R v Scott McCONALOGUE [2010] NSWCCA 56

R v Scott McCONALOGUE [2010] NSWCCA 56

The District Court judge erred in rejecting both items of evidence. The respondent had not been arrested for a Commonwealth offence and no basis was shown for a breach of s 23F of the Crimes Act 1914 (Cth), so the finding underpinning exclusion of the pistol statement under ss 90 and 138 of the Evidence Act 1995 was erroneous. Both the pistol evidence and the hydroponic set up evidence had significant probative value because they tended to show that the relationship between Holland and the respondent was not an ordinary domestic tenancy, an important issue in the Crown's circumstantial case. The hydroponic evidence was not tendered to prove cannabis cultivation by the respondent or...

Jurisdiction
Australia
Judgment Date
07 April 2010
Procedural Posture
Crown Appeal Against Pre Trial Evidentiary Rulings / Appeal to the New South Wales Court of Criminal Appeal From District Court Evidentiary Rulings Under S 5 F of the Criminal Appeal Act 1912
Outcome
Appeal allowed; evidentiary rulings set aside.
Legal Topics
['knowingly Taking Part in Manufacture or Production of Amphetamine' 'circumstantial Evidence' 'evidentiary Rulings' 'crown Appeal' 'cautioning Suspects' 'unfair Prejudice' 'improperly Obtained Evidence']
['criminal Law' 'evidence'] ['knowingly Taking Part in Manufacture or Production of Amphetamine' 'circumstantial Evidence' 'evidentiary Rulings' 'crown Appeal' 'cautioning Suspects' 'unfair Prejudice' 'improperly Obtained Evidence']

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Procedural Posture

Crown Appeal Against Pre Trial Evidentiary Rulings / Appeal to the New South Wales Court of Criminal Appeal From District Court Evidentiary Rulings Under S 5 F of the Criminal Appeal Act 1912

Legal Issues

  1. 1 ["Whether the rejection of evidence of the respondent's knowledge of a pistol in the house and evidence of a hydroponic set up substantially weakened the Crown case for the purposes of s 5F(3A) of the Criminal Appeal Act 1912." "Whether evidence of the respondent's statement that there was a pistol in the bedroom was obtained in contravention of s 23F of the Crimes Act 1914 (Cth) and should be rejected under ss 90 or 138 of the Evidence Act 1995." 'Whether evidence of the hydroponic set up in the third bedroom should be rejected under s 137 of the Evidence Act 1995 as unfairly prejudicial.' 'Whether the evidence concerning the pistol and hydroponic set up was probative of the true nature of the relationship between the respondent and Kane Holland.']

Ratio Decidendi

The District Court judge erred in rejecting both items of evidence. The respondent had not been arrested for a Commonwealth offence and no basis was shown for a breach of s 23F of the Crimes Act 1914 (Cth), so the finding underpinning exclusion of the pistol statement under ss 90 and 138 of the Evidence Act 1995 was erroneous. Both the pistol evidence and the hydroponic set up evidence had significant probative value because they tended to show that the relationship between Holland and the respondent was not an ordinary domestic tenancy, an important issue in the Crown's circumstantial case. The hydroponic evidence was not tendered to prove cannabis cultivation by the respondent or...

Court Disposition

Appeal allowed; evidentiary rulings set aside.

Orders

  • ["Set aside the rulings rejecting evidence of the respondent's knowledge of the presence of a pistol in the house." 'Set aside the ruling rejecting evidence of the hydroponic set up in the third bedroom.']