Regina v R.N [2005] NSWCCA 413

New South Wales Court of Criminal Appeal

CITATION: Regina v R.N [2005] NSWCCA 413

HEARING DATE(S): 2 December 2005

JUDGMENT DATE: 2 December 2005

JUDGMENT OF: Grove J at 19; Sully J at 1; Howie J at 20

DECISION: Crown appeal allowed; Challenged ruling set aside

Criminal Appeal Act (NSW) 1912 LEGISLATION CITED: Evidence Act (NSW) 1995

Hoch v The Queen (1988) 165 CLR 292 R v Colby (1999) NSWCCA 261 BRS v The Queen (1998) 191 CLR 275 CASES CITED: R v Harker [2004] NSWCCA 427 Pfennig v The Queen (1994-1995) 182 CLR 461 at 528, 529 R v Milat, unreported: 5 September 1996

Regina PARTIES: R.N

FILE NUMBER(S): CCA 2005/2048

D. Arnott SC - Crown COUNSEL: J. Stratton SC - Respondent

S. Kavanah - Crown SOLICITORS: S. O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0112

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

- 6 - IN THE COURT OF CRIMINAL APPEAL 2005/2048

GROVE J SULLY J HOWIE J Friday 2 December 2005 REGINA v R.N

JUDGMENT

1 SULLY J: The Court orders in this matter that in any report of this judgment and in any report of the proceedings in this Court, the respondent, the complainant and the complainant's mother, are to be referred to only by the initials used ,respectively, to describe them in this judgment. 2 Before the Court is a Crown appeal, brought pursuant to section 5F(3)A of the Criminal Appeal Act 1912. The appeal is brought against a ruling upon an evidentiary issue and a trial current in the District Court and over which Judge Coolahan is presiding. 3 Mr. N, the respondent to the appeal, is to stand trial upon an indictment containing twelve counts. Each count charges against the respondent a serious sexual offence against a complainant, who is the respondent's stepdaughter. The Crown proposes to lead, as part of its case at trial, evidence from the complainant's mother. The Crown puts that evidence forward as coincidence evidence in the sense defined by s 98 of the Evidence Act 1995. 4 Before a jury had been empanelled, Judge Coolahan was told about this proposed Crown evidence. Counsel for the respondent informed his Honour that objection was taken to the admission of the evidence, the stated basis of the objecting being a real prospect of concoction between the complainant and her mother. A hearing on the voir dire was there upon conducted. Comparatively brief evidence was given by the complainant and by her mother and various statements were tendered. At the conclusion of the evidence and before the commencement of submissions, the Crown Prosecutor said to Judge Coolahan :- "Your Honour in the hope of saving some time, as I understand it from speaking to my learned friend, the main thrust of the objection is not so much that the matter or the evidence doesn't fulfil the criteria under 98(2), and 98(1)(b), more in context of the 101(2) situation your Honour. If I'm wrong on that, I don't think there's a dispute that it has within 98(1)(b) significant probative value and that they are relatively and substantially similar in the circumstances in which they occurred. I think the argument revolves around the evidence substantially to what outweighs any prejudicial effect it may have. If I'm wrong on that then." 5 Counsel for the accused once accepted the correctness of these observations of the Crown Prosecutor. In due course, the submissions of both counsel concluded and his Honour reserved his decision. The reserved decision was handed down on 10 August last. His Honour excluded the particular evidence of the complainant's mother.