ES v R (No.2) [2010] NSWCCA 198

ES v R (No.2) [2010] NSWCCA 198

Leave under Criminal Appeal Rules r 4 was refused because, although aspects of the admission and directions concerning uncharged acts evidence were problematic and some directions were erroneous, the evidence was not objected to at trial, no further directions were sought, parts of the evidence were admissible as context evidence, the defence used some of the challenged evidence in the conduct of the trial, and the cumulative matters did not establish a miscarriage of justice in what the Court regarded as a strong Crown case.

Jurisdiction
Australia
Judgment Date
06 September 2010
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal in the New South Wales Court of Criminal Appeal
Outcome
To the extent necessary, leave to appeal against conviction granted; leave to rely on points not taken below refused; appeal dismissed.
Legal Topics
['appeal Against Conviction' 'sexual Assault of a Child' 'uncharged Acts Evidence' 'context Evidence' 'tendency Evidence' 'character Evidence' 'jury Directions' 'rule 4 Points Not Taken at Trial']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'sexual Assault of a Child' 'uncharged Acts Evidence' 'context Evidence' 'tendency Evidence' 'character Evidence' 'jury Directions' 'rule 4 Points Not Taken at Trial']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether generalised evidence of alleged ongoing sexual misconduct was admissible.' 'Whether evidence of two specific uncharged acts and surrounding circumstances was admissible.' "Whether evidence about a telephone call to the complainant's mobile phone was admissible." 'Whether the trial judge failed to give adequate directions or misdirected the jury about the use of uncharged acts evidence.' 'Whether leave should be granted under Criminal Appeal Rules r 4 to rely on points not taken at trial.' 'Whether evidence that the appellant had no conviction for sexual assault made evidence of uncharged acts admissible as character evidence.']

Ratio Decidendi

Leave under Criminal Appeal Rules r 4 was refused because, although aspects of the admission and directions concerning uncharged acts evidence were problematic and some directions were erroneous, the evidence was not objected to at trial, no further directions were sought, parts of the evidence were admissible as context evidence, the defence used some of the challenged evidence in the conduct of the trial, and the cumulative matters did not establish a miscarriage of justice in what the Court regarded as a strong Crown case.

Court Disposition

To the extent necessary, leave to appeal against conviction granted; leave to rely on points not taken below refused; appeal dismissed.

Orders

  • ['To the extent necessary, leave to appeal against conviction granted.' 'Leave to rely on points not taken below refused, and appeal dismissed.']