R v SHULTZ, Allen Edwin [2016] NSWDC 392

R v SHULTZ, Allen Edwin [2016] NSWDC 392

The Crown's tendency evidence was inadmissible. Although the tendency notice was not so defective as to justify exclusion in limine, the evidence did not have the significant probative value required by s 97 because of the dissimilarities between the alleged conduct, the equivocal character of some alleged touching, and the differing surrounding circumstances. Even if parts of the evidence had significant probative value, that probative value would not substantially outweigh the prejudicial effect under s 101 because the jury would have to isolate only limited parts of each complainant's evidence for tendency purposes while considering other evidence only on individual counts, creating a...

Jurisdiction
Australia
Judgment Date
08 September 2016
Procedural Posture
Criminal / Determination of Motion Seeking That Tendency Evidence Relied Upon by the Crown Be Ruled Inadmissible and Excluded From All Trials
Outcome
Tendency evidence inadmissible.
Legal Topics
['admissibility of Tendency Evidence' 'complaint Evidence' 'indecent Assault Allegations Involving Child Complainants' 'probative Value' 'prejudicial Effect']
['criminal Law' 'evidence'] ['admissibility of Tendency Evidence' 'complaint Evidence' 'indecent Assault Allegations Involving Child Complainants' 'probative Value' 'prejudicial Effect']

Case Brief

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Procedural Posture

Criminal / Determination of Motion Seeking That Tendency Evidence Relied Upon by the Crown Be Ruled Inadmissible and Excluded From All Trials

Legal Issues

  1. 1 ["Whether the Crown's tendency notice was defective such that the matter should be ruled upon in limine." 'Whether the evidence relied upon by the Crown had significant probative value for the purposes of s 97 of the Evidence Act 1995.' 'Whether, if any tendency evidence had significant probative value, its probative value substantially outweighed any prejudicial effect under s 101 of the Evidence Act 1995.' 'Whether evidence of one complainant should be admitted to prove tendencies relevant to allegations made by the other complainant.']

Ratio Decidendi

The Crown's tendency evidence was inadmissible. Although the tendency notice was not so defective as to justify exclusion in limine, the evidence did not have the significant probative value required by s 97 because of the dissimilarities between the alleged conduct, the equivocal character of some alleged touching, and the differing surrounding circumstances. Even if parts of the evidence had significant probative value, that probative value would not substantially outweigh the prejudicial effect under s 101 because the jury would have to isolate only limited parts of each complainant's evidence for tendency purposes while considering other evidence only on individual counts, creating a...

Court Disposition

Tendency evidence inadmissible.

Orders

  • ['The Court declined to permit evidence of one complainant to be admissible for the purpose of proving the relevant tendency or tendencies identified in the tendency notice in respect of allegations made by the other complainant.']