R v Cresnar [2019] NSWDC 625

R v Cresnar [2019] NSWDC 625

The asserted tendencies did not have significant probative value because they were not relevant to count 1, there were no close similarities between the conduct alleged in count 1 and count 2, and the evidence did not strongly support proof of the asserted tendency or strongly support proof of a fact making up the offence charged. Accordingly, the tendency evidence was not cross-admissible between counts.

Jurisdiction
Australia
Judgment Date
29 October 2019
Procedural Posture
Criminal Proceeding / Judge Alone Trial Ruling on Crown Application to Adduce Tendency Evidence and Seek Cross Admissibility Between Counts
Outcome
The Crown application to adduce tendency evidence was refused.
Legal Topics
['tendency Evidence' 'cross Admissibility' 'significant Probative Value' 'identity Evidence' 'judge Alone Trial']
['criminal Procedure' 'evidence'] ['tendency Evidence' 'cross Admissibility' 'significant Probative Value' 'identity Evidence' 'judge Alone Trial']

Case Brief

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Procedural Posture

Criminal Proceeding / Judge Alone Trial Ruling on Crown Application to Adduce Tendency Evidence and Seek Cross Admissibility Between Counts

Legal Issues

  1. 1 ["Whether the Crown's proposed tendency evidence was admissible under s 97(1) of the Evidence Act." 'Whether the probative value of the prosecution tendency evidence substantially outweighed any prejudicial effect under s 101(2) of the Evidence Act.' 'Whether the asserted tendencies were relevant to count 1 and had significant probative value for cross-admissibility between counts.' 'Whether close similarities existed between count 1 and count 2, particularly where count 2 raised identity as an issue.']

Ratio Decidendi

The asserted tendencies did not have significant probative value because they were not relevant to count 1, there were no close similarities between the conduct alleged in count 1 and count 2, and the evidence did not strongly support proof of the asserted tendency or strongly support proof of a fact making up the offence charged. Accordingly, the tendency evidence was not cross-admissible between counts.

Court Disposition

The Crown application to adduce tendency evidence was refused.

Orders

  • ['The application to adduce tendency in accordance with the tendency notice is refused.']