AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 19 August 2025

R v Raymundo (No 2)

[2025] NSWCCA 128

Theft & property

Citation: R v Raymundo (No 2) [2025] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 19 August 2025
Judge(s): Stern JA; McHugh JA; Garling J

Background

This decision follows the principal judgment in R v Raymundo [2025] NSWCCA 109, in which the Court of Criminal Appeal allowed a Crown appeal against an interlocutory ruling made during a District Court robbery trial. The trial judge had excluded "recognition evidence," specifically the complainant's evidence that he recognised the respondent as one of the men who robbed him, on the basis that it was unfairly prejudicial under s 137 of the Evidence Act 1995 (NSW). The Crown appealed that exclusion under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), and the appeal succeeded.

Following the principal judgment, the respondent applied for a costs certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW). Such a certificate can provide financial relief to a party who is required to meet the costs of an appeal through no fault of their own. The respondent filed written submissions in support, and the Court determined the application on the papers.

  • Whether the respondent was entitled to a certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW) to cover the costs of meeting the Crown's successful interlocutory appeal
  • Whether the respondent had contributed to the circumstances that gave rise to the appeal
  • Whether the concurrent burden of defending the trial while preparing for the appeal was a relevant consideration favouring the grant of a certificate

Decision

The respondent advanced two arguments in support of the certificate application. First, he submitted that he had merely filed a notice of motion to exclude evidence he considered unfair and had not otherwise caused the circumstances that made the appeal necessary. Second, he pointed to the practical burden of simultaneously defending the trial at first instance while preparing to appear in the Court of Criminal Appeal.

The Court rejected the first argument by characterising the respondent's role more broadly. The trial judge's reasoning for excluding the recognition evidence, centred on the risk that the complainant had been "primed" to identify the respondent, traced directly to the respondent's own motion. Although the priming argument was initially raised by the trial judge during the hearing of that motion, the respondent adopted it and, critically, pressed the proposition that no jury direction could adequately cure the resulting prejudice. The Court found that proposition to be flawed, given that ss 116 and 165 of the Evidence Act make specific provision for directing juries about identification evidence. The respondent had failed to articulate why those directions would be insufficient.

The Court also noted that the respondent maintained the correctness of the trial judge's ruling in his submissions, and only accepted at the appeal hearing itself that appropriate directions would largely cure the prejudice identified. This belated concession reinforced the Court's view that the respondent had encouraged the error and aligned himself with it in a way that contributed to the need for the appeal.

As to the second argument, the Court observed that s 5F appeals being heard concurrently with a running trial is not unusual. This was not a case where the respondent was drawn into an appeal to ventilate a question of general principle. The appeal existed to correct an error the respondent had actively encouraged and which served his forensic interests. In those circumstances, the Court found the discretion to grant a certificate should not be exercised.

Orders Made

  • The respondent's application for a certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW) be refused.

Key Takeaways

  • A Suitors' Fund certificate will be refused where the respondent to a Crown appeal not only initiated the motion that led to the impugned ruling but also embraced and maintained the erroneous reasoning before the appellate court.
  • The Court of Criminal Appeal drew a distinction between a party who is incidentally affected by a Crown appeal and one whose forensic conduct encouraged the very error the appeal was brought to correct.
  • Under ss 116 and 165 of the Evidence Act 1995 (NSW), specific mechanisms exist for directing juries about identification evidence; a party seeking to exclude such evidence on unfair prejudice grounds must articulate why those directions would be insufficient.
  • Concurrently defending a trial while meeting a s 5F Crown appeal does not, without more, support the grant of a Suitors' Fund certificate.
  • In exercising the discretion under s 6(1) of the Suitors' Fund Act 1951 (NSW), the court considers not just whether the respondent formally caused the appeal but whether their conduct contributed to the circumstances that made it necessary.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 116, 137, 165
- Suitors' Fund Act 1951 (NSW), s 6

Cases:
- R v Raymundo [2025] NSWCCA 109 (the Principal Judgment)
- Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66