R v Dickson; R v Issakidis (No 6) [2014] NSWSC 1368

R v Dickson; R v Issakidis (No 6) [2014] NSWSC 1368

The Court held that the Crown's failure to identify the new Folder 1 documents as proposed exhibits under s 142(1)(f) engaged the exclusionary discretion in s 146(1). Given the complexity of the trial, the late notification, the absence of a persuasive explanation, and the generally low or not sufficiently high probative value of most new documents, the balance of Folder 1 should be excluded. However, the original three-page document was allowed because the third page was already in evidence and the additional two pages in substance completed an incomplete tendered document with reasonable probative value; any procedural unfairness could be addressed by recalling witnesses if necessary,...

Jurisdiction
Australia
Judgment Date
03 October 2014
Procedural Posture
Criminal Trial; Procedural and Evidentiary Ruling / Day 32 of the Trial, During the Crown Case, on the Crown's Proposed Late Tender of Folder 1 Documents
Outcome
Tender allowed in part and otherwise rejected.
Legal Topics
['pre Trial Disclosure' 'late Tender of Documents' 'case Management of Criminal Proceedings' 'exclusion of Evidence' 'unfair Prejudice' 'probative Value']
['evidence' 'criminal Procedure'] ['pre Trial Disclosure' 'late Tender of Documents' 'case Management of Criminal Proceedings' 'exclusion of Evidence' 'unfair Prejudice' 'probative Value']

Case Brief

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Procedural Posture

Criminal Trial; Procedural and Evidentiary Ruling / Day 32 of the Trial, During the Crown Case, on the Crown's Proposed Late Tender of Folder 1 Documents

Legal Issues

  1. 1 ['Whether the Crown should be permitted late in the trial to tender documents in Folder 1 that were not identified as proposed exhibits under s 142(1)(f) of the Criminal Procedure Act 1986 (NSW).' 'Whether the Court should exclude the second category of documents in Folder 1 under s 146(1) of the Criminal Procedure Act 1986 (NSW).' 'Whether s 135 of the Evidence Act 1995 (Cth) provided a basis to reject the tender of the three-page document or other material because of unfair prejudice.' 'Whether originals of documents already in evidence could be tendered and the jury informed of where they were found and their proximity to other documents in evidence.']

Ratio Decidendi

The Court held that the Crown's failure to identify the new Folder 1 documents as proposed exhibits under s 142(1)(f) engaged the exclusionary discretion in s 146(1). Given the complexity of the trial, the late notification, the absence of a persuasive explanation, and the generally low or not sufficiently high probative value of most new documents, the balance of Folder 1 should be excluded. However, the original three-page document was allowed because the third page was already in evidence and the additional two pages in substance completed an incomplete tendered document with reasonable probative value; any procedural unfairness could be addressed by recalling witnesses if necessary,...

Court Disposition

Tender allowed in part and otherwise rejected.

Orders

  • ['Tender of the original three-page document allowed.' 'Tender of the original documents already in evidence allowed, and the jury to be apprised of the location of those documents and their proximity to any other documents in evidence.' 'The balance of the tender of Folder 1 is rejected.']