R v Smith [2008] NSWCCA 247

Reported Decision: 190 A Crim R 8

New South Wales Court of Criminal Appeal

CITATION: R v Smith [2008] NSWCCA 247

HEARING DATE(S): 14 October, 2008

JUDGMENT DATE: 30 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Blanch J at 2; Hislop J at 26

DECISION: Appeal allowed. Ruling made by trial judge vacated.

CATCHWORDS: Crown appeal - Tendency evidence

Criminal Appeal Act, 1912, s5F(3A) LEGISLATION CITED: Crimes Act 1900, s61M(1), s61M(2), s61J, s66A Evidence Act 1995, s97, s98, s101(2)

CATEGORY: Principal judgment

R v Fletcher (2005) 156 A Crim R 308 R v Harker [2004] NSWCCA 427 CASES CITED : R v Milton [2004] NSWCCA 195 R v GAC [2007] NSWCCA 315 R v Shamouil (2006) 66 NSWLR 228 R v SJRC [2007] NSWCCA 142

PARTIES: Regina (Appellant) James Duncan Smith (Respondent)

FILE NUMBER(S): CCA 2007/00011356

COUNSEL: D C Frearson SC (Appellant) J S Stratton SC (Respondent)

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Appellant) Adams & Partners (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/00011356

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 30 July, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v James Smith

IN THE COURT OF CRIMINAL APPEAL

CCA 2007/00011356 McCLELLAN CJ at CL BLANCH J HISLOP J

30 October, 2008 Regina v James Duncan SMITH

1 McCLELLAN CJ at CL: I agree with Blanch J.

2 BLANCH J: This is an appeal brought by the Crown pursuant to section 5F(3A) of the Criminal Appeal Act, 1912, against a ruling by the trial judge that evidence of tendency and coincidence sought to be tendered was not admissible under section 97 and section 98 of the Evidence Act, 1995. In order to succeed the Crown must demonstrate the ruling "eliminates or substantially weakens" the prosecution's case – see section 5F(3A) Criminal Appeal Act, 1912.