Director of Public Prosecutions v McGary (No 5)

The Director of Public Prosecutions sought to adduce evidence to support a tendency assertion in the case against McGary, who was charged with sexual intercourse without consent. The complainant, a woman, alleged that McGary engaged in sexual activity with her without her consent. McGary, in his defence, asserted a tendency to disregard a woman's expressed lack of consent. The court had to decide whether the tendered evidence was relevant to proving this asserted tendency and whether it would be unfairly prejudicial to McGary.

The legal issues revolved around the admissibility of the tendered evidence under the provisions of the Evidence Act 2011 (ACT). Specifically, the court needed to assess whether the evidence was relevant to prove McGary's tendency to ignore a woman's lack of consent, as asserted by the defence. Additionally, the court had to consider whether admitting the evidence would cause substantial unfair prejudice to McGary, potentially outweighing its probative value. The court examined the nature of the evidence, the relevance of the asserted tendency, and the potential for prejudice.

The court determined that the tendered evidence was relevant to proving McGary's asserted tendency to disregard a woman's lack of consent. The evidence, which included prior incidents and McGary's statements, was deemed to support the defence's assertion. However, the court found that the prejudicial effect of the evidence substantially outweighed its probative value. The evidence was considered to be highly prejudicial, potentially influencing the jury's decision based on factors other than McGary's propensity to disregard a woman's lack of consent. Consequently, the court ruled that the evidence should not be admitted.

The court made an order pursuant to section 192A of the Evidence Act 2011 (ACT) to exclude the tendered evidence from the trial. The evidence was found to be inadmissible due to its substantial prejudicial effect, which outweighed its probative value in proving the asserted tendency.