O’Callaghan v R [2016] NSWCCA 98

O’Callaghan v R [2016] NSWCCA 98

The District Court erred in failing to specifically identify the bases for tendency, to assess probative value as significant, and to undertake the statutory balancing of probative value and prejudicial effect; given the material differences between the two complainants' evidence and the generality of the suggested tendencies, the tendency evidence lacked significant probative value and its prejudicial effect was not substantially outweighed; appeal allowed, tendency ruling set aside, and indictment ordered to be severed.

Jurisdiction
Australia
Judgment Date
30 May 2016
Procedural Posture
Criminal Interlocutory Appeal / Application for Leave to Appeal and Substantive Appeal From Pre Trial Ruling of District Court of New South Wales
Outcome
Appeal allowed; leave granted; pre-trial ruling set aside; indictment severed.
Legal Topics
['interlocutory Appeal' 'tendency Evidence' 'severance of Indictment' 'probative Value Vs Prejudicial Effect']
['criminal Law' 'evidence'] ['interlocutory Appeal' 'tendency Evidence' 'severance of Indictment' 'probative Value Vs Prejudicial Effect']

Case Brief

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Procedural Posture

Criminal Interlocutory Appeal / Application for Leave to Appeal and Substantive Appeal From Pre Trial Ruling of District Court of New South Wales

Legal Issues

  1. 1 ['Whether the District Court erred in permitting tendency evidence to be adduced in a joint trial involving separate complainants' 'Whether the probative value of the proposed tendency evidence had significant probative value and substantially outweighed its prejudicial effect' 'Whether the indictment should be severed']

Ratio Decidendi

The District Court erred in failing to specifically identify the bases for tendency, to assess probative value as significant, and to undertake the statutory balancing of probative value and prejudicial effect; given the material differences between the two complainants' evidence and the generality of the suggested tendencies, the tendency evidence lacked significant probative value and its prejudicial effect was not substantially outweighed; appeal allowed, tendency ruling set aside, and indictment ordered to be severed.

Court Disposition

Appeal allowed; leave granted; pre-trial ruling set aside; indictment severed.

Orders

  • ['Extend time within which to seek leave to appeal.' 'Grant leave to appeal and allow the appeal.' 'Set aside the order made on 13 October 2015 that the tendency evidence may be adduced with the exception of 2013 matters.' 'Order that the indictment dated 27 March 2015 be severed.']