R v AA [2020] NSWDC 362

R v AA [2020] NSWDC 362

Evidence of the complainant in support of the charged counts is admissible as cross-admissible tendency evidence to establish that the accused had a tendency to be sexually attracted to the complainant, and a tendency to act upon that attraction, because the evidence has significant probative value per Bauer and Hughes. Uncharged acts are not admissible as tendency evidence but may be admitted as context. Other evidence (sexual interest in young males, acts with LL or KK, or later pornography-related conduct) does not have significant probative value to support tendency in the elements of the offences charged and is inadmissible for that purpose under s 101 of the Evidence Act 1995.

Jurisdiction
Australia
Judgment Date
23 April 2020
Procedural Posture
Criminal / Pre Trial Interlocutory, Admissibility of Evidence (tendency)
Outcome
Tendency evidence as identified by the Crown in 'Tendency Notice' and described as 'Cross Admissible' is admitted. Evidence of 'Uncharged Acts' is not admissible as tendency evidence but is admitted as context/relationship evidence. 'Other Evidence' described in the notice is not admitted as tendency evidence.
Legal Topics
['tendency Evidence' 'admissibility of Evidence' 'sexual Offences' 'interlocutory Orders']
['criminal Law' 'evidence'] ['tendency Evidence' 'admissibility of Evidence' 'sexual Offences' 'interlocutory Orders']

Case Brief

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Procedural Posture

Criminal / Pre Trial Interlocutory, Admissibility of Evidence (tendency)

Legal Issues

  1. 1 ['Whether tendency evidence may be admitted as cross-admissible between counts under s 97 and s 101 of the Evidence Act 1995' 'Whether evidence of uncharged acts is admissible as tendency or only as context/relationship evidence' "Whether 'other evidence' concerning sexual interest or acts can be admitted as tendency evidence" 'Balancing probative value and prejudicial effect under s 101']

Ratio Decidendi

Evidence of the complainant in support of the charged counts is admissible as cross-admissible tendency evidence to establish that the accused had a tendency to be sexually attracted to the complainant, and a tendency to act upon that attraction, because the evidence has significant probative value per Bauer and Hughes. Uncharged acts are not admissible as tendency evidence but may be admitted as context. Other evidence (sexual interest in young males, acts with LL or KK, or later pornography-related conduct) does not have significant probative value to support tendency in the elements of the offences charged and is inadmissible for that purpose under s 101 of the Evidence Act 1995.

Court Disposition

Tendency evidence as identified by the Crown in 'Tendency Notice' and described as 'Cross Admissible' is admitted. Evidence of 'Uncharged Acts' is not admissible as tendency evidence but is admitted as context/relationship evidence. 'Other Evidence' described in the notice is not admitted as tendency evidence.

Orders

  • ["Evidence identified by the Crown in its 'Tendency Notice' as 'Cross Admissible' is admitted as relevant tendency evidence." "Evidence of 'Uncharged Acts' is not admitted as tendency evidence, but is available as evidence of context or relationship." "'Other Evidence' described in the Crown's notice is not admitted...