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Selby v R

Selby v R

Case [2017] NSWCCA 40 15 March 2017

Admissibility of Evidence

Coincidence Evidence

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Selby v R [2017] NSWCCA 40
Hearing dates: 27 February 2017
Decision date: 15 March 2017
Before: Leeming JA, Schmidt J, Wilson J
Decision:
1. To the extent necessary, grant leave to appeal, confined to ground 2 of the notice of appeal supplied to the Court on 27 February 2017, and otherwise refuse leave.
2. Appeal dismissed.

Catchwords: EVIDENCE - coincidence evidence - victim was threatened on two occasions in May and October - evidence established applicant had intimidated victim on second occasion - whether error in jury being directed that it could use that evidence to find that applicant was the man who had demanded money from same victim on first occasion - relevance of dissimilarities in the evidence as to identity - no complaint to jury direction made at trial - appeal dismissed - Evidence Act 1995 (NSW), s 98.
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes Act 1900 (NSW), s 99
Criminal Appeal Rules, r 4
Evidence Act 1995 (NSW), ss 95, 97, 98, 101
Cases Cited: ARS v R [2011] NSWCCA 266
El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10
Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
Lin v Tasmania [2015] TASCCA 13
Page v The Queen [2015] VSCA 357
Petroulias v R [2014] NSWCCA 108
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
R v Razzak [2004] NSWCCA 62
R v Winters [2010] SASC 100
Saoud v R [2014] NSWCA 136
Tekely v R; Nagle v R [2007] NSWCCA 75
Category: Principal judgment
Parties: Mark James Selby (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Carroll; PD Swaine (Applicant)
S Dowling SC (Respondent)
Solicitors:
Moustafa Kheir (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/374889
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

23 September 2016

Before:

Armitage ADCJ

File Number(s):

2012/00375889

Judgment

THE COURT: Mark James Selby was charged with one count of demanding money with menaces, contrary to s 99(1) of the Crimes Act 1900 (NSW), and one count of intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The victim and location in each case was the same: Mr Ravin Singh at his business premises at Arndell Park in western Sydney. The first occasion was on 6 July 2012; the second on 15 October 2012.
Shortly before the trial, Mr Selby pleaded guilty to the second count. The Crown’s case was much stronger in relation to that count. It included (a) CCTV footage of a car registered in the name of the applicant’s wife arriving and leaving the premises; (b) expert evidence identifying his fingerprints on the door of the premises, and (c) expert DNA evidence from a swab taken from the door handle…

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 Selby v R

Details

AGLC: Selby v R [2017] NSWCCA 40
Case: [2017] NSWCCA 40
Decision Date: 15 March 2017

CaseChat Overview and Summary

Selby was the appellant who brought an appeal against the respondent, the Crown, to the NSW Court of Criminal Appeal. The dispute centred on the admission of coincidence evidence in the appellant’s trial for armed robbery and intimidation. The Court was required to determine whether the trial judge erred in directing the jury that it could consider evidence of the appellant intimidating the victim on one occasion to infer that he was the person who had demanded money from the same victim on a different occasion.

The court examined whether the trial judge had erred in his direction to the jury concerning the use of coincidence evidence. It considered the relevance of the dissimilarities in the evidence regarding the identity of the person who had committed the two separate acts of intimidation. The court noted that no objection was raised to the jury direction during the trial. The court concluded that, while the evidence of the two incidents was dissimilar, the trial judge did not err in his direction to the jury. The court held that the direction did not constitute an error warranting the setting aside of the conviction and sentence. Therefore, the appeal was dismissed. The court found that the trial judge’s direction did not prejudice the appellant and did not affect the safety of the conviction.

Orders