1. Vacate the rulings made by Flannery DCJ on 7 May 2010; 2. The evidence of tendency that the prosecution intends to produce pursuant to the Evidence Act 1995, s 97(1) contained in the notice dated 19 April 2010 is admissible; 3. Order that counts 1-10 on the indictment be tried together.
CATCHWORDS:
CRIMINAL LAW – appeal – Criminal Appeal Act 1912, s 5F (3A) – appeal against decision on admissibility of evidence – requirement that decision eliminated or substantially weakened the prosecution’s case - CRIMINAL LAW – appeal – interlocutory orders – Evidence Act 1995, s 97 – the tendency rule - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – requirement that evidence of tendency have significant probative value - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – factually similar cases – inappropriateness of equating tendency evidence with coincidence evidence - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – whether “sufficient similarity” or “striking similarity” required in establishing tendency - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – whether a pattern of behaviour, modus operandi or system or pattern with common threads is required in establishing tendency - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – evidence of tendency of principal of college to have sexual interest in young male students and to engage in sexual activities with young male students - CRIMINAL LAW – appeal – interlocutory orders – tendency evidence – multiple allegations – evidence of each allegation “different” – whether separate counts on indictment be heard together
[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
R v PWD [2010] NSWCCA 209
Case
[2010] NSWCCA 209
Decision Date
CaseChat Overview and Summary
The defendant, PWD, appealed against the decision of the Supreme Court of the State to exclude evidence of his past sexual activities with young male students. The appeal was heard in the Court of Criminal Appeal. The central issue before the court was whether the trial judge erred in excluding evidence that was relevant to the defendant's propensity to have a sexual interest in young male students and to engage in sexual activities with them. This evidence was deemed inadmissible as its probative value was substantially outweighed by the danger of unfair prejudice to the defendant.
The court examined the relevant provisions of the Evidence Act 1995, particularly sections 97 and 98, which govern the admissibility of tendency evidence. The court held that the trial judge had not erred in excluding the evidence. The court found that the evidence did not have significant probative value as it was not shown to be part of a pattern of behaviour, modus operandi or system with common threads. Furthermore, the court held that the evidence did not establish a "sufficient similarity" or "striking similarity" with the current charges, and equated tendency evidence with coincidence evidence was inappropriate. The court also found that the evidence of each allegation was "different" and therefore separate counts on the indictment should be heard together.
The appeal was dismissed. The court upheld the trial judge's decision to exclude the evidence of the defendant's past sexual activities with young male students. The court found that the evidence did not meet the criteria for admissibility under the Evidence Act 1995. The court also found that the evidence did not establish a pattern of behaviour, modus operandi or system with common threads, and that equating tendency evidence with coincidence evidence was inappropriate. The court held that the evidence of each allegation was "different" and therefore separate counts on the indictment should be heard together.