Medium Neutral Citation: Stenner-Wall v R [2023] NSWCCA 163
Hearing dates: 29 March 2023
Decision date: 05 July 2023
Before: Beech-Jones CJ at CL at [1];
Button J at [16];
Hamill J at [92]
Decision:
(1) Appeal dismissed.
(2) Within two weeks of the completion of proceedings at first instance, the Appellant notify the chambers of Button J accordingly.

Catchwords:
CRIME – appeal – interlocutory order – Crown appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) – appeal relating to ruling about admissibility of tendency evidence and severance of counts – where primary tendency asserted in notice did not comprehend certain alleged sexual acts of the respondent – where circumstances of tendency notice strictly confined to complainants indicating that sexual touching and/or digital penetration “unwelcome” – decision by trial judge that counts 16 and 17 pertaining to third female complainant were to proceed separately – ground whether trial judge erred in determining there were exceptional circumstances pursuant to s 97A(5) Evidence Act 1995 that overcame statutory presumption of significant probative value – whether error in in determining that the probative value of the evidence did not outweigh the danger of unfair prejudice – correct decision for different reasons – even assuming counts 16 and 17 had significant probative value as tendency evidence, decision to sever was appropriate due to extreme prejudice in light of specificity of tendency notice – appeal dismissed

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 5F(2)-(3A)
Criminal Procedure Act 1986 (NSW) ss 21, 29, 29A
Evidence Act1995 (NSW) ss 97, 97A, 101

Cases Cited:
BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47
Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894; [2021] HCA 33
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
JS v R [2022] NSWCCA 145
Qualtieri v The Queen (2006) 171 A Crim R 463; [2006] NSWCCA 95
R v Allen [2020] NSWCCA 173
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
Papakosmas v The Queen (1999) 196 CLR 297; [1997] HCA 37
Rassi v R [2023] NSWCCA 119
Salgado v R [2022] NSWCCA 58
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Vaoalii Toalepai v R [2009] NSWCCA 270

Category: Principal judgment
Parties: Rex
Jay Stenner-Wall (Respondent)
Representation:
Counsel:
M Millward (Crown)
E McLaughlin (Respondent)
Solicitors:
Solicitor for the Public Prosecutions (Crown)
Virginia Taylor Partners (Respondent)

File Number(s): 2020/248660, 2020/249639
Publication restriction:  Publication restriction removed – judgment republished
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 September 2022

Before:

Acting Judge Latham

File Number(s):

2020/248660, 2020/249639

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 26 September 2022, Mr Jay Stenner-Wall (“the respondent”) was arraigned in the District Court on an indictment containing 17 counts…

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 Stenner-Wall v R

Details

AGLC: Stenner-Wall v R [2023] NSWCCA 163
Case: [2023] NSWCCA 163
Decision Date: 05 July 2023

CaseChat Overview and Summary

Stenner-Wall was charged with multiple offences, including sexual offences against three female complainants. The respondent appealed to the High Court of Australia against an interlocutory order concerning the admissibility of tendency evidence and the severance of counts. The primary issue was whether the trial judge correctly determined that there were exceptional circumstances that overcame the statutory presumption of significant probative value in relation to certain counts. Additionally, the court needed to decide whether the trial judge erred in concluding that the probative value of the evidence did not outweigh the danger of unfair prejudice.

The High Court found that the trial judge's decision was correct, albeit for different reasons. The court held that even if the counts in question had significant probative value as tendency evidence, the decision to sever was appropriate due to the extreme prejudice in light of the specificity of the tendency notice. The court emphasised that the circumstances of the tendency notice were strictly confined to the complainants indicating that sexual touching and/or digital penetration was unwelcome. As such, the court concluded that the appeal was without merit and dismissed the appeal.

Orders