R v Warren Ross (No 3) - [2013] NSWSC 2043

Supreme Court

New South Wales

Medium Neutral Citation: R v Warren ROSS (No 3) [2013] NSWSC 2043
Hearing dates: 21 November 2013
Decision date: 21 November 2013
Jurisdiction: Common Law
Before: Rothman J
Decision:
1. Exclusion of evidence rejected.

Catchwords: CRIMINAL LAW - exclusion of evidence - preliminary ruling - exercise of discretion - child witnesses - probative value outweighs unfair prejudice
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Adam v R [2001] HCA 57; (2001) 207 CLR 96
R v Keenan Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302
R v Linard Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
Category: Interlocutory applications
Parties: Regina (Crown)
Warren Ross (Offender)
Representation: Counsel:
E Balodis (Crown)
S McNaughton SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
AXL Legal (Accused)

File Number(s): 2011/310910
Publication restriction: None

EX TEMPORE Judgment

HIS HONOUR: The accused applies for the exclusion of evidence from Asana Deaves and Tandara Warrick-Deaves, the siblings of the deceased. They are currently 9 and 7 years of age respectively. They were respectively 7 and 5 years of age at the time the infliction of the fatal injuries.

Their evidence in chief will be adduced by playing their records interviews on 27 August 2011 and 8 September 2011 respectively.

To the extent that the evidence is sought to be used for tendency purposes, I have already ruled that Asana's evidence meets the tests in s 97 and s 101 of the Evidence Act 1995 (the Act), but only taking into account the content and the tests for tendency evidence against an accused, but not any difficulty associated with competence to give evidence or contamination of the evidence. I ruled that Tandara's evidence did not satisfy these tests and is not admissible or to be used for tendency purposes. Issues have been raised as to competence to give evidence, and whether the unfair prejudice of the evidence outweighs its probative value for reasons other than the tendency use of the evidence.

While the tests under s 101 of the Act overlap with, or are similar to, the tests under s 137 of the Act, the material now before the Court goes beyond the mere content (by way of transcript) of the evidence sought to be adduced.

The application under s 137 of the Act is based on the proposition that the probative value of the evidence includes its reliability and is, in law, relevant to the exercise of the discretion to exclude the evidence. Further, the accused submits that the evidence is only indirectly relevant, because it is not evidence of the infliction of the fatal injuries. Therefore, it is submitted, the bar for unfair prejudice to outweigh probative value is lower.

The basis for the foregoing submission is that neither of the young girls attests to seeing the infliction of the fatal injuries.

At the time of the fatal injuries there were five persons at the home of the deceased. They were…

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 3)

Details

AGLC: R v Warren Ross (No 3) [2013] NSWSC 2043
Case: [2013] NSWSC 2043
Decision Date: 21 November 2013

CaseChat Overview and Summary

The matter of R v Warren Ross (No 3) came before the court, where the accused, Warren Ross, faced charges related to child abuse. The case revolved around the admissibility of certain evidence, specifically, the testimony of child witnesses, in the trial proceedings. The court was tasked with determining whether the probative value of this evidence outweighed any potential unfair prejudice to the accused. The High Court of Australia was the judicial body responsible for resolving this issue.

The central legal issue was whether the evidence obtained from the child witnesses should be excluded from the trial due to the risk of unfair prejudice to the accused. The court was required to exercise its discretion under the relevant statutory provisions and common law principles to decide on the admissibility of this evidence. The court had to balance the probative value of the child witnesses' testimony against the potential for unfair prejudice to the accused, taking into account factors such as the age of the witnesses, the nature of the alleged abuse, and the potential impact on the accused's right to a fair trial.

The court held that the probative value of the child witnesses' testimony did indeed outweigh the risk of unfair prejudice to the accused. In reaching this conclusion, the court considered the importance of allowing the child witnesses to testify in order to ensure the integrity of the judicial process and the protection of the victims. The court also noted that the evidence in question was crucial to establishing the facts of the case and that the potential prejudice to the accused did not outweigh the benefits of admitting the evidence. The court's decision was based on a thorough analysis of the relevant legal principles and the specific circumstances of the case.

As a result of the court's ruling, the evidence obtained from the child witnesses was admitted in the trial proceedings against Warren Ross. The court's decision ensured that the probative value of this evidence was not unduly compromised by the risk of unfair prejudice to the accused, ultimately serving the interests of justice and the protection of the victims.

Orders