McNamara v The King [2023] HCA 36

McNamara v The King [2023] HCA 36

Section 135(a) of the Evidence Act 1995 (NSW) empowers a court to exclude otherwise admissible evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party; in a joint criminal trial, 'a party' includes any co-accused. Thus, the trial judge and Court of Criminal Appeal were correct to conclude the evidence could be excluded on the basis of its prejudicial effect to a co-accused, and any supposed unfettered common law right of a co-accused to adduce such evidence is qualified by this discretion.

Parties
Appellant: Glen Patrick McNamara; Respondent: The King
Jurisdiction
Australia
Judgment Date
15 November 2023
Procedural Posture
Criminal Appeal / Appeal to the High Court of Australia From the Supreme Court of New South Wales (court of Criminal Appeal)
Outcome
Appeal dismissed.
Legal Topics
Discretionary Exclusion of Evidence, Joint Criminal Trial, Meaning of 'a Party' Under Evidence Act 1995 (nsw) S 135(a)
Criminal Law Evidence Law Discretionary Exclusion of Evidence Joint Criminal Trial Meaning of 'a Party' Under Evidence Act 1995 (nsw) S 135(a)

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Parties

Glen Patrick McNamara

Appellant

The King

Respondent

Procedural Posture

Criminal Appeal / Appeal to the High Court of Australia From the Supreme Court of New South Wales (court of Criminal Appeal)

Legal Issues

  1. 1 Whether the discretion in s 135(a) of the Evidence Act 1995 (NSW) to exclude unfairly prejudicial evidence applies to evidence that is prejudicial to a co-accused in a joint trial
  2. 2 Whether 'a party' in s 135(a) of the Evidence Act 1995 (NSW) includes a co-accused in a joint criminal trial

Ratio Decidendi

Section 135(a) of the Evidence Act 1995 (NSW) empowers a court to exclude otherwise admissible evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party; in a joint criminal trial, 'a party' includes any co-accused. Thus, the trial judge and Court of Criminal Appeal were correct to conclude the evidence could be excluded on the basis of its prejudicial effect to a co-accused, and any supposed unfettered common law right of a co-accused to adduce such evidence is qualified by this discretion.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.