La Rocca v R [2021] NSWCCA 116

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: La Rocca v R [2021] NSWCCA 116 Hearing dates: 24 May 2021 Date of orders: 24 May 2021 Decision date: 09 June 2021 Before: Adamson J at [1]; Bellew J at [148]; Cavanagh J at [150] Decision: (1) Grant leave to appeal against conviction. (2) Allow the appeal against conviction. (3) Order that there be a new trial. (4) Note that, in these circumstances, it is not necessary to determine the application for leave to appeal against sentence. Catchwords: CRIME — Appeals — Appeal against conviction — Evidence to be used for a tendency purpose not to be admitted unless it has significant probative value — Evidence lacked significant probative value and was inadmissible — Failure to direct the jury as to ways the tendency evidence could be used — Trial judge's advice or guidance as to inferences which could be drawn by the jury, in the absence of the jury, did not give rise to a reasonable apprehension of bias affecting the decision-maker — Necessary for trial judge to direct the jury as to how evidence of the appellant's conduct, which was capable of being construed as evidencing consciousness of guilt, could be used — Whether admission of evidence which was prejudicial to the appellant, upon the urging of the appellant's trial counsel, led to the appellant having an unfair trial — Incompetence of counsel — Operation of proviso excluded CRIME — Appeals — Appeal against sentence — Not addressed as the appeal against conviction allowed and new trial ordered Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Criminal Code Act 1995 (Cth), ss 11.1, 307.5 Criminal Procedure Act 1986 (NSW), s 130A Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 137, 191 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21 DJF v R [2011] NSWCCA 6; (2011) 205 A Crim R 412 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 R v Basha (1989) 39 A Crim R 337 R v Birks (1990) 19 NSWLR 677 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: Jason La Rocca (Applicant) Regina (Respondent) Representation: Counsel: B Walker SC / B Vasic (Applicant) S Callan SC / D New (Respondent)