R v MR [2013] NSWCCA 236

R v MR [2013] NSWCCA 236

The trial judge erred by treating the absence of striking similarities as a threshold, by considering asserted similarities separately without evaluating their combined effect, by conflating whether the similarities showed a common group or subgroup of offenders with whether each similarity directly implicated MR, by mischaracterising the tomahawk evidence as relatively commonplace, and by identifying as prejudice under s 101 only the permissible use of the evidence for coincidence reasoning. When taken at its highest and considered with the other Crown evidence directly linking MR to some counts, the coincidence evidence had significant probative value and its exclusion substantially...

Jurisdiction
Australia
Judgment Date
18 October 2013
Procedural Posture
Crown Appeal Against Evidentiary Ruling Excluding Coincidence Evidence and Interlocutory Order Severing Counts on an Indictment / Court of Criminal Appeal Appeal Under Ss 5 F(3 A) and 5 F(2) of the Criminal Appeal Act 1912 From Rulings of Quirk DCJ in the District Court
Outcome
Crown appeals allowed.
Legal Topics
['coincidence Evidence' 'significant Probative Value' 'relevance' 'prejudicial Effect' 'severance of Counts' 'crown Appeal Against Interlocutory Judgment or Order']
['criminal Law' 'evidence' 'criminal Procedure'] ['coincidence Evidence' 'significant Probative Value' 'relevance' 'prejudicial Effect' 'severance of Counts' 'crown Appeal Against Interlocutory Judgment or Order']

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Procedural Posture

Crown Appeal Against Evidentiary Ruling Excluding Coincidence Evidence and Interlocutory Order Severing Counts on an Indictment / Court of Criminal Appeal Appeal Under Ss 5 F(3 A) and 5 F(2) of the Criminal Appeal Act 1912 From Rulings of Quirk DCJ in the District Court

Legal Issues

  1. 1 ["Whether the material in the Crown's coincidence notice was admissible for coincidence purposes under ss 55, 98 and 101 of the Evidence Act 1995." 'Whether the exclusion of the coincidence evidence eliminated or substantially weakened the prosecution case for the purposes of s 5F(3A) of the Criminal Appeal Act 1912.' 'Whether the District Court order severing the counts on the indictment should stand if the coincidence evidence was admissible.']

Ratio Decidendi

The trial judge erred by treating the absence of striking similarities as a threshold, by considering asserted similarities separately without evaluating their combined effect, by conflating whether the similarities showed a common group or subgroup of offenders with whether each similarity directly implicated MR, by mischaracterising the tomahawk evidence as relatively commonplace, and by identifying as prejudice under s 101 only the permissible use of the evidence for coincidence reasoning. When taken at its highest and considered with the other Crown evidence directly linking MR to some counts, the coincidence evidence had significant probative value and its exclusion substantially...

Court Disposition

Crown appeals allowed.

Orders

  • ['The ruling of Quirk DCJ on 05.03.13 that the material set out in the coincidence notice dated 26.02.13 as amended is not admissible for coincidence purposes be set aside.' 'The material set out in the coincidence notice dated 26.02.13 as amended be admitted for coincidence purposes.' 'The order made by Quirk DCJ...