BM v R [2017] NSWCCA 253

BM v R [2017] NSWCCA 253

Leave was refused because the applicant did not establish House v The King error. The trial judge's conclusion that the complainants' evidence was admissible as tendency evidence and that separate trials should not be ordered was open. The evidence did not disclose a competing inference of concoction or contamination sufficient to deprive the tendency evidence of significant probative value, and the alleged DoCS motive did not provide a real basis for concoction. The trial judge expressly considered s 101 and was entitled to find that the significant probative value of the evidence substantially outweighed any prejudicial effect, with any risk capable of being addressed by directions.

Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Criminal Appeal Against Interlocutory Order / Application for Leave to Appeal Pursuant to S 5 F(3) of the Criminal Appeal Act 1912 (nsw) From Refusal of Separate Trials and Ruling Admitting Tendency Evidence
Outcome
Leave to appeal refused.
Legal Topics
['interlocutory Appeal' 'separate Trials' 'tendency Evidence' 'concoction or Contamination' 'unfair Prejudice' 'sexual Offences Against Child Complainants']
['criminal Law' 'evidence' 'criminal Procedure'] ['interlocutory Appeal' 'separate Trials' 'tendency Evidence' 'concoction or Contamination' 'unfair Prejudice' 'sexual Offences Against Child Complainants']

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Procedural Posture

Criminal Appeal Against Interlocutory Order / Application for Leave to Appeal Pursuant to S 5 F(3) of the Criminal Appeal Act 1912 (nsw) From Refusal of Separate Trials and Ruling Admitting Tendency Evidence

Legal Issues

  1. 1 ['Whether leave should be granted to appeal against the interlocutory order refusing separate trials.' 'Whether the trial judge erred in ruling that the evidence of each of the three complainants was admissible as tendency evidence under s 97 of the Evidence Act 1995 (NSW).' 'Whether evidence of possible concoction or contamination gave rise to a competing inference sufficient to deprive the tendency evidence of significant probative value.' 'Whether the trial judge erred under s 101 of the Evidence Act 1995 (NSW) in finding that the probative value of the tendency evidence substantially outweighed any prejudicial effect.' 'Whether the trial judge erred in finding no unfair prejudice arose from a joint trial.']

Ratio Decidendi

Leave was refused because the applicant did not establish House v The King error. The trial judge's conclusion that the complainants' evidence was admissible as tendency evidence and that separate trials should not be ordered was open. The evidence did not disclose a competing inference of concoction or contamination sufficient to deprive the tendency evidence of significant probative value, and the alleged DoCS motive did not provide a real basis for concoction. The trial judge expressly considered s 101 and was entitled to find that the significant probative value of the evidence substantially outweighed any prejudicial effect, with any risk capable of being addressed by directions.

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.']