BAGHDADI v Regina [2011] NSWCCA 234

BAGHDADI v Regina [2011] NSWCCA 234

The trial judge did not perform the statutory task required by ss 98 and 101 of the Evidence Act 1995. He identified similarities between the carjacking and the Berala robbery without differentiating between whether the events themselves were substantially and relevantly similar and whether the circumstances in which they occurred were substantially similar, and he did not explicitly consider similarities between the carjacking and the Fresh Fruit Palace robbery or apply s 101 to that count. The evidence was therefore admitted under s 98 without the statutory preconditions being satisfied, amounting to a wrong decision on a question of law. Given the prejudicial potential of the...

Jurisdiction
Australia
Judgment Date
26 October 2011
Procedural Posture
Criminal Appeal Against Conviction / Application for Extensions of Time and Appeal to the Court of Criminal Appeal From District Court Convictions
Outcome
Appeal allowed; convictions set aside; matter remitted to the District Court for a new trial; extensions of time granted.
Legal Topics
['coincidence Evidence' 'admissibility of Evidence' 'evidence Act 1995 Ss 95, 98 and 101' 'criminal Appeal Act 1912 S 6' 'extension of Time to Appeal' 'miscarriage of Justice']
['criminal Law' 'evidence' 'appeal and Procedure'] ['coincidence Evidence' 'admissibility of Evidence' 'evidence Act 1995 Ss 95, 98 and 101' 'criminal Appeal Act 1912 S 6' 'extension of Time to Appeal' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Extensions of Time and Appeal to the Court of Criminal Appeal From District Court Convictions

Legal Issues

  1. 1 ['Whether the trial judge erred in admitting evidence of the carjacking offence as coincidence evidence in relation to both counts in the indictment.' 'Whether the trial judge performed the statutory task required by ss 98 and 101 of the Evidence Act 1995 before admitting the evidence.' 'Whether the carjacking evidence, if not admissible as coincidence evidence, could be used as circumstantial evidence without a limiting direction under s 95 of the Evidence Act 1995.' 'Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 should be applied.' 'Whether extensions of time should be granted for the notice of intention to appeal and the period during which it had effect.']

Ratio Decidendi

The trial judge did not perform the statutory task required by ss 98 and 101 of the Evidence Act 1995. He identified similarities between the carjacking and the Berala robbery without differentiating between whether the events themselves were substantially and relevantly similar and whether the circumstances in which they occurred were substantially similar, and he did not explicitly consider similarities between the carjacking and the Fresh Fruit Palace robbery or apply s 101 to that count. The evidence was therefore admitted under s 98 without the statutory preconditions being satisfied, amounting to a wrong decision on a question of law. Given the prejudicial potential of the...

Court Disposition

Appeal allowed; convictions set aside; matter remitted to the District Court for a new trial; extensions of time granted.

Orders

  • ['Extend the time for filing of a Notice of Intention to Appeal to and including 24 August 2009.' 'Extend the time during which the Notice of Intention to Appeal has effect to and including 31 August 2010.' 'Appeal allowed.' 'Set aside each conviction in the court below.' 'Remit the matter to the District Court for...