R v NB [2024] NSWDC 230

R v NB [2024] NSWDC 230

The Court dispensed with the requirement for timely service of the tendency notice under s 97(1)(a) Evidence Act 1995 (NSW) because the evidence had significant probative value, the accused had reasonable opportunity to respond, there was no persuasive articulation of material unfairness or prejudice, and the statutory and common law factors favoured the exercise of the Court’s dispensing power despite the Crown’s delay.

Parties
Prosecution: Office of the Director of Public Prosecutions (ODPP); Accused: NB
Jurisdiction
Australia
Judgment Date
12 June 2024
Procedural Posture
Criminal Proceeding / Interlocutory Procedural Ruling Before Jury Trial
Outcome
Application to dispense with requirement of timely tendency notice granted.
Legal Topics
Tendency Evidence, Service of Tendency Notice, Dispensing Power, Procedural Fairness
Criminal Law Evidence Law Tendency Evidence Service of Tendency Notice Dispensing Power Procedural Fairness

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Parties

Office of the Director of Public Prosecutions (ODPP)

Prosecution

NB

Accused

Procedural Posture

Criminal Proceeding / Interlocutory Procedural Ruling Before Jury Trial

Legal Issues

  1. 1 Whether the Court should dispense with the requirement for timely service of a tendency notice under s 97(1)(a) Evidence Act 1995 (NSW) in a child sexual offence trial

Ratio Decidendi

The Court dispensed with the requirement for timely service of the tendency notice under s 97(1)(a) Evidence Act 1995 (NSW) because the evidence had significant probative value, the accused had reasonable opportunity to respond, there was no persuasive articulation of material unfairness or prejudice, and the statutory and common law factors favoured the exercise of the Court’s dispensing power despite the Crown’s delay.

Court Disposition

Application to dispense with requirement of timely tendency notice granted.

Orders

  • Paragraph 97(1)(a) of the Evidence Act does not apply to the tendency evidence which is the subject of the tendency notice dated 16 May 2024 notwithstanding the Crown's failure to give notice no less than 6 weeks prior to the readiness hearing fixed for 4 April 2024.