R v Fitzpatrick (No 2) [2019] NSWSC 836

Supreme Court New South Wales

Medium Neutral Citation: R v Fitzpatrick (No 2) [2019] NSWSC 836 Hearing dates: 1; 2 July 2019 Date of orders: 02 July 2019 Decision date: 02 July 2019 Jurisdiction: Common Law Before: Campbell J Decision: 1. The material constituting Exhibit Voir Dire 1 is admissible; 2. The nail package depicted the in photographs annexed to Exhibit Voir Dire 4 is admissible. Catchwords: ADMISSIBILITY OF EVIDENCE – determining admissibility of "bomb documents bundle" and nail package – assumption as to admissibility that evidence will be accepted – circumstantial nature of case – whether evidence which may be weak in isolation may form cogent part of Crown case when taken with other circumstances – held evidence admitted.

TENDENCY EVIDENCE – whether evidence that is capable of being seen as tendency evidence requires the evidence be dealt with for admissibility purposes as tendency evidence – held evidence going to state of mind of accused is not always tendency evidence – held evidence capable of satisfying the jury that certain items were in the accused's possession may admissible as to state-of-mind of accused.

MISUSE OF EVIDENCE – misuse of evidence - whether in admitting evidence there is a danger that a jury may give undue weight to evidence for purposes other than the reasons for which it was admitted – held such risk can be mitigated through appropriate directions to jury and by providing the proper approach required for deciding a circumstantial case – evidence admitted. Legislation Cited: Evidence Act 1995 (NSW), ss 94 – 101 Cases Cited: Burrel v Regina [2009] NSWCCA 163; 196 ACrim R 199 Chamberlain v The Queen (No 2) (1993) 179 CLR 44; [1993] HCA 71 Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 Strachan v R [2017] NSWCCA 322 Category: Procedural and other rulings Parties: Regina (Crown) Paul John Fitzpatrick (Accused) Representation: Counsel: J. Tunks (Crown) D. Price (Accused)