R v SE [2020] NSWDC 951

R v SE [2020] NSWDC 951

Ms Larritt's evidence was capable of establishing the Crown's alleged tendencies and, by operation of s 97A, had significant probative value. The Court was not satisfied that there were sufficient grounds to determine otherwise, and the matters that might reduce probative value were largely precluded by s 97A(5). The Court was also not satisfied that the evidence demonstrated unfair prejudice to the accused under s 101, because it remained open to the accused to argue to the jury that the conduct was ordinary affectionate interaction rather than evidence of sexual interest.

Jurisdiction
Australia
Judgment Date
20 October 2020
Procedural Posture
Criminal Proceedings Involving Child Sexual Assault Offences / Admissibility Ruling on Tendency Evidence at Continued Trial
Outcome
Evidence admissible as tendency evidence pursuant to s 97A of the Evidence Act 1995 (NSW).
Legal Topics
['tendency Evidence' 'child Sexual Assault Offences' 'sexual Intercourse With a Child Under 10' 'sexually Touching a Child Aged Between 10 and 16' 'indecent Assault' 'unfair Prejudice']
['criminal Law' 'evidence'] ['tendency Evidence' 'child Sexual Assault Offences' 'sexual Intercourse With a Child Under 10' 'sexually Touching a Child Aged Between 10 and 16' 'indecent Assault' 'unfair Prejudice']

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Procedural Posture

Criminal Proceedings Involving Child Sexual Assault Offences / Admissibility Ruling on Tendency Evidence at Continued Trial

Legal Issues

  1. 1 ['Whether evidence from Kellyn Larritt was admissible as tendency evidence pursuant to s 97A of the Evidence Act 1995 (NSW).' 'Whether the danger of unfair prejudice to the accused outweighed the probative value of the evidence under s 101 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Ms Larritt's evidence was capable of establishing the Crown's alleged tendencies and, by operation of s 97A, had significant probative value. The Court was not satisfied that there were sufficient grounds to determine otherwise, and the matters that might reduce probative value were largely precluded by s 97A(5). The Court was also not satisfied that the evidence demonstrated unfair prejudice to the accused under s 101, because it remained open to the accused to argue to the jury that the conduct was ordinary affectionate interaction rather than evidence of sexual interest.

Court Disposition

Evidence admissible as tendency evidence pursuant to s 97A of the Evidence Act 1995 (NSW).

Orders

  • ["The Court allowed evidence to be called from paragraphs 7 to 11 of Ms Larritt's statement, in appropriate form, to prove the asserted tendencies."]