R (Cth) v Seguel

HEADNOTE [This headnote is not to be read as part of the judgment] On 24 November 2023, during a voir dire hearing in the District Court of New South Wales, Judge Turnbull SC excluded certain evidence; a decision which the Crown appeals pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW). The Crown sought to rely upon the excluded evidence to go to the respondent's state of mind among other uses; it did not seek to adduce the evidence to prove a tendency or coincidence. The trial judge excluded the evidence as tendency or coincidence evidence. On appeal, the Crown argued the evidence had been wrongly excluded. The evidence in question included internet searches on encrypted dark web browsers in relation to buying and processing illicit drugs, videos with instructions on packing illicit drugs so as to avoid detection, and text messages that referenced drug transactions and which used drug language. An initial issue at the hearing of the appeal was the jurisdiction of the Court. The Court (Wilson, Ierace and Cavanagh JJ agreeing, Cavanagh J with additional observations), allowing the appeal, held: The Court of Appeal's jurisdiction is enlivened pursuant to s 5F(3A) because the exclusion of the particular evidence "substantially weakens" the Crown's case (Wilson J at [62]; Ierace J at [87]; Cavanagh J at [89]). The trial judge erred in excluding the evidence as tendency evidence under s 101 of the Evidence Act 1999 (NSW), because the Crown did not seek to rely upon the evidence in that way, and it was highly probative of facts in issue, including the respondent's state of mind, being relevant to the fault elements the Crown was required to prove. The evidence has other important and probative uses, such as to rebut a defence of innocence. Any prejudicial effect could be addressed by directions, there being no relevant prejudice (Wilson J at [63]ff); Ierace J at [87]; Cavanagh J at [92] - [94]). Alternatively, if the trial judge excluded the evidence under the court's general discretion to do so contained in s 135 of the Evidence Act, or pursuant to s 137, this was incorrect due to the real probative force of the evidence. Any concern that the jury would use the evidence as tendency evidence could be readily addressed by appropriate directions to the jury (Wilson J at [79] - [85]; Ierace J at [87]; Cavanagh J at [90]).