AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 31 July 2000

REGINA v. WILLOUGHBY

[2000] NSWSC 751

Homicide
CRIMINAL LAW TRIAL EVIDENCE TENDENCY EVIDENCE EFFECT ON TRIAL NECESSITY FOR NOTICE

Citation: Regina v Willoughby [2000] NSWSC 751
Court: Supreme Court of New South Wales (Criminal Division)
Date: 31 July 2000
Judge(s): Greg James J (with a jury of 11)

Background

The accused faced trial for murder in a circumstantial evidence case that turned critically on identifying the assailant. A key strand of the Crown case involved mobile phone records, which the Crown sought to use to place the accused at or near the scene of the killing. An eyewitness had observed the assailant apparently using a mobile phone at the relevant time.

At almost the end of the Crown case, the Crown applied to call evidence that the accused had used the same mobile phone and a voice answering system on the night before the killing in the course of trading in marijuana. The Crown argued this evidence demonstrated the accused habitually or exclusively used the handset, thereby linking him to the phone's use at the time of the killing.

The problem was that no notice had been given to the defence that this material would be used as tendency evidence under the Evidence Act 1995. The defence applied for the jury to be discharged.

  • Whether the late-noticed evidence constituted tendency evidence under s 97 of the Evidence Act 1995, or alternatively evidence of a tool of crime, and whether it was admissible under ss 97, 101, 135, and 137 of that Act.
  • Whether the absence of adequate or reasonable notice of the tendency evidence purpose could be excused by dispensing with notice under s 100 of the Evidence Act 1995.
  • Whether any prejudice to the accused from the late notice could be cured, and if so on what terms.
  • Whether the jury should be discharged and the trial adjourned.

Decision

The court accepted the evidence was of high probative value. Whether characterised as tendency evidence or as evidence of a tool of crime used to identify the accused, it was capable of having a critical effect on the trial's outcome. The court held that the evidence answered the admissibility tests under ss 97 and 101, and that the discretions under ss 135 and 137 would not have been exercised in the accused's favour. The prospect of a proper jury direction on the marijuana dealing evidence was found sufficient to address any real risk of unfair prejudice from its criminal nature.

The court then turned to the absence of required notice. Under the Evidence Act 1995, tendency evidence cannot be used without notice unless the court dispenses with that requirement under s 100. The court was disposed to admit the evidence, but only on terms that protected the defence from disadvantage caused by the Crown's failure to give timely notice.

Given the stage the trial had reached and the manner in which the defence had conducted its case, a mere adjournment was insufficient to remedy the prejudice. The Crown conceded it could not oppose a discharge. The court accepted the Crown's undertaking to pay the costs thrown away by the accused as a result of the discharge. The court noted that the Crown's lack of timely preparation had already produced difficulties during the trial and emphasised firmly that all additional evidence would need to be properly notified before the retrial.

The court expressed regret that the trial had to be aborted at this late stage, but concluded that where prejudice from a failure to give notice can be cured, a party should not be denied the opportunity to present evidence potentially crucial to a just determination.

Orders Made

  • Jury discharged.
  • Trial adjourned.
  • Matter listed for the next callover.
  • Exhibits returned to the parties.
  • Crown's undertaking to pay costs thrown away by the accused noted on the record.

Key Takeaways

  • Under the Evidence Act 1995, tendency evidence cannot be led without reasonable notice to the defence unless the court dispenses with that requirement under s 100; failure to give notice does not automatically lead to exclusion but can require significant remedial steps.
  • Evidence of an accused's use of an item as a tool of crime (here, a mobile phone used in drug dealing) may be admissible not as tendency evidence in the strict sense, but to identify the accused with the item's use at the time of an offence.
  • Where late notice of tendency evidence has caused prejudice that cannot be cured by a direction or short adjournment alone, discharge of the jury may be necessary, with costs consequences for the party responsible for the failure.
  • The Supreme Court emphasised that a party should not be denied the opportunity to lead evidence critical to a just determination merely because notice was not given in time, provided the resulting prejudice can be cured on appropriate terms.
  • Repeated instances of late preparation by the Crown during a trial are a matter the court will note, and the court here placed the parties on clear notice that full disclosure of any additional evidence would be required well before the retrial.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 100, 101, 135, 137

Cases cited: None cited in the judgment or metadata.