NAM v The Queen

The appellant, NAM, appealed against the decision of the County Court of Victoria to deny his application to sever two sexual offences tried together. NAM was charged with two counts of sexual penetration of a child under the age of 16 years, with one complainant in each count. The trial judge ruled that the evidence of both complainants was cross-admissible and denied NAM's application to sever the charges. NAM appealed to the Court of Appeal of the Supreme Court of Victoria, arguing that the evidence was not sufficiently similar to warrant cross-admissibility.

The key legal issues before the court were whether the evidence of the two complainants was sufficiently similar to warrant cross-admissibility under the Evidence Act 2008 (Vic) and whether the trial judge erred in denying the application to sever the charges. The court had to consider the provisions of sections 97, 98, and 101 of the Evidence Act, which govern the admissibility of evidence of a person's bad character and of similar facts. The court also had to consider the principles of justice and fairness in the administration of criminal justice.

The court held that the evidence of the two complainants was sufficiently similar to warrant cross-admissibility under section 97 of the Evidence Act. The court found that there was a sufficient degree of similarity between the two offences in terms of the nature of the offences, the circumstances in which they were committed, and the relationship between the appellant and the complainants. The court also held that the evidence had significant probative value in relation to the appellant's propensity to commit the offences and that the danger of unfair prejudice did not outweigh the probative value of the evidence. The court further held that the trial judge did not err in denying the application to sever the charges, as the evidence was cross-admissible and the joinder of the charges did not result in a miscarriage of justice.

The appeal was dismissed, and the orders of the County Court of Victoria were upheld. The case serves as a reminder of the importance of considering the principles of justice and fairness in the administration of criminal justice, as well as the need to balance the probative value of evidence against the danger of unfair prejudice. The court's decision also highlights the importance of ensuring that the evidence is sufficiently similar to warrant cross-admissibility under the Evidence Act.