Simpson JA at [1]; Adams J at [2]; Beech-Jones J at [72].
Decision:
1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeal – application under s 5F of the Criminal Appeal Act 1912 (NSW) – separate trials – admission of tendency evidence – offences committed between ages 11 and 28 years old – whether evidence of charges admissible as tendency evidence – whether charges should be tried separately
CRIMINAL LAW – appeal – application under s 5F of the Criminal Appeal Act 1912 (NSW) – tendency evidence – complainants are sisters – possibility of concoction – relevance of concoction in assessing probative value under s 101(2) of the Evidence Act 1995 (NSW) – whether probative value of evidence outweighed by prejudicial effect
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
BC v R [2015] NSWCCA 327
Case
[2015] NSWCCA 327
Decision Date
CaseChat Overview and Summary
The appeal by BC against his conviction and sentence in the Supreme Court was heard in the Court of Criminal Appeal. The appellant was convicted of multiple charges, including serious sexual offences against two sisters. The appeal focused on the admissibility of tendency evidence, the separate trials of certain charges, and the probative value versus prejudicial effect of the evidence. The appellant argued that the evidence of prior charges should not have been admitted as tendency evidence and that certain charges should have been tried separately.
The court was required to determine whether the evidence of prior charges, which spanned a period from when the appellant was 11 years old to when he was 28, was admissible as tendency evidence. It also needed to decide whether the charges against the two sisters should have been tried separately due to the risk of prejudice and the potential for the complainants to have conspired to fabricate their accounts. Furthermore, the court had to assess whether the probative value of the evidence was outweighed by its prejudicial effect, particularly in light of the possibility of concoction.
The Court of Criminal Appeal held that the evidence of prior charges was admissible under section 101 of the Evidence Act 1995 (NSW) as it had significant probative value in establishing the appellant's propensity to commit the offences. The court found that the probative value outweighed any prejudicial effect, particularly as the possibility of concoction did not negate the probative force of the evidence. The court also concluded that the charges should not have been tried separately as there was no significant risk of prejudice that would outweigh the benefits of a joint trial. The appeal was dismissed.
No orders were made as the appeal was dismissed. The conviction and sentence of the appellant remained intact.