Hammoud v R [2020] NSWCCA 339

Hammoud v R [2020] NSWCCA 339

Leave to appeal was refused because the applicant could not use s 5F(3)(a) to challenge the evidentiary ruling admitting tendency evidence, and no error of principle was shown in the refusal of separate trials. The alleged tendency was sufficiently specific and significantly probative, involving entry into homes of women living alone in the early hours and the commission of sexually motivated acts without consent. The DNA and fingerprint evidence provided an additional clear connection between the two incidents. Although the evidence was prejudicial, it was open to the primary judge to find that its probative value substantially outweighed any unfair prejudice and that appropriate...

Jurisdiction
Australia
Judgment Date
17 December 2020
Procedural Posture
Criminal Application for Leave to Appeal Pursuant to S 5 F(3) of the Criminal Appeal Act 1912 (nsw) From an Interlocutory Decision Refusing Separate Trials / Court of Criminal Appeal Leave Application
Outcome
Leave to appeal refused.
Legal Topics
['separate Trials' 'joinder of Counts' 'tendency Evidence' 'significant Probative Value' 'unfair Prejudice' 'interlocutory Appeal Under S 5 F']
['criminal Law' 'evidence' 'criminal Procedure'] ['separate Trials' 'joinder of Counts' 'tendency Evidence' 'significant Probative Value' 'unfair Prejudice' 'interlocutory Appeal Under S 5 F']

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Procedural Posture

Criminal Application for Leave to Appeal Pursuant to S 5 F(3) of the Criminal Appeal Act 1912 (nsw) From an Interlocutory Decision Refusing Separate Trials / Court of Criminal Appeal Leave Application

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from the District Court's refusal to order separate trials of counts 5 and 6 from counts 1 to 4." "Whether the applicant could challenge under s 5F(3)(a) the primary judge's ruling that tendency evidence was admissible." 'Whether the evidence concerning each complainant had significant probative value as tendency evidence under s 97 of the Evidence Act 1995 (NSW).' 'Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect under s 101 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Leave to appeal was refused because the applicant could not use s 5F(3)(a) to challenge the evidentiary ruling admitting tendency evidence, and no error of principle was shown in the refusal of separate trials. The alleged tendency was sufficiently specific and significantly probative, involving entry into homes of women living alone in the early hours and the commission of sexually motivated acts without consent. The DNA and fingerprint evidence provided an additional clear connection between the two incidents. Although the evidence was prejudicial, it was open to the primary judge to find that its probative value substantially outweighed any unfair prejudice and that appropriate...

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.']