R v BP [2019] NSWDC 112

R v BP [2019] NSWDC 112

The evidence of the Queensland incident involving the same complainant, similar conduct, and a six-year gap has significant probative value within the meaning of s97(1)(b) of the Evidence Act 1995, as the temporal disconnect does not, in the circumstances, diminish the similarity and probative force of the evidence to the required threshold. The probative value substantially outweighs any prejudicial effect to the accused, particularly when evidence is also admitted for other purposes, and there is no substantiated risk of concoction or collusion. Thus, the tendency evidence is admissible.

Parties
Crown: Regina; Accused: BP
Jurisdiction
Australia
Judgment Date
04 April 2019
Procedural Posture
Criminal / Ruling on Admissibility of Tendency Evidence (pre Trial/interlocutory)
Outcome
Tendency evidence allowed
Legal Topics
Tendency Evidence, Probative Value, Sexual Offences, Temporal Disconnect Between Acts, Uncharged Act Admissibility
Criminal Law Evidence Tendency Evidence Probative Value Sexual Offences Temporal Disconnect Between Acts Uncharged Act Admissibility

Case Brief

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Parties

Regina

Crown

BP

Accused

Procedural Posture

Criminal / Ruling on Admissibility of Tendency Evidence (pre Trial/interlocutory)

Legal Issues

  1. 1 Whether the evidence of an uncharged act (the Queensland incident) is admissible as tendency evidence under s97 of the Evidence Act 1995
  2. 2 Whether the probative value of the uncharged act evidence substantially outweighs its prejudicial effect under s101 of the Evidence Act 1995
  3. 3 Whether the temporal disconnect (six years) between charged and uncharged acts diminishes the probative value to the point of inadmissibility

Ratio Decidendi

The evidence of the Queensland incident involving the same complainant, similar conduct, and a six-year gap has significant probative value within the meaning of s97(1)(b) of the Evidence Act 1995, as the temporal disconnect does not, in the circumstances, diminish the similarity and probative force of the evidence to the required threshold. The probative value substantially outweighs any prejudicial effect to the accused, particularly when evidence is also admitted for other purposes, and there is no substantiated risk of concoction or collusion. Thus, the tendency evidence is admissible.

Court Disposition

Tendency evidence allowed

Orders

  • The Crown is permitted to adduce evidence of the Queensland incident as tendency evidence.
  • Evidence of the Queensland incident is admissible and may be cross-admissible between both counts on the indictment.