R v IW [2021] NSWDC 789

R v IW [2021] NSWDC 789

The evidence from the complainants is admissible as tendency evidence because s 97A of the Evidence Act 1995 (NSW) applies to sexual offences against children even where the specific offence of buggery has been repealed, and the probative value of the evidence outweighs the danger of unfair prejudice. However, evidence of the uncharged act alleged to have occurred when the accused was under the age of 14 cannot be adduced as tendency or context evidence due to the operation of the presumption of doli incapax and the risk of unfair prejudice.

Jurisdiction
Australia
Judgment Date
16 November 2021
Procedural Posture
Criminal / Interlocutory Ruling on Admissibility of Tendency and Context Evidence
Outcome
Tendency evidence admitted; evidence of uncharged act excluded
Legal Topics
['tendency Evidence' 'historical Child Sexual Offences' 'doli Incapax' 'probative Value' 'unfair Prejudice' 'section 97 a of Evidence Act 1995']
['criminal Law' 'evidence'] ['tendency Evidence' 'historical Child Sexual Offences' 'doli Incapax' 'probative Value' 'unfair Prejudice' 'section 97 a of Evidence Act 1995']

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Procedural Posture

Criminal / Interlocutory Ruling on Admissibility of Tendency and Context Evidence

Legal Issues

  1. 1 ['Whether tendency evidence relating to acts of buggery against child complainants is admissible under s 97A of the Evidence Act 1995 (NSW)' 'Whether s 97A applies to acts of buggery given repeal of the offence' 'Whether the uncharged act involving a doli incapax child can be adduced as tendency or context evidence' 'Whether the probative value of the evidence outweighs the danger of unfair prejudice']

Ratio Decidendi

The evidence from the complainants is admissible as tendency evidence because s 97A of the Evidence Act 1995 (NSW) applies to sexual offences against children even where the specific offence of buggery has been repealed, and the probative value of the evidence outweighs the danger of unfair prejudice. However, evidence of the uncharged act alleged to have occurred when the accused was under the age of 14 cannot be adduced as tendency or context evidence due to the operation of the presumption of doli incapax and the risk of unfair prejudice.

Court Disposition

Tendency evidence admitted; evidence of uncharged act excluded

Orders

  • ['Tendency evidence is admissible: the probative value outweighs the danger of unfair prejudice to the defendant.' 'Evidence of the uncharged act relating to the period when the accused was under 14 years is excluded and cannot be led as tendency or context evidence.']