Vagg v R [2020] NSWCCA 134

Vagg v R [2020] NSWCCA 134

Although the first incident involving MF alone did not sufficiently support the asserted sexual tendency, when considered with the second incident, including exposure of the applicant's penis, MF's evidence supported a tendency in the applicant to have a sexual interest in young girls and to act on that interest. Given that both identity and the fact of commission of the offences were in issue, the tendency evidence had significant probative value and was likely to be influential in determining whether the applicant committed the charged offences. Its probative value substantially outweighed its prejudicial effect, particularly in circumstances where no complaint was made about the trial...

Jurisdiction
Australia
Judgment Date
24 June 2020
Procedural Posture
Criminal Conviction Appeal / Application for Extension of Time and Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Time for filing a notice of appeal extended; appeal dismissed.
Legal Topics
['tendency Evidence' 'child Sexual Offences' 'sexual Intercourse With a Child Under 10' 'significant Probative Value' 'prejudicial Effect' 'extension of Time to Appeal' 'miscarriage of Justice']
['criminal Law' 'evidence' 'criminal Procedure'] ['tendency Evidence' 'child Sexual Offences' 'sexual Intercourse With a Child Under 10' 'significant Probative Value' 'prejudicial Effect' 'extension of Time to Appeal' 'miscarriage of Justice']

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Procedural Posture

Criminal Conviction Appeal / Application for Extension of Time and Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether time for filing a notice of appeal should be extended.' 'Whether the evidence of MF supported the existence of a tendency in the applicant to have a sexual interest in young girls under the age of 10.' 'Whether the evidence of MF supported the existence of a tendency in the applicant to act on that sexual interest.' 'Whether the tendency evidence had significant probative value under s 97(1) of the Evidence Act 1995 (NSW).' 'Whether the probative value of the tendency evidence substantially outweighed its prejudicial effect under s 101(2) of the Evidence Act 1995 (NSW).' 'Whether admission of the tendency evidence gave rise to a miscarriage of justice.']

Ratio Decidendi

Although the first incident involving MF alone did not sufficiently support the asserted sexual tendency, when considered with the second incident, including exposure of the applicant's penis, MF's evidence supported a tendency in the applicant to have a sexual interest in young girls and to act on that interest. Given that both identity and the fact of commission of the offences were in issue, the tendency evidence had significant probative value and was likely to be influential in determining whether the applicant committed the charged offences. Its probative value substantially outweighed its prejudicial effect, particularly in circumstances where no complaint was made about the trial...

Court Disposition

Time for filing a notice of appeal extended; appeal dismissed.

Orders

  • ['Time for filing a notice of appeal is extended to 18 December 2019.' 'The appeal is dismissed.']