R v GM [2016] NSWCCA 78

R v GM [2016] NSWCCA 78

The trial judge erred by applying an incorrect legal test for admissibility of tendency evidence, improperly assessing credibility and reliability, and misapplying the approach to possible contamination or concoction. When applying the correct statutory tests, the evidence had significant probative value, not eroded by plausible competing inferences, and the probative value substantially outweighed any prejudicial effect. Thus, all counts should be heard together and tendency evidence admitted.

Parties
Appellant Crown: Regina; Respondent: GM
Jurisdiction
Australia
Judgment Date
05 May 2016
Procedural Posture
Criminal Appeal / Appeal Against Interlocutory Orders on Admissibility and Severance
Outcome
Appeal allowed; orders of English DCJ quashed; all counts to be heard together; tendency evidence admitted.
Legal Topics
Tendency Evidence, Admissibility of Evidence, Severance of Indictment, Sexual Offences, Probative Value Vs Prejudicial Effect
Criminal Law Evidence Tendency Evidence Admissibility of Evidence Severance of Indictment Sexual Offences Probative Value Vs Prejudicial Effect

Case Brief

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Parties

Regina

Appellant Crown

GM

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Interlocutory Orders on Admissibility and Severance

Legal Issues

  1. 1 Whether the trial judge erred in ordering separate trials for counts relating to different complainants
  2. 2 Whether the trial judge erred in refusing to admit tendency evidence
  3. 3 The correct approach to assessing probative value and prejudicial effect under ss 97 and 101 of the Evidence Act 1995 (NSW)

Ratio Decidendi

The trial judge erred by applying an incorrect legal test for admissibility of tendency evidence, improperly assessing credibility and reliability, and misapplying the approach to possible contamination or concoction. When applying the correct statutory tests, the evidence had significant probative value, not eroded by plausible competing inferences, and the probative value substantially outweighed any prejudicial effect. Thus, all counts should be heard together and tendency evidence admitted.

Court Disposition

Appeal allowed; orders of English DCJ quashed; all counts to be heard together; tendency evidence admitted.

Orders

  • The Crown appeal, pursuant to ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912 be allowed.
  • The orders of English DCJ of 18 March 2015 be quashed.