R v S.I.M [2020] NSWDC 503

R v S.I.M [2020] NSWDC 503

The evidence of each count is admissible as coincidence evidence in respect of the others due to the probative value of the circumstances (same time, location, complainants known to each other and the accused, similar manner), which substantially outweighs unfair prejudice. Thus, it is not in the interests of justice to order separate trials, and the application for severance is dismissed. Transaction and tendency arguments are rejected. Admissibility of the complainant's sexual activity with a third party is approved for its probative value relating to identity and credit.

Parties
Prosecution: Regina (Crown); Accused: S.I.M
Jurisdiction
Australia
Judgment Date
02 September 2020
Procedural Posture
Criminal / Separate Trial Application on Indictment for Sexual Offences
Outcome
Separate trial application dismissed; evidence admitted as coincidence evidence; evidence of sexual activity between complainant and third party admitted.
Legal Topics
Sexual Offences, Separate Trial Application, Joinder and Severance, Coincidence Evidence, Tendency Evidence, Admissibility of Evidence
Criminal Law Sexual Offences Separate Trial Application Joinder and Severance Coincidence Evidence Tendency Evidence Admissibility of Evidence

Case Brief

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Parties

Regina (Crown)

Prosecution

S.I.M

Accused

Procedural Posture

Criminal / Separate Trial Application on Indictment for Sexual Offences

Legal Issues

  1. 1 Whether counts of sexual intercourse without consent should be severed for separate trials
  2. 2 Whether evidence is cross-admissible under transaction, coincidence or tendency principles
  3. 3 Whether evidence of sexual activity by complainant with third party is admissible

Ratio Decidendi

The evidence of each count is admissible as coincidence evidence in respect of the others due to the probative value of the circumstances (same time, location, complainants known to each other and the accused, similar manner), which substantially outweighs unfair prejudice. Thus, it is not in the interests of justice to order separate trials, and the application for severance is dismissed. Transaction and tendency arguments are rejected. Admissibility of the complainant's sexual activity with a third party is approved for its probative value relating to identity and credit.

Court Disposition

Separate trial application dismissed; evidence admitted as coincidence evidence; evidence of sexual activity between complainant and third party admitted.

Orders

  • The accused's application for count 1 to be heard separately to counts 2, 3, and 4 is dismissed.
  • The evidence of count 1 is admissible in the trial of counts 2, 3, and 4 as coincidence evidence, not as tendency evidence.