R v Raymundo

Catchwords: CRIMINAL PROCEDURE — Evidence Act 1995 (NSW), s 137 — Where trial judge excluded recognition evidence — Where evidence had high probative value — Whether respondent would have to adduce unfairly prejudicial evidence to challenge recognition evidence — Whether directions to the jury would be sufficient to cure prejudice — Appeal allowed

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

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

Category: Principal judgment

Parties: Rex (Appellant)
Christian Raymundo (Respondent)

Representation: Counsel:
Cecilia Curtis (Appellant)
Michael Valentin (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Cruz & Partners Lawyers (Respondent)

File Number(s): 2024/204662

Publication restriction: Nil.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 7 July 2025, Wass SC DCJ delivered an ex tempore judgment excluding, pursuant to s 137 of the Evidence Act 1995 (NSW), recognition evidence proposed to be given by the complainant at the trial of the respondent on an indictment charging him, together with a co-accused, with a single count of robbery in company. Section 137 provides: “In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

Her Honour accepted that the recognition evidence was strongly probative of the Crown case, but considered that that was outweighed by the danger of unfair prejudice, which could not be cured by judicial direction. Her Honour considered that there was a real possibility that the complainant had been primed to identify the respondent because of a pre-existing assumption that the respondent was involved in seeking to recover a debt. The danger of unfair prejudice was that, in order to challenge the recognition evidence on that basis, the respondent would have to introduce evidence about those matters, including that the respondent had transferred money to the complainant, and that the jury would use the evidence as evidence of motive on the part of the respondent, where there was otherwise none on the Crown’s case.

The Director of Public Prosecutions appealed pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW).

The Court (Stern JA, McHugh JA and Garling J) held, allowing the appeal:

(1) The probative value of the recognition evidence was high: [23].

(2) There were several ways the respondent could challenge the recognition evidence without introducing the evidence that was said to be unfairly prejudicial. Any risk of unfair prejudice arising from the admission of the recognition evidence would in any event be cured by appropriate directions: [29]-[32].

(3) The probative value of the recognition evidence outweighed any danger of unfair prejudice: [33].

(4) Discussion of principles regarding exclusion of evidence pursuant to s 137 of the Evidence Act: [22]-[27].

Moore (a pseudonym) v The King [2024] HCA 30; (2024) ALJR 1119; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, cited.

R v Cook [2004] NSWCCA 52, considered.

JUDGMENT

1. THE COURT: The Director of Public Prosecutions appealed pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) against a decision given ex tempore on 7 July 2025 by the trial judge, Wass SC DCJ (the Decision). The Decision excluded, pursuant to s 137 of the Evidence Act 1995 (NSW), certain recognition evidence proposed to be given by the complainant at the trial of the respondent, Mr Christian Raymundo, on an indictment charging him, together with a co-accused, Mr Bobby Antonakos, with a single count of robbery in company. That occurred in circumstances in which the trial judge had refused an application that the two accused be tried separately.

2. As the joint trial of both accused was proceeding before a jury, upon the conclusion of the hearing of the appeal on 11 July 2025, the Court made the following orders with reasons to follow.

3. Appeal allowed.

4. Set aside the decision of Wass SC DCJ given on 7 July 2025 excluding recognition evidence pursuant to s 137 of the Evidence Act 1995 (NSW).

5. In lieu thereof, dismiss paragraph 2 of the respondent’s notice of motion filed on 27 June 2025.

6. These are our reasons.

Background

4. The following matters of background to the application before the trial judge are relevant.

5. The application pursuant to s 137 was conducted by reference to evidence that it was expected the Crown would lead, including in the form of parts of two statements given by the complainant, Mr Michael Datu. Reference was also made to other parts of the complainant’s statements which the Crown did not propose to lead either at all, or against the respondent (unless the respondent asked it to do so). The material on the s 137 application also included a statement given by the complainant’s friend, Mr Anthony Penano. It is convenient to refer to all of that material as evidence, although none of it had been led, and some of it was not proposed to be led.

The relationship evidence

6. First, as to the complainant’s relationship with the respondent, he said in his first statement (dated 15 May 2024) that he first met the respondent in around 2016 when visiting Australia; that he moved to Australia from the Philippines in 2022; that he lived with the respondent and his wife for about three weeks when he moved to Australia in 2022; that he trained at a gym with the respondent; and (in his second statement, dated 14 November 2024) that his last contact with the respondent was around November 2022.

7. Secondly, the complainant stated that his relationship with the respondent had soured for various reasons. In the course of argument before the trial judge, the Crown Prosecutor informed her Honour that the Crown would not lead evidence of the context of the dissolution of the relationship, and instead would lead the evidence neutrally to the effect that contact had ceased in 2022.

The recognition evidence

8. In the complainant’s first statement, he said that, while riding his bike shortly after 7:30 pm on 15 May 2024, he was chased and attacked by the co-accused Mr Antonakos, who pulled the complainant to the ground. The complainant said that he saw two other people running towards him, and that Mr Antonakos began punching his head and face. The recognition evidence that her Honour excluded was contained in par 34 of the complainant’s first statement:

“Whilst [Mr Antonakos] was doing this I felt something to the back of my head and neck area that felt like someone else was kicking me. I looked backwards towards where I thought this person was and I immediately recognised it to be Christian Santino Raymundo [being the respondent].”

No motive

9. It was no part of the Crown case that there was any motive on the part of the respondent.

The evidence that the respondent had transferred money to the complainant

10. The Crown Prosecutor informed her Honour that the Crown would not lead the following evidence: the complainant said in his first statement that between 2016 and 2022 the respondent would transfer money to him when the complainant was in the Philippines. He expanded on this in his second statement, saying that in 2017 the respondent told him that he would pay for the complainant’s tourist visa to return to Australia. He said the respondent sent him various sums while he was in the Philippines: $2,000 in 2017; $500 in 2017; $500 or $1,000 in 2018; and about $1,000 in 2022. The complainant’s position was that these were not loans and that the respondent had never suggested otherwise.

The Instagram messages

11. The Crown case against the co-accused, Mr Antonakos, would include evidence that the alleged offending was preceded by direct messages on Instagram from a user account called “Bobby Antonakos” to the complainant, commencing on 24 April 2024. Those messages included the following:

“… as of today, I have bought your 3k debt off my brother who helped you approximately last November.

I’ll be fair and give you 14 days to transfer me the amount of 3k in full. On the 15th days onwards, I will visit Anthony’s house in Botany as I know where lives [sic], and yourself as you are easy to find. …”

12. (The reference to “Anthony” was apparently to the complainant’s friend Mr Penano.)

13. The Crown accepted before the trial judge that the evidence of those messages could not be admitted in the case against the respondent.

The “priming” evidence

14. It followed from the Crown’s position (that it would not lead evidence that the respondent had transferred money to the complainant) that the Crown would not lead the following evidence (which suggested that before the alleged offence, the complainant had already suspected that the respondent was involved in sending the Instagram messages):

15. The complainant’s friend, Mr Penano, said in a statement dated 15 May 2024 that the complainant had sent him a screenshot of a message in April 2024 about the complainant owing someone $3,000. Mr Penano said that when he asked the complainant what the message was about, the complainant told him “that around 4 years ago, [the respondent] had lent him some money for flights, but the money he owed was less than $3,000”. Mr Penano said his understanding was that the respondent had got another man to send the message to the complainant.

16. The complainant, after denying that he owed anyone $3,000 or any amount of money, said in his first statement (made after the alleged assault, and not identifying the period to which it referred in this respect):

“The only thing that I can think of is that between 2016 and 2022 [the respondent] would transfer me money. …

…

That is the only thing I can think of is that he is telling people I owe him money from these times. I never asked for the money and there was never an agreement that I would take the money and / or pay him back.”

The Decision

15. The trial judge excluded the recognition evidence pursuant to s 137 of the Evidence Act, which provides as follows:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

16. The trial judge accepted that the recognition evidence was strongly probative of the Crown case. However, her Honour considered that the danger of unfair prejudice outweighed the probative value of the recognition evidence, to such an extent that the danger of unfair prejudice could not be ameliorated by any judicial direction.

17. The danger of unfair prejudice was as follows: there was a real possibility that the complainant had been primed to identify the respondent because of a pre-existing assumption that the respondent was involved in sending the Instagram messages seeking to recover a debt; in order to challenge the recognition evidence on that basis, the respondent would have to introduce evidence about those matters (including about the money that the respondent had transferred to the complainant); and that evidence would be used by the jury as evidence of motive on the part of the respondent where there was otherwise none; directions crafted to deal with the priming issue were very likely to sound in further prejudice.

The appeal

18. The Crown confirmed that it was not the Crown case that there was any loan from the respondent to the complainant and that it would not depart from the position taken before the trial judge. In particular, if the recognition evidence were admitted:

19. The Crown would not allege any motive on the part of the respondent.

20. That would remain the Crown position if the respondent sought to challenge the recognition evidence on the basis that the complainant had been primed to assume that the respondent was one of his attackers. That would be so even if the respondent (a) introduced evidence that money had changed hands between him and the complainant, or (b) relied on the Instagram messages in his case.

21. The Crown accepted that in the absence of any direction, there would be some risk of unfair prejudice to the respondent. But the Crown submitted that that risk would be eliminated by appropriate directions (as described below).

22. The respondent submitted that his position would be that no loan was ever given. On that issue, the cases of the Crown and the respondent were in agreement.

Consideration

21. It is not in doubt that the Decision “eliminates or substantially weakens the prosecution’s case”, so as to satisfy the condition in s 5F(3A). In the absence of the recognition evidence, the Crown did not have a case to go to the jury with respect to the respondent. The only other evidence against the respondent consisted of records showing details of mobile telephone calls suggesting contact between the co-accused Mr Antonakos and the respondent at 5:27 pm and 6:15 pm on the evening of the alleged robbery. There was no evidence of what was said in those calls (if they occurred).

22. The standard of review where the decision the subject of the appeal concerns whether evidence should be excluded under s 137 of the Evidence Act is the correctness standard: Moore (a pseudonym) v The King [2024] HCA 30; (2024) ALJR 1119 at [18]. The Court there held:

“The application of s 137 requires the making of three evaluative assessments, namely the weight of the probative value of the evidence, the extent of any danger of unfair prejudice, and then a comparison of one with the other. … There can only be one correct answer resulting from this process. …”

23. The probative value of the evidence is to be evaluated by reference to what it is capable of proving, taken at its highest, without reference to issues concerning its credibility and reliability: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [44], [52]. It was not in dispute that the probative value of the recognition evidence here was high.

24. The respondent put his argument under s 137 on the basis that the danger of unfair prejudice arose because the admission of the recognition evidence would leave the respondent no other choice but to introduce other evidence which itself would be unfairly prejudicial in the requisite sense. In principle, the danger of unfair prejudice with which s 137 is concerned may extend to unfair prejudice of that kind.

25. An example of a case in which such evidence was excluded is R v Cook [2004] NSWCCA 52. In that case, the appellant had been convicted of the offence of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse, a charge brought under s 61K(b) of the Crimes Act 1900 (NSW). The Crown sought to lead evidence of the appellant’s conduct in running away and attempting to hide when the police arrived, at two separate locations, as evidence of flight signifying consciousness of guilt. Objection was taken pursuant to s 137. On a voir dire conducted at the start of the trial, the appellant gave evidence of his explanation for his attempts to evade the police, which involved a sentence of imprisonment for one month for contravention of an unrelated prior apprehended domestic violence order; a sentence of three months’ imprisonment for an unrelated assault; a failure to appear at court, and a recent breach of an apprehended domestic violence order. It was held on appeal that the trial judge erred in admitting the evidence. Simpson J said of that evidence at [36]: “the probative value to the Crown case was very high indeed”. (It should be noted that it was not as high as the probative value of the recognition evidence in the present case.)

26. But her Honour also said at [32] and [48] (Ipp JA and Adams J agreeing):

“… The prejudice to the appellant is plain. Not only would his explanation expose him as a person with a criminal record (the assault and the previous breach), it would also expose him as a person with a history of violence against women. …

…

… His response to the evidence not only disclosed previous criminal offences, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged. That the evidence would have a prejudicial effect is clear. … It remains to be determined whether the prejudicial effect of the evidence was unfair. Bearing in mind the substance of the charge the appellant faced, and the nature of the evidence he would have to adduce in order to meet the flight evidence, I have come to the conclusion that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence. In this regard, it cannot be overlooked that the decision to admit the evidence may well have been a factor in the consideration of whether the appellant was to give evidence or not.”

27. The present case is very far from Cook, where the evidence the accused “would have to adduce” was unfairly prejudicial because there was a high risk the jury would improperly use evidence of separate but disturbingly similar offences to convict the accused of the offence with which he was charged, and it was clear from the evidence given on the voir dire that that was the only course available to the accused to answer the evidence of flight in that case.

28. By contrast, here, the danger of unfair prejudice is said to arise as follows.

29. The Crown case does not involve an allegation of motive, and does not include any evidence of money having been advanced by the respondent to the complainant from which to infer a motive.

30. In order to challenge the recognition evidence on the “priming” basis, it would be necessary for the respondent to introduce evidence that the respondent had sent money to the complainant, which had led the complainant to assume, at some time prior to the alleged offending, that the respondent was involved in some way, perhaps as the “brother”. The evidence that money had changed hands would not otherwise be before the jury. There is a risk that the jury would misuse that evidence (led, or elicited from the complainant in cross-examination, only in order to challenge the recognition evidence) by using it to infer that the respondent had a financial motive for the offence, notwithstanding that that was no part of the Crown case.

31. That is a danger of unfair prejudice which could not be cured by a direction, and that danger outweighed the probative value of the recognition evidence.

32. We do not accept the respondent’s submission that admission of the recognition evidence would leave him no choice other than to introduce other evidence (in particular, that the respondent had sent the complainant money), which would itself be unfairly prejudicial. There are a number of ways for the respondent to challenge the recognition evidence, as were canvassed in the trial judge’s reasons. These included that the complainant had not recognised the respondent as one of the two people running towards the complainant; that the recognition had taken place at night, under artificial lighting, while the complainant was being punched in the head and face; where he made the identification in an instant; and where he had not seen the respondent for a period of some months.

33. In any event, as noted above, the Crown accepted in the course of argument on the appeal that certain directions would be appropriate. Particularly given that the Crown would not itself seek to suggest that the respondent had any motive for the offending or had lent any money to the complainant, the Crown was correct in submitting that any risk of unfair prejudice arising from the admission of the recognition evidence would be cured by such directions. Counsel for the respondent accepted that the proposed directions would go a long way towards curing the prejudice he had identified.

34. We allowed the appeal on the basis of the Crown’s acceptance that the jury should be told, and directed, as follows.

35. The Crown does not allege any motive on the part of the respondent.

36. (If the respondent challenges the recognition evidence on the “priming” basis) the Crown and the respondent are in agreement that any money advanced by the respondent to the complainant was not by way of loan.

37. As to the reliability of recognition evidence: see s 165 Evidence Act.

38. That the evidence of Instagram messages cannot be used in the case against the respondent. (We were told that a clear direction to this effect had already been given.)

39. That the jury are not permitted to draw a nexus between any money changing hands and the Instagram messages in terms of establishing a motive.

40. That, to the extent that there had been cross-examination of the complainant suggesting that, rather than genuinely recognising the respondent, the complainant had assumed before the alleged offending that the respondent was his assailant, any evidence elicited in that cross-examination could only be used by the jury to consider the complainant’s state of mind as to recognising the respondent as an assailant, and for no other purpose. This would include any evidence that money had changed hands between the respondent and the complainant, and, to the extent that the respondent relied on the Instagram messages in his case, the evidence of those messages.

41. In the circumstances of this case, there is no reason to think that the jury would not decide the issues in accordance with those directions.

42. The third of the evaluative assessments identified in Moore is to compare the probative value of the evidence and the extent of any danger of unfair prejudice. The probative value of the recognition evidence is very high. Having regard to our analysis as set out above, we are satisfied that any danger of unfair prejudice to the respondent would be outweighed by that probative value.

43. Accordingly, the recognition evidence should have been admitted.

44. We should add, however, that our decision was predicated on submissions made as to the evidence that might be given by the complainant at trial (discussed above). Nothing we have said should be construed as limiting the discretion of the trial judge should that predicate prove ill-founded.

Orders

36. The respondent sought a certificate under s 6(1) of the Suitors’ Fund Act 1951 (NSW) but advanced no submissions in support of such order. We will direct that within 7 days the parties exchange written submissions not exceeding 2 pages in length on the question whether the respondent should be granted a certificate under s 6(1) of the Suitors’ Fund Act, with that issue to be determined on the papers.

**********