R v RM [2009] NSWDC 253

R v RM [2009] NSWDC 253

The tendency evidence concerning each particular game had high probative value for counts concerning that same game, was reasonably contemporaneous, involved distinctive conduct and circumstances, and was not affected by any reasonable possibility of concoction; its probative value substantially outweighed prejudice. Evidence of one game in relation to a different game did not satisfy s 101(2). Nonetheless, the potential unfairness from trying the counts together could be neutralised by appropriate jury directions, so the application to separate the trials was refused.

Jurisdiction
Australia
Judgment Date
26 March 2009
Procedural Posture
Criminal Proceedings on Indictment Involving Alleged Sexual Offences; Application Concerning Tendency Evidence and Separate Trials / Pre Trial Voir Dire/application for Separate Trials
Outcome
Application to separate the trials refused.
Legal Topics
['separate Trials' 'tendency Evidence' 'probative Value' 'prejudicial Effect' 'possibility of Concoction' 'sexual Offences']
['criminal Law' 'evidence' 'criminal Procedure'] ['separate Trials' 'tendency Evidence' 'probative Value' 'prejudicial Effect' 'possibility of Concoction' 'sexual Offences']

Case Brief

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Procedural Posture

Criminal Proceedings on Indictment Involving Alleged Sexual Offences; Application Concerning Tendency Evidence and Separate Trials / Pre Trial Voir Dire/application for Separate Trials

Legal Issues

  1. 1 ['Whether evidence relating to each alleged game was admissible as tendency evidence in relation to other counts.' 'Whether tendency evidence had significant probative value despite the asserted reasonable possibility of concoction.' 'Whether the probative value of prosecution tendency evidence substantially outweighed any prejudicial effect on the accused.' 'Whether the counts should be separated into multiple trials.']

Ratio Decidendi

The tendency evidence concerning each particular game had high probative value for counts concerning that same game, was reasonably contemporaneous, involved distinctive conduct and circumstances, and was not affected by any reasonable possibility of concoction; its probative value substantially outweighed prejudice. Evidence of one game in relation to a different game did not satisfy s 101(2). Nonetheless, the potential unfairness from trying the counts together could be neutralised by appropriate jury directions, so the application to separate the trials was refused.

Court Disposition

Application to separate the trials refused.

Orders

  • ['Pursuant to s 100 of the Evidence Act 1995, the requirement of written notice for the cold shower tendency evidence was dispensed with.' 'Evidence of one game will not be admitted as tendency evidence in relation to a charge alleging another game.' 'The application to separate the trials is refused.']