Hoeben CJ at CL at [1] Adams J at [63] Hall J at [64]
Decision:
(1) The appeal is allowed.
(2) The appellant's conviction on 3 August 2012 is quashed.
(3) There should be a new trial.
Catchwords:
CRIMINAL LAW - conviction appeal - assault with an act of indecency upon a person under the age of 10 - whether tendency evidence properly admitted at trial - evidence relevant and capable of proving a tendency - the tendency specified was at a high level of generality - purpose of evidence to rebut likely challenge to Crown case - tendency evidence lacked "significant probative value" - probative value of tendency evidence did not substantially outweigh its prejudicial effect - tendency evidence should have been rejected - conviction quashed.
Paul Lawrence Sokolowskj - Appellant Regina - Respondent Crown
Representation:
Counsel: Mr J Trevallion - Appellant Ms S Herbert - Respondent Crown Solicitors: SE O'Connor, Legal Aid NSW - Appellant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s):
2011/078513
Decision under appeal
Jurisdiction:
9101
Date of Decision:
2012-11-09 00:00:00
Before:
Ellis DCJ
File Number(s):
2011/078513
Judgment
HOEBEN CJ at CL:
Offence and sentence
The appellant was committed for trial to the District Court sitting at Gosford on one count of assault with an act of indecency upon a person under the age of 10, contrary to s61M(2) of the Crimes Act 1900. On arraignment the appellant pleaded not guilty and his matter was listed for trial at the Gosford District Court on Monday, 20 February 2012.
On Thursday, 16 February 2012 the trial date was vacated as the mother of the complainant had gone into premature labour. On 16 January 2012 the Crown served the defence with a Notice of Tendency Evidence. After the trial date was vacated, the pre-trial tendency argument was listed for Tuesday, 21 February 2012. The Crown served a fresh tendency notice…
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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AGLC
Sokolowskyj v R [2014] NSWCCA 55
Case
[2014] NSWCCA 55
Decision Date
CaseChat Overview and Summary
Sokolowskyj v R concerned an appeal against a conviction for assault with an act of indecency upon a person under the age of 10. The High Court of Australia was asked to determine whether the trial judge erred in admitting certain evidence at trial. The appellant, Sokolowskyj, was convicted of the offence and appealed on the ground that the trial judge improperly admitted evidence of his previous sexual assaults.
The legal issue before the court was whether the trial judge's admission of the tendency evidence was erroneous, given the criteria set out in the case law for admitting such evidence. The court had to consider whether the evidence was relevant and capable of proving a tendency, whether the tendency was specified at a sufficiently high level of generality, and whether the probative value of the evidence substantially outweighed its prejudicial effect. The appellant argued that the evidence was inadmissible as it did not meet the criteria for admissibility and was more prejudicial than probative.
The court found that while the evidence was relevant and capable of proving a tendency, the tendency was specified at a high level of generality, and the purpose of the evidence was to rebut a likely challenge to the Crown's case. The court held that the tendency evidence lacked significant probative value and that its probative value did not substantially outweigh its prejudicial effect. The court concluded that the trial judge should have rejected the tendency evidence, and the conviction was quashed as a result.