Sharman (a pseudonym) v The King

The applicant, Sharman, was charged with several offences including intentionally causing injury, recklessly causing injury, and common assault. The alleged offending involved multiple complainants and incidents. The trial judge allowed the prosecution to adduce tendency evidence concerning the applicant's past conduct. The applicant challenged the judge's reformulation of the tendency alleged, claiming it resulted in procedural unfairness. The High Court granted leave to appeal and ultimately allowed the appeal.

The legal issues before the court were whether the reformulation of the tendency evidence by the trial judge led to procedural unfairness, and if the judge's approach complied with the statutory requirements set out in the Evidence Act 2008. The court examined the interaction between sections 97 and 101 of the Act, which govern the admissibility of tendency evidence in criminal proceedings. The applicant argued that the reformulation of the tendency evidence by the judge introduced an unfair element because it expanded the scope of the evidence beyond what was initially allowed. The court found that the reformulation did indeed lead to procedural unfairness.

The High Court held that the trial judge's reformulation of the tendency evidence resulted in a broader scope of evidence being admitted, which was not initially allowed. This constituted a procedural unfairness to the applicant. The court stressed that the reformulation had implications that were not initially disclosed to the applicant, which affected their ability to adequately prepare a defence. Furthermore, the court noted that the statutory framework requires that any tendency evidence must be relevant to an issue in the proceeding and not be unfairly prejudicial. The reformulation, according to the court, did not meet these requirements, leading to the conclusion that the trial judge's approach was erroneous.

The High Court allowed the appeal and quashed the conviction of the applicant. The matter was remitted to the trial court for retrial. The court emphasised the importance of ensuring that the procedure followed in criminal trials, particularly regarding the admissibility of tendency evidence, is fair and does not prejudice the accused.