R v CDA

The appellant was convicted of 19 counts of sexual offending against three sisters, who were children at the time, while babysitting them. This case involved an appeal against conviction on the ground that the trial judge erred by admitting into evidence the propensity evidence of two witnesses, the appellant's stepdaughter CC and her mother TJ. The appellant had previously been convicted of sexual offences against CC and this evidence was challenged at a pre-trial hearing before the trial judge, who ruled it admissible. The appellant appealed against the conviction on the ground that the trial judge erred by admitting into evidence the propensity evidence of two witnesses, CC and TJ.

The court was required to determine whether there were sufficient similarities or other connection between the offences against CC and those against the three sisters to make them admissible for the alleged offending against the sisters. The court also had to consider whether the pre-trial hearing judge erred in ruling the evidence of offending against CC to be admissible.

The court held that the trial judge erred in admitting the propensity evidence of CC and TJ. The court found that there were not sufficient similarities or other connection between the offences against CC and those against the three sisters to make them admissible for the alleged offending against the sisters. The court also found that the pre-trial hearing judge erred in ruling the evidence of offending against CC to be admissible.

The court quashed the convictions and ordered a retrial. The court held that the wrongful reception of such prejudicial evidence made the trial so overwhelmingly more adverse to the appellant's prospects, than the trial to which the appellant was entitled by law, as to have deprived him of a chance which was fairly open to him of being acquitted. The court emphasised the need for trial judges to analyse whether features of alleged similarity are properly supported by the facts and to be wary of the potentially illusory force of a prosecutor's long list of features of alleged similarity.