ES v R (No.1) [2010] NSWCCA 197

ES v R (No.1) [2010] NSWCCA 197

K's evidence of an uncharged incident was admissible, if at all, only as context evidence because the Crown had given no tendency notice, sought no dispensation, and had said it would not lead tendency evidence. Its value as mere context evidence was extremely modest, while its real force was as motive or tendency evidence and therefore unfairly prejudicial. The evidence should not have been admitted, and the trial judge's directions compounded the error by permitting the jury to use it as corroboration. The Court could not be satisfied that no substantial miscarriage of justice occurred, so the proviso was not applied.

Jurisdiction
Australia
Judgment Date
06 September 2010
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From Convictions and Sentences in the District Court
Outcome
Leave to appeal granted; appeal allowed; convictions and sentences quashed; new trial directed.
Legal Topics
['sexual Assault of a Child' 'uncharged Acts Evidence' 'tendency Evidence' 'context Evidence' 'unfair Prejudice' 'jury Directions' 'proviso' 'new Trial']
['criminal Law' 'evidence' 'criminal Appeals'] ['sexual Assault of a Child' 'uncharged Acts Evidence' 'tendency Evidence' 'context Evidence' 'unfair Prejudice' 'jury Directions' 'proviso' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From Convictions and Sentences in the District Court

Legal Issues

  1. 1 ["Whether the trial judge erred in admitting K's evidence of an uncharged incident involving the appellant and the complainant." "Whether the trial judge failed to adequately direct, or misdirected, the jury about K's evidence." 'Whether other evidence of uncharged misconduct was wrongly admitted or inadequately dealt with.' 'Whether the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied.' 'Whether a new trial should be ordered rather than a verdict of acquittal.']

Ratio Decidendi

K's evidence of an uncharged incident was admissible, if at all, only as context evidence because the Crown had given no tendency notice, sought no dispensation, and had said it would not lead tendency evidence. Its value as mere context evidence was extremely modest, while its real force was as motive or tendency evidence and therefore unfairly prejudicial. The evidence should not have been admitted, and the trial judge's directions compounded the error by permitting the jury to use it as corroboration. The Court could not be satisfied that no substantial miscarriage of justice occurred, so the proviso was not applied.

Court Disposition

Leave to appeal granted; appeal allowed; convictions and sentences quashed; new trial directed.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Convictions and sentences quashed.' 'Direct that there be a new trial.']