R v Passmore [2021] NSWCCA 201

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Passmore [2021] NSWCCA 201 Hearing dates: 23 June 2021; final written submissions 26 July 2021 Date of orders: 27 August 2021 Decision date: 27 August 2021 Before: Payne JA at [1]; Price J at [98]; Wright J at [105] Decision: 1. Appeal allowed; 2. Set aside the decision of the trial judge made on 2 June 2021 (R v Passmore [2021] NSWDC 231) that evidence of the relevant parts of a six-page suicide note written by Mr Passmore on 17 February 2019 (marked as "Exhibit F") together with related questioning of Mr Passmore in a record of interview dated 21 February 2019 (marked as "Exhibit G") be excluded; 3. Set aside the ruling of the trial judge made on 1 June 2021 that evidence from the transcript of the complainant's police interview on 19 February 2019 that Mr Passmore told her to delete messages (being the answer to Q130 up to and including the answer to Q133) be excluded; 4. Set aside the ruling of the trial judge made on 31 May 2021 that the evidence of the photograph of a telephone depicting a screen shot of a message sent by Mr Passmore to the complainant's phone concerning a picture of the complainant in pyjamas (marked as "Exhibit E") be excluded; 5. Remit the matter to the trial judge. Catchwords: CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – whether trial judge's rulings on the admissibility of evidence eliminated or substantially weakened the prosecution's case – Criminal Appeal Act 1912 (NSW), s 5F(3A) CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – standard of review for the exclusion of evidence under ss 55 and 137 of the Evidence Act 1995 (NSW) – correctness standard Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F(3A), 5F(4), 5F(5) Criminal Code (Cth), s 474.27A(1) Evidence Act 1995 (NSW), ss 55, 88, 97, 135, 137 Cases Cited: Allen v R [2020] NSWCCA 173 CA v R [2017] NSWCCA 324 Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84 DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Norman v R [2012] NSWCCA 230 Quinlan v R [2006] NSWCCA 284 R v Chase (a pseudonym) [2018] NSWCCA 71 R v Cook [2004] NSWCCA 52 R v DRF [2015] NSWCCA 181; (2015) 263 A Crim R 573 R v NKS [2004] NSWCCA 114 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v Toki (No. 3) [2000] NSWSC 999; (2000) 116 A Crim R 536 R v XY [2013] NSWCCA 121 Rogerson v R; McNamara v R [2021] NSWCCA 160 The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 November 2003 Category: Procedural rulings Parties: Crown (Appellant) Mark William Passmore (Respondent) Representation: Counsel: J Single SC with K Hogan (Appellant) B Cochrane (Respondent)