence to be admitted

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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