Simpson J at [1]; R A Hulme J at [2]; Bellew J at [65]
Decision:
1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:
CRIMINAL LAW – evidence – tendency evidence – where applicant indicted on multiple counts of sexual assault involving six complainants – whether error in failing to order separate trials in respect of all complainants – where primary judge found no real chance or possibility of concoction or contamination in relation to four complainants – approach to assessing probative value in s 97 Evidence Act – competing inferences may be relevant to assessment of probative value – finding of primary judge open – no error
CRIMINAL LAW – evidence – tendency evidence – where applicant indicted on multiple counts of sexual assault involving six complainants – whether error in failing to order separate trials in respect of all complainants – whether evidence of one particular complainant is too dissimilar to the evidence of the other complainants to have significant probative value – not necessary that allegations exhibit close similarity - differences in age of complainants not significant –– no error in approach of primary judge
CRIMINAL LAW – evidence – tendency evidence – where applicant indicted on multiple counts of sexual assault involving six complainants – whether error in failing to order separate trials in respect of all complainants – whether error in assessment of prejudicial effect of the evidence – no specific prejudice identified – no deviant behaviour – jury directions appropriate to deal with any prejudice – no error in approach of primary judge
[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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AGLC
DJW v R [2015] NSWCCA 164
Case
[2015] NSWCCA 164
Decision Date
CaseChat Overview and Summary
The case of DJW v R involved the applicant, DJW, who was indicted on multiple counts of sexual assault involving six complainants. The primary judge decided not to order separate trials for all complainants, a decision DJW appealed on the grounds that it was an error. The appeal was heard by the court, which needed to determine if the primary judge's decision to not separate the trials was correct and whether the evidence's probative value and prejudicial effect were assessed appropriately.
The court examined the legal issues, including whether the primary judge erred in not ordering separate trials for all complainants and if the evidence of one complainant was too dissimilar to have significant probative value. The court also considered whether the primary judge's assessment of the prejudicial effect of the evidence was flawed. The court found that the primary judge's approach was correct, as there was no real chance or possibility of concoction or contamination in relation to four of the complainants, and the differences in the complainants' ages did not significantly affect the probative value of their evidence. Additionally, the court noted that the primary judge had appropriately directed the jury to address any prejudice.
The court concluded that the primary judge's decision to not order separate trials was not an error, as the probative value of the evidence was significant, and the prejudicial effect was appropriately managed through jury directions. The court found that the differences in the complainants' ages and the varying nature of the allegations did not undermine the probative value of the evidence. The appeal was dismissed, and the primary judge's decision was upheld.