R v Chase (a pseudonym) [2018] NSWCCA 71

R v Chase (a pseudonym) [2018] NSWCCA 71

The proposed evidence had significant probative value and, given the anticipated issue of the respondent's knowledge of the drugs found under or near the passenger seat of the taxi, its exclusion would substantially weaken the prosecution case. The primary judge erred in principle by treating speculative consequences of the respondent's pending appeal from the earlier conviction and the revisiting of the earlier trial as powerful relevant prejudice against the respondent. The exclusion order therefore had to be set aside, but the Court declined to make a further order that the evidence was admissible because other admissibility considerations had not been canvassed.

Jurisdiction
Australia
Judgment Date
18 April 2018
Procedural Posture
Criminal Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw) Against an Interlocutory Judgment Excluding Proposed Tendency and Coincidence Evidence / Appeal From District Court Interlocutory Ruling
Outcome
Appeal allowed; order excluding proposed tendency and coincidence evidence set aside.
Legal Topics
['tendency Evidence' 'coincidence Evidence' 'interlocutory Prosecution Appeal' 'probative Value and Prejudicial Effect' 'possession of Prohibited Drugs for Supply']
['criminal Law' 'evidence' 'criminal Procedure'] ['tendency Evidence' 'coincidence Evidence' 'interlocutory Prosecution Appeal' 'probative Value and Prejudicial Effect' 'possession of Prohibited Drugs for Supply']

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Procedural Posture

Criminal Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw) Against an Interlocutory Judgment Excluding Proposed Tendency and Coincidence Evidence / Appeal From District Court Interlocutory Ruling

Legal Issues

  1. 1 ['Whether the exclusion of the proposed tendency and coincidence evidence eliminated or substantially weakened the prosecution case for the purposes of s 5F(3A) of the Criminal Appeal Act 1912 (NSW).' 'Whether the primary judge erred in concluding under s 101(2) of the Evidence Act 1995 (NSW) that the prejudicial effect of the evidence was not substantially outweighed by its probative value.' 'Whether prejudicial effect under s 101(2) is limited to the possible misuse of evidence by the jury.' 'Whether the Court of Criminal Appeal should itself determine that the proposed evidence is admissible as tendency and coincidence evidence.']

Ratio Decidendi

The proposed evidence had significant probative value and, given the anticipated issue of the respondent's knowledge of the drugs found under or near the passenger seat of the taxi, its exclusion would substantially weaken the prosecution case. The primary judge erred in principle by treating speculative consequences of the respondent's pending appeal from the earlier conviction and the revisiting of the earlier trial as powerful relevant prejudice against the respondent. The exclusion order therefore had to be set aside, but the Court declined to make a further order that the evidence was admissible because other admissibility considerations had not been canvassed.

Court Disposition

Appeal allowed; order excluding proposed tendency and coincidence evidence set aside.

Orders

  • ['Allow the appeal by the Director of Public Prosecutions against the judgment in the District Court given on 27 November 2017.' 'Set aside the order excluding the proposed tendency and coincidence evidence.']