R v Davidson (No. 1) [2019] NSWSC 980

Supreme Court New South Wales

Medium Neutral Citation: R v Davidson (No. 1) [2019] NSWSC 980 Hearing dates: 29 July 2019 Date of orders: 02 August 2019 Decision date: 02 August 2019 Before: Davies J Decision: 1. The Crown's application to lead the evidence as tendency evidence is rejected.

2. The Crown's application to lead the evidence as context evidence is rejected Catchwords: EVIDENCE – tendency evidence – criminal proceedings - admissibility of tendency evidence in a murder trial - whether the evidence was indeed tendency evidence - where the evidence said to evince a tendency only pointed to one prior instance of similar conduct - evidence did not amount to tendency evidence and application rejected

EVIDENCE - context evidence – criminal proceedings - admissibility of context evidence in a murder trial - - where the trial is to be conducted by judge alone – whether accused prejudiced in the context of a judge-alone trial - real issue was whether the context evidence had probative value – evidence not necessary to explain any aspect of the present offending - application to lead the evidence as context evidence rejected

EVIDENCE - evidence of judgments and convictions - s 91 Evidence Act - where the Crown sought to use findings of fact from an earlier judgment to prove the existence of a fact in the present trial - impermissible use of evidence Legislation Cited: Crimes Act 1900 (NSW) ss 23A, 37, 423C Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) ss 91, 97, 135, 137 Cases Cited: DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206 ES v R (No.1) [2010] NSWCCA 197 Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 R v Droudis (No. 13) [2016] NSWSC 1350 R v Mervyn Davidson [2018] NSWDC 45 R v Qaumi & Qaumi [2016] NSWSC 1473 R v Qaumi & Qaumi (No 2) [2016] NSWSC 1487 RHB v R [2011] VSCA 295 Texts Cited: Nil Category: Principal judgment Parties: Crown Mervyn Keith Davidson (Accused) Representation: Counsel: P Lynch (Crown) A Norrie (Accused)