7 October 2016; further written submissions 24 and 25 October 2016
Decision date:
14 June 2017
Before:
Meagher JA at [1]; Harrison J at [123]; RA Hulme J at [123]
Decision:
1. Extend time as may be required. 2. Grant leave to appeal against conviction. 3. Dismiss the appeal.
Catchwords:
CRIMINAL LAW – appeal against conviction – charges of acts of indecency committed on young teenage boy – where trial judge does not give reasons for admitting tendency evidence – whether miscarriage of justice where no procedural difficulty resulting from absence of reasons and appellate court able to determine whether evidence wrongly admitted – evidence properly admitted – no substantial miscarriage of justice
EVIDENCE – admissibility – tendency evidence – charges of acts of indecency committed on young teenage boy – where evidence of two occasions 10 years earlier relied on to prove accused had tendency to be sexually interested in early teenage boys and to act on that interest – whether evidence had significant probative value – whether probative value of evidence substantially outweighed prejudicial effect
Legislation Cited:
Criminal Appeal Act 1912 (NSW), ss 5(1), 5F(3A), 6(1) Criminal Appeal Rules (NSW), r 25A(2) Evidence Act 1995 (NSW), ss 95, 97(1), 101(2)
[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
McPhillamy v R [2017] NSWCCA 130
Case
[2017] NSWCCA 130
Decision Date
CaseChat Overview and Summary
The matter of McPhillamy v R involved an appeal against the conviction of the appellant, who had been found guilty of several charges of acts of indecency committed on a young teenage boy. The appellant sought to challenge the admission of tendency evidence at trial, arguing that the trial judge did not provide reasons for its admission and that this resulted in a miscarriage of justice. The appeal was heard in the High Court of Australia.
The central legal issues before the court were whether the absence of reasons from the trial judge for admitting the tendency evidence constituted a miscarriage of justice and whether the tendency evidence had significant probative value that substantially outweighed its prejudicial effect. The appellant argued that the lack of reasons meant that the trial judge may have overlooked relevant considerations and that the prejudicial effect of the evidence outweighed its probative value.
The court held that the absence of reasons from the trial judge did not result in a miscarriage of justice, as no procedural difficulties arose from this omission and the appellate court was able to determine whether the evidence was wrongly admitted. The court further found that the tendency evidence had significant probative value, as it was relevant to establishing the appellant's propensity to be sexually interested in early teenage boys and to act on that interest. The probative value of the evidence substantially outweighed its prejudicial effect, and therefore it was properly admitted. The court concluded that there was no substantial miscarriage of justice in the admission of the evidence.
The court dismissed the appeal and upheld the conviction of the appellant. The orders of the court were that the appeal be dismissed and the conviction and sentence of the appellant be affirmed.