BC v R

Case [2015] NSWCCA 327


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: BC v R [2015] NSWCCA 327
Hearing dates:12 August 2015
Decision date: 18 December 2015
Before: 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
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 306B
Evidence Act 1995 (NSW), ss 55, 97, 101, 135
Cases Cited: AE v R [2008] NSWCCA 52
B v R [1992] HCA 68; 175 CLR 599; 63 A Crim R 225
BJS v R (No 1) [2011] NSWCCA 239
BJS v R (No 2) [2013] NSWCCA 123
BP v R; R v BP [2010] NSWCCA 303
DAO v R [2011] NSWCCA 63; 278 ALR 765
DJW v R [2015] NSWCCA 164
DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758; 215 A Crim R 349
DSJ v R; NS v R [2014] NSWCCA 77
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206
FB v R; R v FB [2011] NSWCCA 217
Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394
Harris v Director of Public Prosecutions [1952] AC 694 Markby v R (1978) 140 CLR 108
Hoch v The Queen [1988] HCA 50; 165 CLR 292
House v R [1936] HCA 40; 55 CLR 499
JG v R [2014] NSWCCA 138
Jones v R [2014] NSWCCA 280
Leonard v The Queen [2006] NSWCCA 267; 164 A Crim R 374
McIntosh v R [2015] NSWCCA 184
Pfennig v R (1995) 182 CLR 461 at 482-3; 77 A Crim R 149
R v Dupas (No 3) [2009] VSCA 202; 26 VR 380
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
R v RN [2005] NSWCCA 413
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v SK; SK v R [2011] NSWCCA 292
R v XY [2013] NSWCCA 121; 84 NSWLR 363
Sokolowskyj v R [2014] NSWCCA 55
Texts Cited: Professor J Hunter, “Jurors’…

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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.

Orders

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Background

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Evidence

Evidence Before The Court

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