McNamara v. The King

Lower Court Judgment

16/07/2021 Supreme Court of New South Wales (Court of Criminal Appeal) (Bell P, R A Hulme and Beech-Jones JJ)

[2021] NSWCCA 160

Catchwords

Evidence – Unfair prejudice – Meaning of "party" – Joint trial – Co-accused – Where appellant and co-accused arraigned upon joint indictment that alleged one count of murder and one count of supply of commercial quantity of prohibited drug – Where Crown alleged that, pursuant to joint criminal enterprise, appellant and co-accused murdered deceased and dispossessed deceased of drugs – Where appellant sought to introduce evidence relevant to defence of duress and existence of joint criminal enterprise, namely evidence co-accused said to appellant "I did [deceased]" and evidence co-accused told appellant of other serious crimes co-accused committed – Where evidence excluded on basis that, though relevant under s 55 of Evidence Act 1994 (NSW), probative value of evidence substantially outweighed by danger evidence might be "unfairly prejudicial to party" under s 135(a) of Evidence Act, namely to co-accused – Whether word "party" in s 135(a) of Evidence Act 1994 (NSW) extends to and includes co-accused in joint trial