R v Ana Maria VALDEBENITO [2008] NSWDC 94

New South Wales District Court

CITATION: R v Ana Maria VALDEBENITO [2008] NSWDC 94

HEARING DATE(S): 12/05/08, 13/05/08

JUDGMENT DATE: 14 May 2008

JURISDICTION: Criminal

JUDGMENT OF: Norrish QC DCJ

DECISION: Refusal to admit into evidence material sought to be relied upon by the prosecution as 'tendency and/or coincidence' evidence.

CATCHWORDS: CRIMINAL LAW - admissibility of evidence - tendency rule - coincidence rule

Evidence Act 1995 LEGISLATION CITED: Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)

R v Lockyer (1996) 89 A Crim R 457 R v Lock (1997) 91 A Crim R 356 R v Fletcher [2005] NSWCCA 338 R v Merritt (unreported, 10 March 1999, NSWCCA) CASES CITED: R v Zhang [2005] NSWCCA 437 Pfenning v The Queen (1995) 182 CLR 528 R v Ellis (2003) 58 NSWLR 700 HML & Ors v The Queen [2008] HCA 16 Perry v The Queen [1982] HCA 75 Sutton v The Queen [1984] HCA 5

PARTIES: D.P.P. (Commonwealth) Ana Maria Valdebenito

FILE NUMBER(S): 07/11/0695

COUNSEL: D Lee (Crown) N Carroll (Accused)

SOLICITORS: Commonwealth Director of Public Prosecution (Crown) George Sten & Co (Accused)

JUDGMENT On admissibility of evidence

INTRODUCTION

1 Applications are made by the accused, known either as Ana Maria Nieto or Ana Maria Valdebenito, to exclude from the prosecution case, evidence that it would seek to reply upon as either tendency or coincidence evidence as provided for in the Evidence Act 1995. The evidence in question is evidence relating to the conduct of the accused in relation to matters to which the accused has pleaded guilty, either at the Local Court ("The Local Court Plea Evidence") or in the District Court ("The District Court Plea Evidence"). This evidence in my judgment I may refer to from time to time as simply "the plea evidence". The Crown alternatively wishes to rely upon this evidence, that is the plea evidence as evidence of "context". This course is further opposed by the accused.