R v Raymundo (No 2)

Category: Costs

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.

JUDGMENT

1. THE COURT: The Director of Public Prosecutions appealed successfully 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): R v Raymundo [2025] NSWCCA 109 (Principal Judgment). The Decision had 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.

2. 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 at the hearing of the appeal. The Court directed that the parties exchange written submissions on that question, with that issue to be determined on the papers. Submissions were filed in accordance with the Court’s orders. For the following reasons that application should be refused.

3. The basis on which the respondent sought a certificate was as follows. First, he submitted that, except for filing a notice of motion to exclude evidence which he considered to be unfair, he did not directly contribute to the circumstance in which he had been required to meet the additional expense of appearing in a Crown appeal by virtue of an interlocutory decision made by the trial judge. Secondly, he said that he had been required to continue to defend the proceedings at first instance at the same time as preparing to appear in this Court, due to the trial judge’s decision to proceed with the trial.

4. As to the first matter, we would characterise the respondent’s involvement differently. The evidence that was the subject of the respondent’s notice of motion, and which the trial judge decided to exclude, was the complainant’s evidence that he recognised the respondent at the time of the robbery. The reasoning as to unfair prejudice which led to her Honour’s decision to exclude the evidence pursuant to s 137 was as follows (see Principal Judgment at [17]):

5. There was a real possibility that the complainant had been “primed” to identify the respondent as one of the men who robbed him, because the complainant was operating under a pre-existing assumption at the time of the robbery that the respondent had been involved in sending certain Instagram messages (sent from a user account called “Bobby Antonakos”) seeking to recover a debt.

6. In order to challenge the recognition evidence on the “priming” basis, the respondent would have to introduce evidence about money that the respondent had advanced to the complainant in the past (which was what had led the complainant to make his pre-existing assumption about the respondent’s involvement). The prejudice was that evidence of those advances would not otherwise be before the jury, who could then use that evidence to infer a motive on the part of the respondent where there was otherwise none on the Crown case.

7. Directions crafted to deal with the priming issue were very likely to sound in further prejudice.

8. It is true that the threads of that argument were first raised by the trial judge in the course of argument on the respondent’s notice of motion to exclude the evidence. But without the identification evidence, there would have been no case to go to the jury with respect to the respondent. At the hearing of his notice of motion, he embraced the argument and, in particular, the proposition that no direction could cure the potential prejudice. For the reasons explained in the Principal Judgment, that proposition was incorrect. The respondent’s application to the trial judge suffered from a basic flaw: it necessarily involved the proposition that no adequate direction could be given to the jury, but the respondent failed to articulate and demonstrate why that was so. That it was necessary to do so was clear, particularly given that s 116 of the Evidence Act makes specific provision for directing the jury about the special need for caution before accepting identification evidence, and s 165 provides for the judge to warn the jury about the unreliability of certain kinds of evidence, including identification evidence, if a party so requests.

9. The respondent then filed submissions maintaining the correctness of the trial judge’s decision. It was only belatedly, at the hearing of the appeal, that the respondent accepted that appropriate directions would go a long way towards curing the prejudice identified.

10. As to the second matter on which the respondent relied, it is not uncommon for an appeal pursuant to s 5F to be heard while a trial is proceeding. This is not a case in which the respondent became a party mid-trial to a Crown appeal in order to ventilate some question of general principle. The appeal corrected an error which the respondent had encouraged and which was aligned with his forensic interests.

11. Notwithstanding the scope of the power to grant a certificate (see Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66 at [13] per Basten JA, Johnson J and RA Hulme J agreeing), this is not an appropriate case in which to exercise the discretion to do so.

12. The order of the Court is: the respondent’s application for a certificate under s 6(1) of the Suitors*’* Fund Act 1951 (NSW) be refused.

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