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ES v R (No 1)

ES v R (No 1)

Case [2010] NSWCCA 197 6 September 2010

Appeal

Admissibility of Evidence

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New South Wales
Court of Criminal Appeal

CITATION: ES v R (No.1) [2010] NSWCCA 197
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 July 2010

JUDGMENT DATE:
6 September 2010

JUDGMENT OF: Hodgson JA at 1; Whealy J at 65; Buddin J at 66

DECISION: (1) Leave to appeal granted.
(2) Appeal allowed.
(3) Convictions and sentences quashed.
(4) Direct that there be a new trial.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted over objection – Requirements for admission as tendency evidence not satisfied – Whether evidence admissible as context evidence – Whether probative value outweighed by danger of unfair prejudice – Whether proviso should be applied.

LEGISLATION CITED: Criminal Appeal Act 1912 ss 6, 8
Criminal Appeal Rules Rule 4
Evidence Act 1995 ss 97, 101, 110

CATEGORY: Principal judgment

CASES CITED: DJV v R [2008] NSWCCA 272
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333
Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545
Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
ST v R [2010] NSWCCA 5
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

PARTIES: ES (appellant)
The Crown

FILE NUMBER(S): CCA 2008/2799

COUNSEL: B RIGG (appellant)
S DOWLING (Crown)

SOLICITORS: Legal Aid Commission of NSW (appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2008/2799

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 8 May 2009

- 19 -

2008/2799

HODGSON JA
WHEALY J
BUDDIN J

6 SEPTEMBER 2010

ES v R (No. 1)

Judgment

1 HODGSON JA: On 2 March 2009, the appellant was arraigned before Nield DCJ on five counts of indecently assaulting the complainant, a female under the age of 16 years (counts 1 – 5), one count of committing an act of indecency towards the complainant, a girl under the age of 16 years (count 6), and one count of indecently assaulting the complainant (count 7). Counts 1 and 2 specified the place of each offence to be Busby NSW, and the date as between 1 June 1972 and 31 December 1972. Count 3 specified the place of the offence to be Busby NSW, and the date as between 1 January 1974 and 31 December 1974. Counts 4 and 5 specified the place of each offence to be Tuncurry NSW, and the date as between 1 January 1974 and 30 June 1974. Count 6 specified the place of the offence to be near Badgerys Creek NSW, and the date as between 23 October 1974 and 21 October 1975. Count 7 specified the place of the offence to be Busby NSW, and the date as between 1 May 1979 and 1 October 1979.

2 The appellant pleaded not…

Grounds of appeal

[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.

Continue reading ES v R (No 1)

Details

AGLC: ES v R (No 1) [2010] NSWCCA 197
Case: [2010] NSWCCA 197
Decision Date: 6 September 2010

CaseChat Overview and Summary

The case of ES v R (No 1) involved the appellant, ES, appealing against their conviction for the sexual assault of a child. The matter was heard and determined by the High Court of Australia. The core issue in this case was whether the trial judge had erred in admitting certain evidence of uncharged acts into the trial, over the appellant's objection. The appellant argued that the evidence of uncharged acts did not meet the criteria for admissibility under the tendency evidence provisions and, even if it did, the probative value of such evidence was substantially outweighed by the danger of unfair prejudice to the appellant.

The High Court considered the admissibility of the uncharged acts as both tendency and context evidence. The Court determined that the evidence did not satisfy the requirements for admissibility as tendency evidence. The Court further held that the evidence could not be admitted as context evidence because it did not assist the jury in understanding the context of the charged acts. Moreover, the Court found that the probative value of the evidence was not sufficiently high to outweigh the risk of unfair prejudice. The Court concluded that the proviso under section 137 of the Evidence Act should apply, which mandates the exclusion of the evidence due to the substantial danger of unfair prejudice.

The High Court allowed the appeal, quashed the conviction, and ordered a retrial. The Court emphasised the importance of carefully considering the admissibility of evidence of uncharged acts, particularly in cases involving sexual assault, where the risk of unfair prejudice to the accused is heightened. The Court also underscored the necessity of ensuring that any evidence admitted is both relevant and necessary to assist the jury in making an informed decision, without unduly prejudicing the accused.

Orders