R v Asiminaris [2019] NSWDC 94

R v Asiminaris [2019] NSWDC 94

The probative value of the proposed tendency evidence concerning S is limited by the significant time gap from the charged conduct, contextual differences, and the fact that the evidence relates to post-offence conduct. The risk of prejudice to the accused—namely that the jury may be distracted from determining the charges or may misuse the tendency evidence due to its detail and volume—could not be sufficiently mitigated by jury directions. Therefore, the probative value did not substantially outweigh the prejudicial effect, and the tendency evidence is inadmissible under section 101(2) of the Evidence Act 1995 (NSW).

Parties
Prosecution: Regina (Crown); Defendant: Katherine Asiminaris
Jurisdiction
Australia
Judgment Date
02 September 2019
Procedural Posture
Criminal / Preliminary Ruling on Admissibility of Tendency Evidence
Outcome
Proposed tendency evidence ruled inadmissible.
Legal Topics
Tendency Evidence, Probative Value, Prejudicial Effect, Sexual Offences, Jury Procedure
Criminal Law Evidence Tendency Evidence Probative Value Prejudicial Effect Sexual Offences Jury Procedure

Case Brief

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Parties

Regina (Crown)

Prosecution

Katherine Asiminaris

Defendant

Procedural Posture

Criminal / Preliminary Ruling on Admissibility of Tendency Evidence

Legal Issues

  1. 1 Whether proposed tendency evidence has significant probative value under Evidence Act 1995 (NSW) s 97(1)(b)
  2. 2 Whether probative value of tendency evidence substantially outweighs prejudicial effect to the accused under s 101(2)
  3. 3 Impact of time gap between alleged incidents on admissibility of tendency evidence

Ratio Decidendi

The probative value of the proposed tendency evidence concerning S is limited by the significant time gap from the charged conduct, contextual differences, and the fact that the evidence relates to post-offence conduct. The risk of prejudice to the accused—namely that the jury may be distracted from determining the charges or may misuse the tendency evidence due to its detail and volume—could not be sufficiently mitigated by jury directions. Therefore, the probative value did not substantially outweigh the prejudicial effect, and the tendency evidence is inadmissible under section 101(2) of the Evidence Act 1995 (NSW).

Court Disposition

Proposed tendency evidence ruled inadmissible.

Orders

  • The proposed tendency evidence relating to S is excluded from trial pursuant to s 101(2) of the Evidence Act 1995 (NSW).