R v GM

Case [2016] NSWCCA 78 5 May 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v GM [2016] NSWCCA 78
Hearing dates: 22 July 2015
Decision date: 05 May 2016
Before: Hoeben CJ at CL at [1]
Hall J at [127]
Button J at [128 ]
Decision:
(1) That the Crown appeal, pursuant to ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912 be allowed.
(2)   That the orders of English DCJ of 18 March 2015 be quashed.
(3)   That the six counts on the indictment against the respondent be heard together.
(4)   That the Crown be at liberty to adduce as tendency evidence in that trial the evidence of JM, CM, SM, HM and JC.

Catchwords: CRIMINAL LAW – evidence – tendency evidence – where applicant indicted on multiple counts of sexual assault involving three complainants – whether error in ordering separate trials in respect of each complainant – whether error in primary judge finding a real chance or possibility of concoction or contamination in relation to the evidence of the complainants and tendency witnesses – approach to assessing probative value in s 97 Evidence Act – approach to the balancing exercise in s 101(2) of Evidence Act – appeal by Crown under s 5F allowed – six counts on indictment to be heard together – Crown to be at liberty to adduce tendency evidence.
Legislation Cited: Criminal Appeal Act 1912 (NSW) - s 5F(2), s 5F(3A)
Evidence Act 1995 (NSW) – ss 97, 101
Cases Cited: BJS v Regina [2011] NSWCCA 239
BP v R; R v BP [2010] NSWCCA 303
DJW v R [2015] NSWCCA 164
DSJ v R; NS v R [2012] NSWCCA 9
Hoch v The Queen [1988] HCA 50; 165 CLR 292
Hughes v R [2015] NSWCCA 330
IMM v The Queen [2016] HCA 14
JG v R [2014] NSWCCA 138
Jones v R [2014] NSWCCA 280
McIntosh v R [2015] NSWCCA 184
Regina v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v Best [1998] 102 A Crim R 56
R v GM (District Court (NSW), 18 March 2015, unrep)
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
The Queen v Glennon (No 2) [2001] VSCA 17
Category: Principal judgment
Parties: Regina – Appellant Crown
GM - Respondent
Representation:
Counsel:
Ms T Smith – Appellant Crown
Mr P Boulten SC - Respondent
Solicitors:
Solicitor for Public Prosecutions – Appellant Crown
M Staples - Respondent

File Number(s): 2013/03537
Publication restriction: Yes
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 March 2015

Before:

English DCJ

File Number(s):

2013/03537

Judgment

HOEBEN CJ at CL:

Nature of application

Complaints of historical sexual assaults while they were children were made by four sisters against their uncle, the respondent. There were further allegations of a similar nature from a separate complainant who was not related to the respondent or to the four sisters. The separate complainant had…

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 R v GM

Details

AGLC: R v GM [2016] NSWCCA 78
Case: [2016] NSWCCA 78
Decision Date: 05 May 2016

CaseChat Overview and Summary

The respondent was indicted on six counts of sexual assault involving three complainants. The primary judge ordered separate trials for each complainant, finding a real chance or possibility of concoction or contamination in relation to the evidence of the complainants and tendency witnesses. The Crown appealed, arguing that the primary judge erred in ordering separate trials and in finding a real chance or possibility of concoction or contamination. The appeal was allowed, and the Crown was at liberty to adduce tendency evidence.

The appeal raised several issues concerning the admissibility of tendency evidence under the Evidence Act. The court considered whether the primary judge erred in ordering separate trials for each complainant, whether the primary judge erred in finding a real chance or possibility of concoction or contamination, and whether the balancing exercise under s 101(2) of the Evidence Act was properly conducted. The court held that the primary judge erred in ordering separate trials and in finding a real chance or possibility of concoction or contamination. The court also held that the balancing exercise under s 101(2) of the Evidence Act was not properly conducted.

The court held that the primary judge erred in ordering separate trials because the probative value of the evidence of the complainants and tendency witnesses was not outweighed by the danger of unfair prejudice. The court held that the primary judge erred in finding a real chance or possibility of concoction or contamination because there was no evidence to support such a finding. The court also held that the balancing exercise under s 101(2) of the Evidence Act was not properly conducted because the primary judge failed to consider all relevant factors.

The appeal was allowed, and the six counts on the indictment were to be heard together. The Crown was at liberty to adduce tendency evidence. The court held that the probative value of the evidence of the complainants and tendency witnesses was not outweighed by the danger of unfair prejudice, and that there was no real chance or possibility of concoction or contamination. The court also held that the balancing exercise under s 101(2) of the Evidence Act was not properly conducted, and that the primary judge failed to consider all relevant factors.

Orders