Basten JA at [1]; Fullerton J at [63]; R A Hulme J at [64]
Decision:
(1) Grant leave to appeal against convictions entered on 15 March 2012.
(2) Dismiss the appeal.
Catchwords:
APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of court below - whether decision involved a discretionary exercise of power
COURTS AND JUDICIAL SYSTEM - intermediate appellate courts - interpretation of uniform legislation -provisions with respect to admissibility of tendency and coincidence evidence - different interpretations alleged as to meaning of "significant probative value" - Velkoski v The Queen [2014] VSCA 121 held "significant probative value" requires a higher degree of similarities to that required by this Court - whether difference exists - whether difference needs to be addressed and reconciled - Evidence Act 1995 (NSW), ss 97, 98 - Evidence Act 2008 (Vic), ss 97, 98
EVIDENCE - admissibility - tendency and coincidence evidence - similar circumstances alleged in separate and independent complaints against applicant - whether evidence had "significant probative value" - whether trial judge failed to identify issues at trial to determine probative value - degree of specificity of conduct in determining probative value of tendency or coincidence evidence - relevance of similarities in determining probative value of tendency evidence - whether probative value of evidence outweighed any prejudicial effect - Evidence Act 1995 (NSW), ss 97, 98, 101(2)
Counsel: Mr M Thangaraj SC/Mr S Pararajasinghan (Appellant) Mr R Herps (Respondent)
Solicitors: Simpson Freed Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
CCA 2011/170763
Decision under…
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.
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Details
AGLC
Saoud v R [2014] NSWCCA 136
Case
[2014] NSWCCA 136
Decision Date
CaseChat Overview and Summary
The appellant, Saoud, was convicted by a jury in the Supreme Court of Victoria of eight charges of sexual offences against children. The appellant appealed against his conviction and sentence, asserting that the trial judge erred in admitting evidence of the appellant's past sexual offending. The High Court of Australia allowed the appeal and ordered a new trial. The central issue in the appeal was the interpretation and application of the provisions in the Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic) concerning the admissibility of tendency and coincidence evidence. The appellant argued that the trial judge failed to properly assess the probative value of the evidence in question, specifically whether it had significant probative value. The court considered the differing interpretations of what constitutes "significant probative value" as discussed in Velkoski v The Queen [2014], and examined whether the trial judge's approach to this assessment was consistent with the higher threshold required by appellate courts.
The court held that there was a discernible difference in the approach taken by the intermediate appellate court and the High Court regarding the degree of similarity required for tendency and coincidence evidence. The court found that the trial judge had not adequately identified and addressed the issues necessary to determine the probative value of the evidence. The court emphasised the importance of specificity in the conduct when evaluating the probative value of tendency or coincidence evidence, and whether the similarities between the past and present charges were sufficiently detailed to meet the threshold of significant probative value. Additionally, the court noted that the probative value of the evidence must be weighed against any prejudicial effect it may have. The High Court concluded that the trial judge's assessment did not meet the required standard, leading to an error that warranted a new trial.