R v CP [2020] NSWDC 294

R v CP [2020] NSWDC 294

The application to admit tendency evidence of an uncharged act is allowed because, although the Crown could not prove that the accused was not doli incapax at the time of the act, the tendency evidence remains admissible to establish a tendency to have a particular state of mind and act on that state of mind, rather than to establish criminal conduct, and its probative value is not substantially outweighed by its prejudicial effect when appropriately confined and directed.

Jurisdiction
Australia
Judgment Date
12 June 2020
Procedural Posture
Criminal / Interlocutory Ruling on Admissibility of Tendency Evidence
Outcome
Application to rely on tendency evidence allowed (with limitation as to use and subject to doli incapax finding)
Legal Topics
['tendency Evidence' 'doli Incapax' 'admissibility of Uncharged Acts' 'sexual Offences' 'relevance and Probative Value' 'prejudicial Effect' 'section 97 Evidence Act']
['evidence Law' 'criminal Law'] ['tendency Evidence' 'doli Incapax' 'admissibility of Uncharged Acts' 'sexual Offences' 'relevance and Probative Value' 'prejudicial Effect' 'section 97 Evidence Act']

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Procedural Posture

Criminal / Interlocutory Ruling on Admissibility of Tendency Evidence

Legal Issues

  1. 1 ['Whether tendency evidence regarding an uncharged act is admissible where the accused was doli incapax at the time of the act' 'Whether the probative value of the tendency evidence substantially outweighs any prejudicial effect under s 101(2) of the Evidence Act 1995' 'Whether the Crown can rebut the presumption of doli incapax on the balance of probabilities for the uncharged act']

Ratio Decidendi

The application to admit tendency evidence of an uncharged act is allowed because, although the Crown could not prove that the accused was not doli incapax at the time of the act, the tendency evidence remains admissible to establish a tendency to have a particular state of mind and act on that state of mind, rather than to establish criminal conduct, and its probative value is not substantially outweighed by its prejudicial effect when appropriately confined and directed.

Court Disposition

Application to rely on tendency evidence allowed (with limitation as to use and subject to doli incapax finding)

Orders

  • ["The Crown is permitted to rely on the evidence of the complainant with respect to the earlier uncharged incident the subject of its Tendency Notice, subject to the court's finding that the Crown could not satisfy the balance of probabilities that it took place when the accused was not doli incapax."]