BM v R

The appellant, BM, was convicted on two counts of sexual assault and one count of indecent assault. The three complainants in the case were his former partners. He appealed against his convictions and sentences, raising multiple grounds of appeal. The primary focus was on the trial judge's decision to join the three trials together and allow evidence of the complainants to be used as tendency evidence. The Court of Criminal Appeal was tasked with determining whether the trial judge erred in these decisions.

The court considered whether there was an error in refusing the application for separate trials. It also examined whether the trial judge failed to properly construe and apply sections 97 and 101 of the Evidence Act in finding that the evidence with respect to each of the complainants was admissible as tendency evidence. Furthermore, the court reviewed whether there was an error in concluding there was no evidence of concoction or contamination in the evidence of the three complainants. Lastly, the court assessed whether there was an error in not excluding evidence due to the risk of unfair prejudice to the applicant pursuant to section 101 of the Evidence Act.

The Court of Criminal Appeal found that the trial judge did not err in refusing the application for separate trials, as the complaints were closely related and the evidence was not likely to prejudice the applicant unduly. The court determined that the trial judge correctly construed and applied sections 97 and 101 of the Evidence Act, as the evidence was relevant and had probative value. The court also found no evidence of concoction or contamination in the complainants' evidence. However, the court held that the trial judge erred in not excluding evidence due to the risk of unfair prejudice to the applicant. Despite this error, the court concluded that it did not affect the safety of the applicant's convictions.

The Court of Criminal Appeal allowed the appeal, quashed the convictions, and ordered a retrial. The court also ordered that the retrial be conducted as a separate trial for each complainant, to mitigate the risk of unfair prejudice.