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Salgado v The The Queen

Salgado v The The Queen

Case [2022] NSWCCA 58 18 March 2022

Admissibility of Evidence

Tendency Evidence

Unfair Prejudice

Anti-Tendency Direction

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Salgado v R [2022] NSWCCA 58
Hearing dates: 20 August 2021
Date of orders: 18 March 2022
Decision date: 18 March 2022
Before: Brereton JA at [1];
Campbell J at [2];
Hamill J at [7]
Decision:
(1)   To the extent necessary, grant leave to appeal against the convictions on counts 1, 4 and 5.
(2)   Allow the appeal.
(3)   Quash the convictions in relation to counts 1, 4 and 5.
(4)   Confirm the convictions on counts 2, 3 and 6.
(5)   Order a re-trial on counts 1, 4 and 5.
(6)   Quash the aggregate sentence imposed on 21 February 2020.
(7)   Remit the matter to the District Court for retrial in relation to counts 1, 4 and 5 and resentence of Counts 2, 3 and 6 upon finalisation of those proceedings. I direct that the matter be placed in the Arraignments List at Sydney District Court on 25 March 2022 at 9.30am.

Catchwords:
CRIMINAL LAW – evidence – admissibility – multiple counts of drug supply – where some offences admitted and others denied – cross-admissibility of evidence – where evidence not relied on as tendency evidence – whether admissible on any other basis – whether relevant to rebut accused person’s defence – whether relationship evidence – where co-offender in custody at the time of subsequent offending – risk of tendency reasoning – danger of unfair prejudice – whether directions able to cure risk of impermissible reasoning
CRIMINAL LAW – adequacy of directions – whether anti-tendency direction required – risk of impermissible reasoning high – where direction not to reason “automatically” that accused guilty of other offences – whether Prosecutor’s address increased the risk of tendency reasoning

Legislation Cited:
Criminal Appeal Act 1912 (NSW) ss 5(1), 6(1)
Criminal Procedure Act 1986 (NSW) ss 21(2)(a), 29(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1)-(2), 29
Evidence Act 1995 (NSW) ss 97, 98, 99, 100, 101, 137
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
BRC v R [2020] NSWCCA 176; (2020) 284 A Crim R 124
De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21
Hamilton (a pseudonym) v R [2020] NSWCCA 80
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
Hoch v The Queen (1988) 165 CLR 292; [1998] HCA 50
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14,
JWM v R [2014] NSWCCA 248; (2014) 245 A Crim R 538
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
Mac v R [2014] NSWCCA 24
Makin v The Attorney General for NSW [1894] AC…

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 Salgado v The The Queen

Details

AGLC: Salgado v The The Queen [2022] NSWCCA 58
Case: [2022] NSWCCA 58
Decision Date: 18 March 2022

CaseChat Overview and Summary

In this case, the appellant, Salgado, was convicted of three counts of supplying a prohibited drug and sentenced to imprisonment. The prosecution's case included evidence of a fourth drug supply offence that the appellant did not deny, as well as a fifth drug supply offence that he denied. The central issue before the court was whether the evidence of the fourth offence was admissible to prove the fifth offence, given that the appellant had denied the fifth offence. The court considered whether the evidence could be admitted on a basis other than as tendency evidence, specifically whether it was relevant to rebut the appellant's defence and whether it was relationship evidence. The court also assessed the risk of unfair prejudice and whether any directions could mitigate this risk.

The court held that the evidence of the fourth offence was not admissible as tendency evidence but could potentially be admitted on another basis. The court found that the evidence was relevant to rebut the appellant's defence, which included the claim that the drug supply was not his. The court determined that the evidence was not relationship evidence because the co-offender was in custody at the time of the subsequent offending. The court further considered the risk of unfair prejudice, finding that it was significant due to the risk of the jury reasoning that the appellant was guilty of the fifth offence based on the fourth offence. The court concluded that the risk of tendency reasoning could not be adequately mitigated by directions, even though the prosecution had given an anti-tendency direction.

The court found that the trial judge's directions were insufficient to prevent the jury from engaging in impermissible reasoning. The directions did not explicitly prohibit the jury from reasoning that the appellant was guilty of the fifth offence based on the fourth offence. The court also considered the prosecutor's address, which did not reduce the risk of tendency reasoning. Consequently, the court found that the evidence of the fourth offence should not have been admitted. The appeal was allowed, the convictions were quashed, and a retrial was ordered. The court did not provide specific orders regarding the retrial, leaving that matter to be determined in the lower court.

Orders