Zammit v R [2016] NSWCCA 293

Zammit v R [2016] NSWCCA 293

The trial judge did not commit House v The King error in refusing to sever count 8 from counts 1-7. On the evidentiary rulings then made, the evidence of CP and MS and other tendency evidence was cross-admissible and had significant probative value on whether the charged incidents occurred, because it supported an alleged tendency of the applicant to have and act upon a sexual interest in daughters under his parental authority. The asserted distinction between "child sex" and "adult sex" allegations was artificial in light of the similarities, including allegations of rubbing his penis against daughters and masturbating in their presence. No particular prejudice beyond that ordinarily...

Jurisdiction
Australia
Judgment Date
09 December 2016
Procedural Posture
Criminal Appeal Application Under S 5 F of the Criminal Appeal Act 1912 (nsw) / Application for Leave to Appeal From the District Court's Refusal to Order Separate Trials; Leave Granted and Appeal Determined
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['indecent Assault' 'separate Trials' 'severance of Counts' 'tendency Evidence' 'context Evidence' 'cross Admissibility' 'unfair Prejudice' 's 5 F Appeal']
['criminal Law' 'evidence' 'criminal Procedure'] ['indecent Assault' 'separate Trials' 'severance of Counts' 'tendency Evidence' 'context Evidence' 'cross Admissibility' 'unfair Prejudice' 's 5 F Appeal']

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Procedural Posture

Criminal Appeal Application Under S 5 F of the Criminal Appeal Act 1912 (nsw) / Application for Leave to Appeal From the District Court's Refusal to Order Separate Trials; Leave Granted and Appeal Determined

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the refusal to order separate trials.' 'Whether the trial judge erred in refusing to sever count 8, relating to MS, from counts 1-7, relating to CP.' 'Whether the cross-admissibility of tendency and context evidence provided a proper basis for refusing separate trials.' 'Whether trying the alleged "child sex" and "adult sex" type allegations together created prejudice amounting to positive injustice or made the refusal unreasonable.']

Ratio Decidendi

The trial judge did not commit House v The King error in refusing to sever count 8 from counts 1-7. On the evidentiary rulings then made, the evidence of CP and MS and other tendency evidence was cross-admissible and had significant probative value on whether the charged incidents occurred, because it supported an alleged tendency of the applicant to have and act upon a sexual interest in daughters under his parental authority. The asserted distinction between "child sex" and "adult sex" allegations was artificial in light of the similarities, including allegations of rubbing his penis against daughters and masturbating in their presence. No particular prejudice beyond that ordinarily...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']