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Court of Criminal Appeal 28 July 2025

R v Raymundo

[2025] NSWCCA 109

Assault & violence

Citation: R v Raymundo [2025] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 28 July 2025
Judge(s): Stern JA; McHugh JA; Garling J

Background

The respondent was charged, together with a co-accused, with a single count of robbery in company. The complainant, who had known the respondent for several years after meeting him during a visit to Australia, alleged that he was attacked while riding his bike and that he recognised the respondent as one of his assailants during the attack.

Before the recognition evidence could be led at trial, the District Court excluded it under s 137 of the Evidence Act 1995 (NSW), which requires a court to refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. The trial judge accepted the evidence was strongly probative but was concerned that the complainant may have been "primed" to identify the respondent, given a pre-existing suspicion about his involvement in demanding repayment of money. To challenge that priming on that basis, the respondent would need to introduce evidence about money transfers between himself and the complainant. The trial judge concluded the jury might then use that evidence to infer motive, where the Crown's case disclosed none.

The Director of Public Prosecutions appealed under s 5F(3A) of the Criminal Appeal Act 1912 (NSW). Because the joint trial was already running before a jury, the Court of Criminal Appeal heard the appeal and delivered its orders promptly, with reasons to follow.

  • Whether the trial judge correctly applied s 137 of the Evidence Act 1995 (NSW) in excluding the recognition evidence
  • Whether the respondent would, in fact, have been required to introduce unfairly prejudicial evidence in order to challenge the recognition evidence
  • Whether appropriate judicial directions to the jury could adequately address any remaining danger of unfair prejudice
  • Whether the probative value of the recognition evidence outweighed any danger of unfair prejudice to the respondent

Decision

The Court of Criminal Appeal allowed the appeal, holding that the recognition evidence should have been admitted. The Court found its probative value was high, given the complainant's longstanding personal acquaintance with the respondent. Familiarity-based recognition of someone already known to a witness carries substantial weight.

The Court rejected the premise underlying the exclusion order. It found that the respondent had several available avenues to challenge the recognition evidence without needing to introduce the money transfer evidence that the trial judge had identified as potentially prejudicial. The assumption that the respondent would be forced down that particular evidential path was not well-founded on the material before the court.

The Court also found that, even if some risk of unfair prejudice arose from admitting the recognition evidence, appropriate jury directions would adequately cure that risk. The Court outlined the directions it considered necessary. These included directions that the reliability of recognition evidence is subject to scrutiny under s 165 of the Evidence Act, that the Instagram messages could not be used in the case against the respondent, that the jury could not draw a nexus between any money transfers and those messages to establish motive, and that any evidence of money changing hands could only be used to assess the complainant's state of mind when recognising the respondent.

Applying the three-step evaluative framework from Moore (a pseudonym) v The King [2024] HCA 30, the Court concluded that the high probative value of the recognition evidence outweighed any danger of unfair prejudice. The Court noted, however, that its decision rested on the evidence expected to be given at trial, and that nothing in the reasons should limit the trial judge's discretion if that factual predicate proved ill-founded.

Orders Made

  • Appeal allowed
  • The District Court's decision excluding the recognition evidence under s 137 of the Evidence Act 1995 (NSW) was set aside
  • In lieu thereof, paragraph 2 of the respondent's notice of motion filed 27 June 2025 was dismissed
  • The question of whether the respondent should receive a certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW) was reserved, with the parties directed to exchange written submissions of no more than two pages within seven days, for determination on the papers

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), the evaluative assessment requires a court to compare the probative value of prosecution evidence against the danger of unfair prejudice, applying the structured three-step framework confirmed in Moore (a pseudonym) v The King [2024] HCA 30.
  • Recognition evidence based on a witness's longstanding personal familiarity with the defendant carries high probative value, distinguishing it from stranger identification evidence.
  • Where a defendant has multiple available ways to challenge prosecution evidence without introducing the material said to be prejudicial, the premise that exclusion is necessary to avoid unfair prejudice may not be established.
  • Appropriate jury directions remain a significant tool for managing the risk of unfair prejudice arising from admitted evidence, and a trial judge's conclusion that directions cannot adequately cure prejudice requires a sound evidentiary basis.
  • The Court of Criminal Appeal confirmed that its decision was expressly predicated on the anticipated evidence, preserving the trial judge's discretion to revisit admissibility questions if circumstances at trial differed materially.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 137, 165
- Criminal Appeal Act 1912 (NSW), s 5F
- Suitors' Fund Act 1951 (NSW), s 6

Cases:
- Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Cook [2004] NSWCCA 52
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Muldoon v The Queen [2008] NSWCCA 315; (2008) 192 A Crim R 105
- R v Benecke [1999] NSWCCA 163; (1999) 106 A Crim R 282