R v CS; R v CL

1. [1]

   PRICE AJA: I have had the benefit of reading in draft the judgment of Cavanagh J, with whom Yehia J has agreed. I am grateful for his Honour’s review of the proceedings before the primary judge including her Honour’s decision, the relevant factual background and arguments of the parties advanced in this Court. I will refrain from unnecessary repetition of that material.

2. [2]

   I have the misfortune to disagree with their Honours. As I am in the minority and the parties are awaiting the outcome of the Crown’s appeal (the commencement date of the trial being 26 May 2025) my reasons will be stated relatively briefly.

3. [3]

   The Crown appeals against the decision of the primary judge pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW). Section 5F(3A) of the Criminal Appeal Act provides as follows:

4. [4]

   The Crown submits the primary judge erred in her Honour’s decision that the evidence in relation to counts 3 and 4 and other uncharged acts was inadmissible in respect of counts 1 and 2. The Crown contends that her Honour’s ruling substantially weakens the Crown’s case against CS and CL (“the respondents”) who are jointly charged with the murder of Michael Kerr (“the deceased”) contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and armed robbery, with wounding of the deceased at Nowra contrary to s 98 of the Crimes Act on 4 January 2022. Both the respondents contend that is not so.

5. [5]

   It is common ground that the Crown bears the onus of establishing the jurisdictional threshold that exclusion of the evidence substantially weakens the Crown case. Should the Crown fail to discharge that onus, the appeal pursuant to s 5F(3A) of the Criminal Appeal Act must be dismissed as this Court does not have jurisdiction.

6. [6]

   The respondents contend that this Court should consider the issue of whether the jurisdiction of the Court is engaged first, before considering the merits of the primary judge’s ruling. After conducting a review of this Court’s judgments in respect of s 5F(3A) appeals, the Crown observed that there was no uniform approach and did not seek to fetter the Court’s approach in respect of the point at which the jurisdictional issue is addressed.

7. [7]

   In my view, there is little utility in this debate. Although this Court is not concerned with the weight of the Crown’s evidence, the jurisdictional issue is to be determined on the evidence which is otherwise admissible. The jurisdictional issue and the merits of the primary judge’s ruling are conveniently dealt with together.

8. [8]

   The correctness standard of appellate review applies: Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [14] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ) (“Moore”).

The s 5F(3A) test

1. [9]

   As explained by Spigelman CJ in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [39] (Simpson and Adams JJ agreeing) (“Shamouil”):

2. [10]

   In determining whether or not a ruling excluding the Crown’s evidence “substantially weakens” the Crown case, the question this Court must ask itself is “… whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury”: Shamouil at [40].

3. [11]

   The Crown’s contention is that the exclusion of the evidence in relation to counts 3 and 4 and the evidence in relation to the uncharged acts, considered as a whole, substantially weakens the Crown case.

4. [12]

   As Mason ACJ (with whom Tobias JA and Howie J agreed) stated in R v Lameri; R v Cohen [2004] NSWCCA 217 at [36], this Court should consider the “totality of the Crown case” and the “extent and nature of the wrongfully excluded evidence” when determining whether the exclusion of the evidence substantially weakens the Crown case (see also Shamouil at [29]).

The Crown Case

1. [13]

   In Cavanagh J’s reasons at [49]-[69] below, his Honour provides a summary of the Crown’s case which I will not repeat. I will endeavour to provide a timeline which sets out in chronological order the key points of the Crown case below:

2. [14]

   It is the Crown case that Mr Edwards, CL and CS were parties to a joint criminal enterprise to rob the deceased while armed with a knife. The Crown Case Statement (“CCS”) at par 60, identifies that all three had knowledge of the knife and includes the following:

Consideration

1. [15]

   The arguments before the primary judge and in this Court concerning the admissibility of the evidence in respect of counts 3 and 4 and the uncharged acts have principally been directed to the principles stated in O’Leary v The King (1946) 73 CLR 566; [1946] HCA 44 (“O’Leary”). Evidence of conduct that forms part of a relevant transaction (“transaction evidence”) will itself be relevant because “without [evidence of such conduct] the transaction of which the [fact in issue] formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event”: O’Leary at 577 (Dixon J); R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304 at [116] (McColl JA, Studdert and Howie JJ agreeing) (“Mostyn”).

2. [16]

   As Latham CJ explained in O’Leary at 575, citing Dixon J in Martin v Osborne (1936) 55 CLR 367 at 375; [1936] HCA 23 (“Martin v Osborne”):

3. [17]

   In Martin v Osborne, Dixon J (with whom Latham CJ agreed) explained the approach to circumstantial evidence and relevantly observed at 375:

4. [18]

   The O’Leary principle has been applied to evidence of the state of mind. In Mostyn, the appellant was convicted of maliciously inflicting grievous bodily harm on his wife. At trial, evidence had been admitted of the appellant’s conduct when police arrived at the appellant’s home after the assault had been committed. The appellant had pointed a rifle at police and threatened the police to “back off or I’ll kill you”: Mostyn at [29]. On appeal, the appellant complained that this evidence should not have been admitted. McColl JA (with whom Studdert and Howie JJ agreed) concluded at [134]-[135]:

5. [19]

   In Samadi and Djait v R [2008] NSWCCA 330; (2008) 192 A Crim R 251, counts 1, 2 and 3 charged the appellants with administering a stupefying drug to three separate complainants with the intention of stealing property contrary to s 38 of the Crimes Act. These offences were allegedly committed at a bar in Darling Harbour around 8:30pm. Count 4 concerned the administration of a stupefying drug at a separate complainant’s apartment by the appellants who stole a quantity of property from the complainant whilst he was unconscious. The appellants’ complaint was that the trial judge had erred in admitting the evidence of the events in count 4 (“incident 2”) upon the trial of counts 1-3 (“incident 1”). It was submitted by the appellants that this was not a case where the approach permitted by the O’Leary principle applied. In rejecting the appellants’ argument, Beazley JA (with whom Hislop and Price JJ agreed) said at [63]:

6. [20]

   In Ratten v The Queen [1972] AC 378, Lord Wilberforce when referring to O’Leary observed at 388:

7. [21]

   In the present case, the primary judge rejected the Crown’s argument founded on the O’Leary principle. Her Honour determined that evidence of the respondents’ conduct before they came upon the deceased was “not probative of any element of the fact in issue in respect of counts one and two”: PJ, p 12. Her Honour said that this evidence was “… simply evidence that [the respondents] may have committed other crimes, from which a jury may improperly reason that therefore they committed the offences charged in counts one and two”: PJ, p 12. I respectfully disagree with her Honour.

8. [22]

   The Crown must establish in each of the three ways (see [14] above) that the Crown brings its case for murder against the respondents, the existence of a joint criminal enterprise and the participation by each of the respondents in it. An essential ingredient which the Crown must prove is possession and knowledge of the knife by the respondents when they alighted from the vehicle and the use of it in causing the deceased’s death pursuant to the joint criminal enterprise. The facts admitted by the respondents pursuant to s 184 of the Evidence Act 1995 (NSW) emphasise that the essential elements of the crimes of murder and armed robbery with wounding the Crown must prove beyond reasonable doubt remain in dispute.

9. [23]

   Section 55(1) of the Evidence Act provides:

10. [24]

    Mr Edwards’ evidence of the conversations with the respondents in the vehicle and their conduct after he was picked up some time before 2:58am; the evidence of Witness 2 and Mr Edwards of the events that unfolded at the Mobil Service Station around 4:03am, could rationally affect the assessment of the probability of a fact in issue, namely the formation and existence of a joint criminal enterprise to rob the deceased with a knife and the respondents participation in carrying out that joint criminal enterprise. The evidence is also relevant to a fact in issue that when the respondents alighted from the vehicle to attack the deceased around 4:11am, one of the respondents was in possession of the knife and the other respondent knew that his co-offender had the knife in his possession. Furthermore, it is evidence relevant to a fact in issue that the respondents contemplated or foresaw the probability that the knife might be used in carrying out the joint criminal enterprise. The evidence is also relevant to rebut self-defence should that be raised during the trial.

11. [25]

    Moreover, the respondents’ state of mind at the Mobil Service Station which was “to use the knife to rob the servo” is relevant to explain and prove the state of mind of the respondents when they alighted from the vehicle around 4:11am. The failure to rob the Mobil Service Station is also relevant to show the motive for the murder was to rob the deceased.

12. [26]

    All of the events were in close temporal proximity (the attempted robbery around 8 minutes before) to the attack upon the deceased. The evidence in counts 3 and 4 and the uncharged acts explains and makes intelligible the respondents’ conduct towards the deceased. Otherwise, it would simply be an unexplained spontaneous event, neither carried out pursuant to the common intention of the respondents nor within their contemplation or foreseeability. Viewing the Crown case as a whole, the excluded evidence has high probative value.

13. [27]

    In my opinion, the evidence falls within the principles stated in O’Leary. The probative value of the evidence is not outweighed by the danger of unfair prejudice to the respondents: s 137 of the Evidence Act.

14. [28]

    The primary judge’s ruling deprives the Crown of important evidence relevant to the proof of the facts in issue. The Crown has established the jurisdictional threshold that the exclusion of the evidence substantially weakens the Crown case. I would allow the Crown’s appeal pursuant to s 5F(3A) of the Criminal Appeal Act and set aside the primary judge’s ruling that the evidence in counts 3 and 4 and the uncharged acts is inadmissible and in lieu thereof order that evidence is admissible in respect of counts 1 and 2.

The s 5F(2) appeal

1. [29]

   The Crown’s appeal under s 5F(2) of the Criminal Appeal Act is as follows:

2. [30]

   The primary judge was “of the opinion that if the trial of CS and CL proceeds on all four offences charged together they will be prejudiced in their defence of the charges”. Her Honour determined that “[t]o ensure a fair trial counts one and two on the indictment should be tried separately from counts three and four”: PJ, p 13.

3. [31]

   Her Honour had earlier said at PJ, pp 11-12:

4. [32]

   As the primary judge’s decision is a “discretionary decision” the House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, standard of appellate review applies.

5. [33]

   In my respectful opinion, the primary judge acted upon the wrong principle by determining that the evidence of the respondents’ conduct before they came upon the deceased was not probative of any fact in issue in respect of counts 1 and 2. Furthermore, her Honour failed to properly consider the probative value of the evidence and undertake the balancing exercise under s 137 of the Evidence Act. Her Honour’s characterisation of the impact on the jury being “a sense of horror” or “instinct to punish the [respondents]” is an overstatement. The excluded evidence is unlikely to provoke such an emotional response from the members of the jury; distract them from their task or use the evidence in an improper way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]-[97] (McHugh J); Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [22] (Gleeson CJ), [51] (McHugh J).

6. [34]

   The Crown’s appeal under s 5F(2) of the Criminal Appeal Act should be allowed. The primary judge’s decision that counts 1 and 2 should be tried separately to counts 3 and 4 should be set aside.

7. [35]

   CAVANAGH J: This is a Crown appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW).

8. [36]

   The respondents, both juveniles at the time of the alleged offending, were due to stand trial before a jury commencing on 26 May 2025, each in respect of four offences being:

9. [37]

   All of the offences are alleged to have been committed by the respondents over a number of hours during the night of 3 to 4 January 2022. Each of the offences is alleged to have been committed jointly by the respondents.

10. [38]

    The conduct comprising counts 3 and 4 occurred at different times and places to the conduct comprising counts 1 and 2, albeit all the conduct occurred over a number of hours during the same night.

11. [39]

    On 12 December 2024, CS filed a motion seeking orders that counts 3 and 4 be tried separately from counts 1 and 2 in accordance with the Criminal Procedure Act 1986 (NSW), ss 21(2) and 29(3).

12. [40]

    The motion came on for hearing before Sweeney J (the primary judge, however her Honour is not the trial judge) initially on 4 February 2025 and then on 20 February 2025. As set out in her Honour's ex tempore judgment of 20 February 2025, her Honour ordered that there should be a joint trial on counts 1 and 2 and a separate joint trial of the respondents on counts 3 and 4 (the severance decision).

13. [41]

    By an amended grounds of appeal dated 1 April 2025 (which the Court granted leave to file), the Crown appeals from that decision pursuant to s 5F(2) of the Criminal Appeal Act on the ground that that decision was unreasonable or plainly unjust.

14. [42]

    Underpinning her Honour’s decision was her Honour’s assessment that the evidence in relation to counts 3 and 4 would not be admissible as evidence on counts 1 and 2 as CS and CL would be unfairly prejudiced in their defence if that evidence was admitted. On one view, the only decision from which an appeal might lie is the severance decision, but the parties have accepted that her Honour’s assessment of the admissibility of the counts 3 and 4 (and uncharged acts) evidence is a ruling from which the Crown must also appeal if it wishes to lead such evidence on the trial.

15. [43]

    As such, the Crown also appeals pursuant to s 5F(3A) of the Criminal Appeal Act from the decision to exclude the evidence of counts 3 and 4 and the uncharged acts in the trial for counts 1 and 2. As the Crown submits, central to the appeal is the admissibility of the evidence having regard to the way in which the Crown intends to use the evidence.

16. [44]

    The parties provided extensive written submissions. The submissions of CS and CL were somewhat similar. During the hearing, counsel for CL adopted the further oral submissions of counsel for CS. After the hearing the parties provided further submissions on the jurisdictional question arising under s 5F(3A).

17. [45]

    There are non-publication and suppression orders in place. I will refer to the respondents by the pseudonyms that have been adopted for the purposes of the trial.

Background to the Appeal

1. [46]

   The circumstances of the alleged offending from the Crown perspective and the evidence on which the Crown intends to rely is set out in the Crown Case Statement which formed the basis of her Honour’s consideration of the issues arising on the motion.

2. [47]

   In the submissions of all parties, both in this Court and before the primary judge, there is reference to the limited nature of the issues. Agreed facts were provided to this Court after the conclusion of the hearing. It is important to observe that the agreed facts merely formalised that which has already been submitted as to the facts in issue and the limited nature of the issues. As this Court is assessing the correctness of the original decision, it does so on the same evidence as was before the primary judge.

3. [48]

   That evidence includes statements of a number of witnesses, CCTV footage, an autopsy report, an ERISP interview, a statement of agreed facts and the sentence judgment in relation to a person said to be a co-offender in respect of some of the charges, Mr Edwards (see R v Edwards (Supreme Court (NSW), Rigg J, 4 February 2025, unrep)).

4. [49]

   The circumstances of the offending, on the Crown case, may be summarised as follows.

5. [50]

   In January 2022, Mr Edwards who was then 21 years of age, was in a relationship with a person known as “witness 1”. He sometimes stayed at a home in Warilla. During the afternoon of 3 January 2022, Mr Edwards and witness 1 had an argument and Mr Edwards left the vicinity of the home. As he was walking along a street, he came across CS and CL. Although he had not previously met CL, he knew CS from primary school. They all went to a park together.

6. [51]

   Sometime later they parted ways, with Mr Edwards intending to sleep in a vehicle that night. CS and CL then visited other people at another address in Warilla.

7. [52]

   At around 10:00pm that evening, CS and CL left those premises on foot. They were accompanied by witness 2, who was the then girlfriend of CS. They all walked to a street corner in the vicinity of a house in Barrack Point. At the time, the resident of that house, Ms Coleman, had the use of a white Mitsubishi ASX which belonged to her brother. Although the white Mitsubishi was not visible from the street, CS and Ms Coleman knew each other and CS knew of her connection to the white Mitsubishi.

8. [53]

   Around 10:30pm on 3 January 2022, Ms Coleman checked that her premises and vehicle were locked. She woke the next morning around 7:30am to find that the back door was open, and the Mitsubishi was missing, as were the keys which had been inside her unit when she went to bed. It is the Crown case that CS and CL stole the vehicle.

9. [54]

   It is the Crown case that CL and CS were parties to a joint criminal enterprise to break and enter the premises and commit a serious indictable offence (stealing), knowing persons were there (count 3). It is alleged that one or both opened the front or back door and entered the unit before stealing the keys to the Mitsubishi and taking the vehicle without the consent of the owner.

10. [55]

    Sometime after stealing the vehicle, CS and CL picked up witness 2 and they all drove to where Mr Edwards was asleep in his vehicle in Shellharbour. It is not known when they picked up Mr Edwards, but it was sometime after 10:30pm and before 2:05am. All four persons being CS, CL, Mr Edwards and witness 2 then travelled to several different areas in the white Mitsubishi. There is CCTV footage showing CS refuelling the vehicle and returning to the front passenger seat. The footage shows CL in the driver’s seat.

11. [56]

    There is CCTV footage of the vehicle in various places over the period of 2:15am to 3:25am. At 3:57am, the white Mitsubishi was again captured on CCTV footage outside the Marriott Park Motel. The footage shows CS and CL leaving the vehicle and walking towards the motel carpark. Mr Edwards and witness 2 remained in the vehicle.

12. [57]

    The Crown alleges that both respondents attempted to gain access to unattended vehicles in the carpark. On the Crown case, CS and CL went to the Marriott Park Motel carpark because they wanted to see if cars were unlocked and steal from them. They then returned to the white Mitsubishi at 3:59am.

13. [58]

    It is this conduct which constitutes the uncharged acts.

14. [59]

    After this, the four persons drove around Nowra in the white Mitsubishi for some time. According to Mr Edwards, they discussed committing a robbery on a service station. By this time Mr Edwards was driving. At 4:02am, CS and CL were captured on CCTV walking along Stuart Street, Nowra into a Mobil service station. Both respondents are said to have had the hoods of their jumpers pulled up and both wore face masks. They walked to the front of the service station and pressed the button. They stood there for a short time before returning to the white Mitsubishi. Again, according to Mr Edwards, although they intended to rob the service station, they did not do so because they saw a sign that said there was only $100.00 cash held on the premises.

15. [60]

    It is the Crown case that there existed between Mr Edwards, CS and CL a joint criminal enterprise to rob the service station in company with another, armed with a knife and that they, by their actions, attempted to do so. This conduct constitutes count 4.

16. [61]

    According to the Crown, both Mr Edwards and witness 2 will give evidence as to the presence of a knife in the possession of the respondents at the time of the commission of count 4 and of the respondents’ intention to use it in the commission or attempted commission of the offence. Whether this evidence will emerge appears to be very much in contention.

17. [62]

    Mr Edwards told the police that CS and CL wanted to rob the Mobil service station. The Crown says admissions were made to this effect in a lawfully recorded conversation between CS and CL on 24 January 2023.

18. [63]

    Within 10 minutes of leaving the service station and with Mr Edwards driving, they came across the deceased (that is, shortly after 4:10am) as he walked along Worrigee Street in Nowra. There is CCTV footage showing the white Mitsubishi stop in the area where the deceased was last seen.

19. [64]

    They had driven past him but doubled back towards him and stopped near him. According to witness 2, after they stopped, CS and CL got out of the vehicle and approached the man. Witness 2 observed what looked like a fight. It looked like CS and CL were bashing the man, although she was unable to see who was doing what. CS and CL returned to the white Mitsubishi with $30.00 and the man’s phone. Witness 2 observed the man stumble. She says that he was not walking normally.

20. [65]

    Mr Edwards says that, although he was driving, he was forced to turn the car around and stop near the deceased because CL, who was sitting behind him, was holding a knife to his leg. Mr Edwards says he was told to pull up. CS and CL said words to the effect that they were going to rob the man.

21. [66]

    At 4:15am a passing motorist discovered the deceased lying face down on the roadway. Although he was treated and then conveyed to hospital, he died with the cause of death being a single penetrating stab wound to his upper left back.

22. [67]

    It is the Crown case that CL is liable for the murder of the deceased because he is directly responsible for inflicting the fatal stab wound with murderous intent or because he was a party to a joint criminal enterprise or an extended joint criminal enterprise with CS and Mr Edwards.

23. [68]

    Similarly, CS is said to be liable for the murder either because he is directly responsible for inflicting the fatal stab wound or because he was a party to a joint criminal enterprise or an extended joint criminal enterprise with CL and Mr Edwards.

24. [69]

    The Crown also relies on the principles of constructive murder with the foundational offence relied upon being robbery whilst armed with wounding (Crimes Act, s 98).

The Primary Judge’s decision

1. [70]

   The primary judge accepted that, if the jury heard evidence in relation to counts 3 and 4 or the uncharged acts, there would be irreparable prejudice in the defence of counts 1 and 2. Her Honour considered that in those circumstances the trial in relation to those counts 1 and 2 would be unfair.

2. [71]

   Her Honour observed that the way in which the Crown characterised its case against the respondents, that is they were out on a mission to rob and steal, contained the very prejudice which the respondents apprehended.

3. [72]

   Her Honour said:

4. [73]

   Her Honour rejected the Crown’s submission that all of the offences should be considered as one transaction. Her Honour did not consider that the evidence in relation to counts 3 and 4 or the uncharged acts was probative of any element of the offence or facts in issue in respect of counts 1 and 2. Rather, her Honour found that the evidence was only unfairly prejudicial.

5. [74]

   Her Honour did not accept that it was necessary for a jury to hear evidence of the alleged prior conduct to understand the conduct the subject of counts 1 and 2.

6. [75]

   Further, her Honour accepted that the evidence in relation to counts 1 and 2 and counts 3 and 4 would largely be given by different witnesses, except that Mr Edwards and witness 2 may be required to give evidence twice if the counts are severed.

7. [76]

   In all these circumstances, her Honour concluded that, if the trial of the respondents proceeds on all four counts together, they will be prejudiced in the defence of the charges. To ensure a fair trial, counts 1 and 2 on the indictment should be tried separately from counts 3 and 4.

The admissibility ruling

1. [77]

   The appeal is brought pursuant to s 5F(3A) which is in the following terms:

2. [78]

   The standard of appellate review is the correctness standard. This Court is required to consider the evidence before the primary judge and form its own view whether the decision of the judge was correct. The approach and its differences with the House v The King (1936) 55 CLR 499; [1936] HCA 40 approach were recently summarised by the High Court in Moore (a pseudonym) v The King [2024] HCA 30 at [14] as follows (footnotes omitted):

3. [79]

   The Crown does not require leave to appeal but may only appeal if the decision eliminates or substantially weakens the Crown case.

4. [80]

   “Substantially weakens” are words of ordinary meaning. It is not appropriate to put a gloss on those words, but it would not be sufficient for the Crown to establish that the exclusion of the evidence merely weakened the Crown case. “Substantially” must be given meaning. The words must be read in the context in which they appear in the statute and having regard to their statutory purpose.

5. [81]

   It follows that, whilst “or” is used in the sense of being an alternative (and meaning something less than “eliminates”), the Crown must establish that the effect of the ruling is of substantial significance to the Crown case. An evidentiary ruling may weaken a Crown case, but no appeal will lie unless it weakens the case substantially.

6. [82]

   There is an issue between the parties as to whether this Court is required to determine the jurisdictional issue (that is, whether the decision or ruling eliminates or substantially weakens the Crown case) prior to considering the correctness of the original decision.

7. [83]

   In R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 (“Shamouil”), Spigelman CJ observed:

8. [84]

   In most cases it may be necessary to examine the evidence and consider the way in which the Crown puts its case in order to determine whether the decision to exclude certain evidence eliminates or substantially weakens the Crown case. However, that does not mean that it would be necessary to determine whether the decision of the primary judge to exclude the evidence was correct prior to determining whether the exclusion of the evidence eliminates or substantially weakens the Crown case.

9. [85]

   In determining whether the exclusion of the evidence eliminates or substantially weakens the Crown case, this Court is not undertaking an assessment of the weight of the evidence or even considering whether the admission of the evidence would unfairly prejudice the defence. The Court is not engaged in weighing up the probative value of the evidence as against the prejudice to the accused.

10. [86]

    The Court takes the evidence at its highest for the Crown and then assesses whether the exclusion of such evidence would eliminate or substantially weaken the Crown case. The Court does not undertake an assessment of weight or the extent to which evidence might impact on the reliability or credibility of a witness (R v Chase [2018] NSWCCA 71, per Basten JA (Johnson and Campbell JJ agreeing) at [5]-[6]).

11. [87]

    Having said that, the Court does not merely adopt the Crown approach to the evidence. The Court does not merely accept that the evidence would be important to the Crown case. If this were so, the Crown would bear little by way of evidentiary onus. As was said in Shamouil (at [40]), the Court asks what would be the effect of the evidence, assuming the jury accepted it, and provided that the evidence would be fit to be left to the jury. That requires an assessment of the basis on which the Crown proposes to put the evidence before the jury.

12. [88]

    It is only necessary to say that, without a finding that the exclusion of the evidence eliminates or substantially weakens the Crown case, this Court does not have jurisdiction to determine an appeal under s 5F(3A). How the Court goes about making that assessment will depend on the facts and circumstances of each case.

13. [89]

    There may be overlap (as in this case) in the consideration of whether the ruling substantially weakens the Crown case and in assessing the correctness of the decision.

The matters in dispute

1. [90]

   In determining both the jurisdictional question and, if it arises, the correctness of the decision, regard must be had not only to the way the Crown puts its case and the evidence it seeks to adduce but also the extent of the facts and issues in dispute.

2. [91]

   The issues in respect of counts 1 and 2 are somewhat limited. Specifically, the respondents do not dispute that:

3. [92]

   The issues in respect of counts 1 and 2 are:

The Crown submissions

1. [93]

   The Crown submitted before the primary judge and in this Court that the evidence relating to counts 3 and 4 and the uncharged acts is admissible, both because the evidence forms part of an integral part of a connected series of events and because it was sufficiently proximate to counts 1 and 2 so as to be capable of being evidence of a continuing state of mind. In these circumstances the trials should not be severed. The evidence is admissible. Its exclusion substantially weakens the Crown case.

2. [94]

   Further, the evidence in respect of count 4 is said to be admissible as being capable of bearing on the knowledge of CS and CL of the knife. This latter submission appears to be inconsistent with the submission made before Sweeney J by a different Crown Prosecutor (although this was not accepted on appeal) who said that the evidence as to the existence or possession of a knife in relation to count 4 was immaterial to counts 1 and 2.

3. [95]

   On appeal, the Crown emphasised that proof of a shared intention to rob whilst armed with a knife 10 minutes before the events which led to counts 1 and 2 bears upon the question of whether at the time that the respondents confronted the deceased, they continued to have that shared intention to rob whilst armed with a knife.

4. [96]

   The Crown submits that evidence of a continuing state of mind or of a connected series of events is admissible and is not characterised as tendency evidence, referring in particular to the observations of the High Court in O’Leary v The King (1946) 73 CLR 566; [1946] HCA 44 (“O’Leary”) and of this Court in R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 (“Adam”).

5. [97]

   The Crown submits that the proper approach to the assessment of the admissibility of evidence is not to look at the evidence in a vacuum but to assess its relevance and probative value in the context of other evidence. Some evidence may be capable of directly or indirectly affecting the probability of a fact in issue without directly bearing on the fact in issue. Evidence relating to counts 3 and 4 is said to go to a fundamental aspect of the robbery of the deceased being the stealing.

6. [98]

   The Crown says that the credibility of both Mr Edwards and witness 2 will be in issue. On the Crown case the excluded evidence may shed some light on the credibility of these witnesses, such that, even on that view, its exclusion may substantially weaken the Prosecution case.

7. [99]

   Finally, the Crown maintains that this Court must look at all of the excluded evidence as a whole in order to assess whether its absence substantially weakens the Crown case. That is, the excluded evidence must be considered as a whole rather than as separate aspects of the evidence which the Crown seeks to adduce. This is fundamental to the Crown case on appeal.

The respondents’ submissions

1. [100]

   The respondents submit that the excluded evidence taken as a whole would not be admissible either as part of a series of connected events or to establish a continuing state of mind on the part of the respondents, questioning the relevance of such evidence to the limited issues arising in respect of counts 1 and 2.

2. [101]

   The facts and circumstances of this matter are said to be quite different from those in both O’Leary and Adam.

3. [102]

   The respondents submit that, contrary to the Crown submissions, the excluded evidence could not be used to support the credibility and reliability of Mr Edwards and witness 2. Mr Edwards was not present at the time of count 3 or the uncharged acts and Mr Edwards does not say that he saw either of the respondents with a knife when they left the car at the service station.

4. [103]

   Further, the evidence of witness 2 does not assist the Crown case on any of the issues in dispute on counts 1 and 2. The respondents also dispute the Crown’s submission that there will be a robust challenge to the evidence of witness 2.

Determination

1. [104]

   Whether determining the jurisdictional issue or the correctness of the decision, it is necessary to consider how and why the excluded evidence would be relevant having regard to the facts in issue. The test of relevance is whether it could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue. As I have already said, the principal submission put by the Crown is that the evidence of each of the earlier events is relevant to establishing a continuing state of mind and the existence of an interconnected series of events leading to the murder of the deceased, that is to explain the conduct of the respondents.

2. [105]

   On the Crown case (adopting the language in O’Leary), the admission of the earlier conduct will allow the jury to understand the events as they occurred and to make sense of the overall transaction, from commencement (breaking into the house) to the murder of the deceased. Admission of the evidence will establish a continuing state of mind throughout the transaction.

3. [106]

   In O’Leary, persons at an isolated timber camp including the accused took part in a drunken orgy which continued late into the night. At about midnight, the deceased died in his cubicle. He was found early the next morning. He had been struck on the head eight or nine times with a bottle. Kerosene had been poured on him and his clothes had been set on fire.

4. [107]

   The accused was found guilty of his murder. At trial, evidence was admitted that the accused had at various times during the evening violently assaulted other persons there. The Court found that the evidence of the violent attacks by the accused during the evening was admissible on the basis that (per Latham CJ at [575], [576]) admission of the evidence allowed the jury to have a real appreciation of the events of the day and night, accepting that the acts constituting the earlier violence formed part of the inseparable features of the overall transaction consisting of the events.

5. [108]

   A similar approach was taken by Dixon J (as his Honour then was) when observing at 577:

6. [109]

   Alternatively in support of its contention that the earlier events can be relied on as evidence of a continuing state of mind, the Crown relied on Adam in which the Court (per Spigelman CJ, James and Bell JJ) observed:

7. [110]

   The Crown disavows any use of the excluded evidence as tendency evidence but says that it is admissible on the basis set out in O’Leary and Adam.

8. [111]

   Whist the Crown urges this Court to assess the evidence as a whole, that approach does not assist the Crown. That is because the Crown has not identified to what fact still in issue the evidence might relate.

9. [112]

   Certainly, on the Crown case, the respondents broke into a house and stole a car some hours earlier, but the offences with which the respondents have been charged under counts 1 and 2 are murder and robbery armed with a weapon. Establishing that the respondents had a certain state of mind some time earlier (that is, an intention to steal) is not probative of the state of mind immediately before and during the commission of counts 1 and 2.

10. [113]

    It is not in dispute that they were in the car when it stopped near the deceased or that there was a knife in the car when they stopped. It is not in dispute that they were present at the scene when the deceased was stabbed and that they left the area immediately thereafter. There is no suggestion that either respondent was armed during the commission of the acts giving rise to count 3 or the uncharged acts. Further, the Crown case is that the agreement which forms the foundation for the joint criminal enterprise was only entered into when the respondents saw the deceased. Establishing that the respondents engaged in certain conduct prior to the commission of the offences under counts 1 and 2 is not probative of whether the respondents entered into an agreement of the type set out in the Crown Case Statement in respect of counts 1 and 2, unless of course it is adduced as tendency evidence.

11. [114]

    I am unable to accept that establishing that they broke into a house some hours earlier would assist the jury in understanding and assessing whether and when they formed an intention to harm the deceased or whether they both or either had knowledge of a knife outside the car or whether something happened which might give rise to defence of self-defence.

12. [115]

    It is difficult to accept that the respondents’ state of mind some hours earlier could be of any probative value in proving the elements of counts 1 and 2, having regard to the remaining facts in issue. It is not suggested that the events leading to the death of the deceased involved any element of planning or even that there was some discussion about looking for a person to rob before these events.

13. [116]

    The circumstances of this matter did not involve a course of violent conduct leading to the death of the deceased (as in O'Leary). Nor do they involve any earlier conduct directed towards the deceased or even any other person. It is not suggested on the Crown case that either CS or CL formed the murderous intent in respect of the deceased at any time before they saw him. Similarly, it is not suggested that CS and CL entered into an agreement which forms the foundation for the joint criminal enterprise at any time before they saw the deceased.

14. [117]

    The earlier events do not form part of the one transaction. It is not necessary for the jury to know that they had earlier broken into a house or attempted to rob a service station to understand that they were attempting to rob the deceased with a knife. The murder of the deceased is not the final act in an interconnected series of earlier events. In my view the Crown’s reliance on the principles set out in O’Leary and Adam is misplaced.

15. [118]

    Further, even taking a different approach to that advocated by the Crown and considering whether the exclusion of the evidence relating only to count 4 substantially weakens the Crown case, it is far from clear how evidence of an earlier attempt to rob a service station (with or without a knife) could bear upon any fact remaining in issue in respect to counts 1 and 2, again unless it is being relied on as tendency evidence (which it is not).

16. [119]

    In all these circumstances, in my view, the earlier events are not relevant to any fact remaining in issue. They could only be relevant as tendency evidence which the Crown disavows.

17. [120]

    In the end, I agree with the primary judge’s assessment of the evidence. Taken as a whole it is not probative of any fact in issue. It is only prejudicial.

18. [121]

    The exclusion of evidence which is not probative of any fact in issue in relation to counts 1 and 2 could not be said to substantially weaken the Prosecution case.

19. [122]

    In those circumstances the Court does not have jurisdiction to determine an appeal from the admissibility ruling.

20. [123]

    In any event as will be apparent from these reasons, even if jurisdiction was established (that is if it had some probative value), I see no error in the approach of the primary judge. Her Honour’s assessment of prejudice to the respondents arising from the presentation of the evidence in respect to counts 3 and 4 and the uncharged acts was such as to lead to an unfair trial was plainly correct. No direction to the jury could overcome the risk of the jury misusing the evidence, that is as supporting the prejudicial idea that they were on a crime spree and as demonstrating a tendency to rob and steal. The risk of prejudice to the defendant outweighs the probative value which might be given to the evidence.

The severance decision

1. [124]

   The Crown did not concede that the outcome of the challenge to the admissibility ruling would necessarily determine the outcome of the s 5F(2) appeal but in my view it does. Whilst regard must be had to the possibility of strong directions being given to the jury in respect of the use of such evidence in determining the verdicts on counts 1 and 2, I doubt that there are any directions which could protect against the danger of the jury misusing the evidence.

2. [125]

   The Crown must establish that the severance decision was unreasonable or unjust. In circumstances in which the evidence relevant to counts 3 and 4 is not admissible in respect of counts 1 and 2, the presentation of such evidence during the same trial would clearly be unfair to the respondents. Nothing in this judgment affects the way in which the Crown might present its case on a separate trial.

3. [126]

   In these circumstances the Crown has not established that the decision was unreasonable or plainly unjust.

4. [127]

   I propose that the appeal be dismissed.

5. [128]

   YEHIA J: I have had the considerable advantage of reading the judgment of Cavanagh J in draft. I agree with his Honour’s proposed order and with his Honour’s reasons. Like his Honour, I am of the view that the Crown’s reliance on the principle set out in O’Leary v The King (1946) 73 CLR 566; [1946] HCA 44 and R v Adam (1999) 106 A Crim R 510; [1999] NSWCCA 189 is misplaced. The evidence constituting counts 3 and 4 and the uncharged acts, is not “transaction evidence”. I do not accept that without that evidence, “the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event”: O’Leary v The King at 377.

6. [129]

   The Crown has disavowed any reliance upon the evidence as tendency evidence. I am of the view that the evidence is not admissible, and, in these circumstances, the Crown has not established that the severance decision was unreasonable or plainly unjust.