R v Warren Ross (No 2) - [2013] NSWSC 2042

Supreme Court

New South Wales

Case Title: R v Warren ROSS (No 2)

Medium Neutral Citation: [2013] NSWSC 2042

Hearing Date(s): 25 October 2013

Decision Date: 25 October 2013

Jurisdiction: Common Law - Criminal

Before: Rothman J

Decision:
1. Because the Crown no longer presses the evidence, it is unnecessary to state an attitude to the admissibility of the conversation between Ms X and Ms Deaves.
2. As to the remainder of the application to reject evidence on the basis of impropriety in the manner in which it is said to have been obtained, the application is rejected and the evidence of Ms Deaves is, in that respect, admissible.
3. I make the following rulings on the admissibility of the evidence that is subject to the Tendency Notice and its use (see table at [8])
4. The foregoing is not a reference to all of each of the statements, only to the paragraphs relied on for tendency purposes.
5. Further, the foregoing ruling deals only with the tendency issue and no other ground of objection.
6. Reasons for the foregoing rulings are reserved and will be issued as soon as practicable.

Catchwords: CRIMINAL LAW - admissibility of tendency evidence - preliminary ruling - evidence of past abuse of deceased by accused

Legislation Cited: Evidence Act 1995 (NSW)

Cases Cited: Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
KJR v R [2007] NSWCCA 165; (2007) 173 A Crim R 226
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228

Category: Interlocutory applications

Parties: Regina (Crown)
Warren Ross (Offender)

Representation

- Counsel: Counsel:
E. Balodis (Crown)
S. McNaughton SC (Offender)

- Solicitors: Solicitors:
Office of the Director of Public Prosecutions (Crown)
Mcwilliams Lawyers (Offender)

File Number(s): 2011/310910

Publication Restriction: None

JUDGMENT

HIS HONOUR: On 25 October 2013, the Court issued rulings on the admissibility of certain evidence sought to be tendered and used as tendency evidence. There was also an application that certain evidence of the deceased's mother not be admitted because of the manner in which it was obtained.
The latter application was dismissed and the Court ruled that the evidence of the deceased's mother in a conversation preliminary to statements to police was not inadmissible on the basis of an impropriety in the manner in which it was obtained. No ruling has been made on the admissibility of the evidence otherwise.
The Crown seeks to tender evidence referred to in the Tendency Notice issued by the Crown under s 97 of the Evidence Act 1995 on 17 October 2013. Tendency evidence is also sought to be adduced by the accused and a notice was produced on 25 October 2013, although reference was made to the evidence prior to the production of the notice.
The tendency evidence upon which the accused relies relates to the mother of the deceased and seeks, by statements and/or evidence of prior conduct, to prove a tendency…

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 Warren Ross (No 2)

Details

AGLC: R v Warren Ross (No 2) [2013] NSWSC 2042
Case: [2013] NSWSC 2042
Decision Date: 25 October 2013

CaseChat Overview and Summary

In the case of R v Warren Ross (No 2), the court was required to determine the admissibility of past evidence of abuse of the deceased by the accused. The legal issues the court needed to decide were whether the evidence of past abuse was relevant and whether its probative value substantially outweighed any prejudicial effect it might have on the accused.

The court considered the relevant provisions of the Evidence Act, specifically sections 97 and 101. The court noted that for evidence to be admissible, it must be relevant and its probative value must substantially outweigh any prejudicial effect. The court examined whether the evidence of past abuse was relevant to the issue at hand and whether it met the significant probative value test. The court also considered whether issues of credibility and reliability should be taken into account when assessing the probative value of the evidence. The court found that such issues should not be taken into account unless they were so profound that a fact finder could not rely on the evidence if admitted.

The court concluded that the evidence of past abuse was relevant and its probative value substantially outweighed any prejudicial effect it might have on the accused. The court held that the evidence of past abuse was admissible. The court found that the accused had a history of abuse towards the deceased and that this history was relevant to the issue of whether the accused had a propensity to commit the offence charged.

The final orders of the court were that the evidence of past abuse of the deceased by the accused was admissible in the trial of the accused for the offence charged.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Further to the foregoing condition for admissibility, the provisions of s 101 apply because the evidence is sought to be adduced by the Crown against the accused, and requires that the probative value substantially outweighs its prejudicial effect on the accused. The relevant terms of s 101 are as follows: "s 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." As may be clear from the foregoing, and is otherwise trite, the first hurdle for the admissibility of any evidence under the tendency rule (or any other provision of the Evidence Act) is that the evidence is relevant. During the course of discussion in a number of cases the term "relevant" is used when discussing the hurdle of "significant probative value". This infelicitous expression is understandable, given the obvious relationship, previously identified, between the definitions of "probative value" and "relevant". Nevertheless, to avoid doubt, I reiterate that evidence cannot be considered under s 97 of the Evidence Act unless it is relevant as described in s 55 of the Evidence Act. Once it is appreciated that a proceeding involves an issue as to the state of mind of a particular person or the probability of that person acting in a particular way, material that goes to a history of that state of mind or a history of conduct of like kind would, generally, rationally affect the probability of the occurrence of the state of mind or the existence of the conduct at the relevant time. It may, of course, not prove the state of mind or the conduct. Sometimes, it may prove the opposite. Other times it may affect the probability of the existence of the state of mind or occurrence of the conduct less than significantly. Nevertheless, in the case of evidence that is said, rationally, to be evidence of a tendency, the relevance test is a relatively minor hurdle. A significantly greater hurdle is the exclusion of the material as admissible, unless the material is of a significant probative value. The submissions on behalf of the accused, in these proceedings, in part, relied on inconsistencies, reliability and credibility. The Court of Criminal Appeal in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 (Spigelman CJ, Simpson and Adams JJ) considered whether the assessment of probative value under s 97(1)(b) and s 101(2) should take account of issues of credibility and reliability. The Court there held (see [61]-[65]) that such issues should not be taken into account. Nevertheless, there is a necessity to take issues of that kind into account in some circumstances. There are times when the issues of credibility and reliability are so profound that a fact finder would not be capable of relying upon the evidence, if admitted.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Case Title:	R v Warren ROSS (No 2)
Medium Neutral Citation:	[2013] NSWSC 2042
Hearing Date(s):	25 October 2013
Decision Date:	25 October 2013
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	1. Because the Crown no longer presses the evidence, it is unnecessary to state an attitude to the admissibility of the conversation between Ms X and Ms Deaves. 2. As to the remainder of the application to reject evidence on the basis of impropriety in the manner in which it is said to have been obtained, the application is rejected and the evidence of Ms Deaves is, in that respect, admissible. 3. I make the following rulings on the admissibility of the evidence that is subject to the Tendency Notice and its use (see table at [8]) 4. The foregoing is not a reference to all of each of the statements, only to the paragraphs relied on for tendency purposes. 5. Further, the foregoing ruling deals only with the tendency issue and no other ground of objection. 6. Reasons for the foregoing rulings are reserved and will be issued as soon as practicable.
Catchwords:	CRIMINAL LAW - admissibility of tendency evidence - preliminary ruling - evidence of past abuse of deceased by accused
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 KJR v R [2007] NSWCCA 165; (2007) 173 A Crim R 226 R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
Category:	Interlocutory applications
Parties:	Regina (Crown) Warren Ross (Offender)
Representation
- Counsel:	Counsel: E. Balodis (Crown) S. McNaughton SC (Offender)
- Solicitors:	Solicitors: Office of the Director of Public Prosecutions (Crown) Mcwilliams Lawyers (Offender)
File Number(s):	2011/310910
Publication Restriction:	None