R v Tan [2023] NSWDC 227

R v Tan [2023] NSWDC 227

The accused's ERISP statements about difficulty controlling sexual needs and sex addiction were substantially probative of state of mind and decision-making in light of the defence of honest and reasonable mistaken belief about the complainant's age, and any danger of unfair prejudice did not warrant exclusion in a judge-alone trial. The Crown-impugned ERISP passages about the complainant allegedly sending sexual images or having relationships with other men were relevant but fell within the proscription in s 294CB(3); they did not relate to the relationship between the accused and complainant for s 294CB(4)(b), and were not sufficiently connected to the circumstances of the offences for...

Jurisdiction
Australia
Judgment Date
14 June 2023
Procedural Posture
Criminal Trial by Judge Alone on Indictment / Evidentiary Rulings After Arraignment and Pleas of Not Guilty
Outcome
Mixed evidentiary rulings: the accused's objections to parts of his ERISP failed; the Crown's objections to other ERISP passages succeeded; the Tik Tok screenshot was admissible; the proposed JIRT evidence was inadmissible.
Legal Topics
['admissibility of ERISP Evidence' 'exclusion Under S 137 of the Evidence Act 1995 (nsw)' 'restrictive Admissibility Rules Under S 294 CB of the Criminal Procedure Act 1986 (nsw)' 'tendency Evidence' 'tik Tok Screenshot Evidence' 'jirt Interview Evidence']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of ERISP Evidence' 'exclusion Under S 137 of the Evidence Act 1995 (nsw)' 'restrictive Admissibility Rules Under S 294 CB of the Criminal Procedure Act 1986 (nsw)' 'tendency Evidence' 'tik Tok Screenshot Evidence' 'jirt Interview Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Trial by Judge Alone on Indictment / Evidentiary Rulings After Arraignment and Pleas of Not Guilty

Legal Issues

  1. 1 ["Whether portions of the accused's ERISP should be excluded under s 137 of the Evidence Act 1995 (NSW)." "Whether portions of the accused's ERISP impugned by the Crown were inadmissible under s 294CB of the Criminal Procedure Act 1986 (NSW)." 'Whether a screenshot of the complainant on a Tik Tok video was admissible.' "Whether content from the complainant's JIRT interview was admissible where the complainant was not to be called."]

Ratio Decidendi

The accused's ERISP statements about difficulty controlling sexual needs and sex addiction were substantially probative of state of mind and decision-making in light of the defence of honest and reasonable mistaken belief about the complainant's age, and any danger of unfair prejudice did not warrant exclusion in a judge-alone trial. The Crown-impugned ERISP passages about the complainant allegedly sending sexual images or having relationships with other men were relevant but fell within the proscription in s 294CB(3); they did not relate to the relationship between the accused and complainant for s 294CB(4)(b), and were not sufficiently connected to the circumstances of the offences for...

Court Disposition

Mixed evidentiary rulings: the accused's objections to parts of his ERISP failed; the Crown's objections to other ERISP passages succeeded; the Tik Tok screenshot was admissible; the proposed JIRT evidence was inadmissible.

Orders

  • ["The accused's challenge to the admissibility of ERISP passages Q377-A382, A383-Q400, A464-A475 and Q510-A513 fails." "The portions of the accused's ERISP impugned by the Crown are inadmissible under s 294CB(3) of the Criminal Procedure Act 1986 (NSW)." 'The Tik Tok screenshot is admissible; the notice requirement...