R v Campbell; R v Waters (No. 3) [2023] NSWDC 628

R v Campbell; R v Waters (No. 3) [2023] NSWDC 628

The Crown's proposed tendency evidence did not satisfy the admissibility requirements. With limited exception it arose after the Count 1 period and within or near the period relevant to Count 2, to which Waters had pleaded guilty. The evidence did not rationally affect, or at least did not significantly affect, the assessment of whether Waters committed the Count 1 importation conspiracy. Taken individually and cumulatively, it rose no higher than insinuating that Waters was the kind of person more likely to have committed Count 1, and any probative value was outweighed by significant unfair prejudice. The proposed relationship evidence was also irrelevant or of insufficient probative...

Jurisdiction
Australia
Judgment Date
07 July 2023
Procedural Posture
Criminal Procedural Ruling / Crown Application During Trial to Rely on Tendency Evidence Under S97 of the Evidence Act 1995 (nsw) and to Adduce Evidence for a Non Tendency Relationship Purpose.
Outcome
Application refused.
Legal Topics
['tendency Evidence' 'relationship Evidence' 'relevance' 'probative Value' 'unfair Prejudice' 'conspiracy to Import Border Controlled Drugs' 'conspiracy to Possess Unlawfully Imported Border Controlled Drugs']
['criminal Law' 'evidence'] ['tendency Evidence' 'relationship Evidence' 'relevance' 'probative Value' 'unfair Prejudice' 'conspiracy to Import Border Controlled Drugs' 'conspiracy to Possess Unlawfully Imported Border Controlled Drugs']

Case Brief

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Procedural Posture

Criminal Procedural Ruling / Crown Application During Trial to Rely on Tendency Evidence Under S97 of the Evidence Act 1995 (nsw) and to Adduce Evidence for a Non Tendency Relationship Purpose.

Legal Issues

  1. 1 ['Whether the Crown should be permitted to adduce evidence against Waters as tendency evidence under s97 of the Evidence Act 1995 (NSW).' 'Whether the alleged tendency evidence had significant probative value in relation to Count 1, the conspiracy to import a commercial quantity of cocaine.' 'Whether the probative value of the alleged tendency evidence outweighed the danger of unfair prejudice to Waters under s101(2) of the Evidence Act 1995 (NSW).' 'Whether documents tendered for a non-tendency purpose were admissible as relationship evidence between Waters and Rohan Arnold or should be refused under s137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The Crown's proposed tendency evidence did not satisfy the admissibility requirements. With limited exception it arose after the Count 1 period and within or near the period relevant to Count 2, to which Waters had pleaded guilty. The evidence did not rationally affect, or at least did not significantly affect, the assessment of whether Waters committed the Count 1 importation conspiracy. Taken individually and cumulatively, it rose no higher than insinuating that Waters was the kind of person more likely to have committed Count 1, and any probative value was outweighed by significant unfair prejudice. The proposed relationship evidence was also irrelevant or of insufficient probative...

Court Disposition

Application refused.

Orders

  • ['The Crown application based on the amended Tendency Evidence Notice pursuant to s97 of the Evidence Act 1995 (NSW) is refused.' 'The evidence of the asserted tendency of the accused is not to be adduced into evidence at the trial of the accused Waters.' 'The Crown application to adduce evidence for a non-tendency...