R v Ellis [2022] NSWDC 3

District Court New South Wales

Medium Neutral Citation: R v Ellis [2022] NSWDC 3 Hearing dates: 31 January 2022 – 2 February 2022 Date of orders: 1 February 2022 Decision date: 02 February 2022 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [53 - 56] Catchwords: EVIDENCE — Discretions — Exclusion of evidence — Criminal proceedings - ERISP Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) LEPRA Evidence Act 1995 (NSW) Cases Cited: Cook v The Queen [2016] VSCA 174. Phan (2001) 123 A Crim R 30 Clark (1997) 97 A Crim R 414 Ireland (1970) 126 CLR 321 Category: Procedural rulings Parties: Regina (Crown) Ellis (Accused) Representation: Morters SC Counsel for the DPP Segal Counsel for the Accused File Number(s): 2020/00257051 Publication restriction: Restricted until after trial. Restriction Lifted.

Judgment

Introduction 1. The accused, Keysha Ellis, is to be tried on an indictment containing 4 counts, with counts 2, 3 and 4 being alternative charges. Count 1 alleges armed robbery, count 2 robbery, count 3 maintaining and assisting Daniel Ashenhurst when knowing he had committed armed robbery and count 4 maintaining and assisting Daniel Ashenhurst knowing he had committed robbery. 2. The trial was listed to commence on 31 January 2022 and a jury was empanelled that day and asked to return on 2 February 2022 when it was anticipated certain pre-trial issues would be resolved. The accused had filed a notice of motion dated 17 January 2022 seeking the exclusion of evidence relating to a tracking device that had been worn allegedly by Mr Ashenhurst. Mr Ashenhurst has pleaded guilty to armed robbery and has been sentenced. It remains for the Crown to prove in this trial that he committed the offence hence the relevance of the tracking device material. 3. As it has transpired that order sought by the motion was not pressed with the parties being able to resolve the issue. 4. In submissions provided by the accused and dated 16 January 2022 two further matters were raised. Firstly the accused seeks to exclude either entirely or in part the ERISP of the accused. The second issue related to the way in which character evidence would be treated at the trial. The issue as to character had two different aspects. One related to evidence that the accused was on a methadone program. The second aspect was one the parties initially reached agreement on to the following effect, though just prior to the delivery of these rulings the Court was informed the agreement set out at [4.2] was no longer in place, and that this did not give rise to the need for any further ruling: 1. It is agreed that the accused can in either cross examination of a Crown witness or in evidence in chief of the accused raise character in a limited respect namely to the extent that the accused has no criminal history as to robbery or armed robbery. The Crown has agreed to this and further that it will not seek to lead evidence or cross-examine the accused as to other criminal activity that may have been committed by the accused. 2. That the accused may lead evidence of her relationship with Mr Ashenhurst so as to put the events of the evening in question in the context. This is expected to include evidence of an abusive relationship subject to violence both verbal and physical, and harassment. The Crown does not object to this course and further agrees that it will not in response to this evidence seek to lead any evidence adverse to the character of the accused and further will not lead evidence of the apprehended violence order that was in place with the accused as the person in need of protection and Mr Ashenhurst as the defendant, an assurance that had been sought by the accused. 5. There then arose another issue with the accused objecting to the tender of three photographs served by the Crown. Those photographs were said to have been taken from the parking space in which the accused was said to be parked in her car across from the scene of the robbery by Mr Ashenhurst. For reasons given orally in the course of these various applications, those photographs were excluded. 6. What therefore remains to be determined is whether part or all of the ERISP is excluded and what is to become of the methadone evidence. The only evidence of the accused being on a methadone program comes from the ERISP. In the event the ERISP is totally excluded the issue would be dealt with in that way. However, should the accused give evidence and if the material about methadone was otherwise considered admissible on the basis argued for by the Crown then it may well be that the Crown seeks to adduce that evidence by way of cross examination. It is therefore appropriate that a ruling be made as to the admissibility of such evidence. I will deal with the admissibility of the methadone evidence or potential methadone evidence first and then deal with the ERISP.