BC v R [2015] NSWCCA 327

BC v R [2015] NSWCCA 327

The majority held that no material error was shown in the trial judge's refusal to sever the indictment. The trial judge was entitled to find that the alleged conduct, considered with the whole body of Crown evidence, had significant probative value as tendency evidence because it disclosed common features including young complainants, opportunistic conduct, a position of trust, requests for consent or compliance, and sexual touching progressing in some cases to oral sexual activity. The applicant did not identify a particular unfair prejudice beyond the ordinary risk of misuse inherent in tendency evidence, which could be addressed by directions. The doli incapax issue for counts 1 to 3...

Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Criminal Appeal; Application for Leave to Appeal Under S 5 F(3) of the Criminal Appeal Act 1912 (nsw) From Refusal to Order Separate Trials / Leave to Appeal Granted; Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['tendency Evidence' 'separate Trials' 'severance of Indictment' 'sexual Offences Against Children' 'doli Incapax' 'concoction or Contamination' 'unfair Prejudice']
['criminal Law' 'evidence' 'criminal Procedure'] ['tendency Evidence' 'separate Trials' 'severance of Indictment' 'sexual Offences Against Children' 'doli Incapax' 'concoction or Contamination' 'unfair Prejudice']

Case Brief

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Procedural Posture

Criminal Appeal; Application for Leave to Appeal Under S 5 F(3) of the Criminal Appeal Act 1912 (nsw) From Refusal to Order Separate Trials / Leave to Appeal Granted; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the evidence relating to each set of sexual assault counts was admissible as tendency evidence in relation to the other counts.' 'Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect under s 101(2) of the Evidence Act 1995 (NSW).' 'Whether the allegations were sufficiently similar to have significant probative value under s 97(1)(b) of the Evidence Act 1995 (NSW).' 'Whether the possibility of concoction or contamination between complainants B and C required exclusion of the tendency evidence or separate trials.' 'Whether the issue of doli incapax in relation to counts 1 to 3 required severance from the other counts.']

Ratio Decidendi

The majority held that no material error was shown in the trial judge's refusal to sever the indictment. The trial judge was entitled to find that the alleged conduct, considered with the whole body of Crown evidence, had significant probative value as tendency evidence because it disclosed common features including young complainants, opportunistic conduct, a position of trust, requests for consent or compliance, and sexual touching progressing in some cases to oral sexual activity. The applicant did not identify a particular unfair prejudice beyond the ordinary risk of misuse inherent in tendency evidence, which could be addressed by directions. The doli incapax issue for counts 1 to 3...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

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