R v OGD No 2 [2000] NSWCCA 404

R v OGD No 2 [2000] NSWCCA 404

The appeal failed because the challenged evidence was not wrongly admitted. JS's evidence was admissible as evidence of an alleged admission, with its prejudicial effect controlled by ss 135, 136 and 137 and by proper limiting directions. Once the appellant deliberately raised character, the Crown was entitled to cross-examine him and call PP and SB in reply under the Evidence Act 1995, and the trial judge correctly evaluated probative value and unfair prejudice. Hoch v R did not operate as a free-standing exclusionary rule outside the Evidence Act 1995 framework, and no real possibility of concoction requiring exclusion was shown. The directions given were adequate, the acquittal on...

Jurisdiction
Australia
Judgment Date
13 October 2000
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal From the District Court After Jury Verdicts and Sentence by Solomon DCJ
Outcome
Appeal against conviction refused. Leave to appeal against sentence refused.
Legal Topics
['sexual Offences' 'tendency Evidence' 'similar Fact Evidence' 'admissions' 'character Evidence' 'cross Examination of Accused' 'evidence in Reply' 'concoction' 'jury Directions' 'inconsistent Verdicts' 'leave to Appeal Against Sentence']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Offences' 'tendency Evidence' 'similar Fact Evidence' 'admissions' 'character Evidence' 'cross Examination of Accused' 'evidence in Reply' 'concoction' 'jury Directions' 'inconsistent Verdicts' 'leave to Appeal Against Sentence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal From the District Court After Jury Verdicts and Sentence by Solomon DCJ

Legal Issues

  1. 1 ['Whether the trial judge erred in permitting cross-examination of the appellant regarding allegations of sexual misconduct towards PP and SB.' 'Whether the trial judge erred in permitting the Crown to call evidence in reply from PP and SB about alleged sexual misconduct by the appellant.' 'Whether the trial judge erred in admitting evidence from JS of sexual misconduct by the appellant, including an alleged admission by the appellant.' 'Whether the directions on the permissible use of evidence of other sexual misconduct and on character evidence were adequate.' 'Whether the verdict of not guilty on one count was so inconsistent with the guilty verdicts on other counts as to make the convictions unreasonable.' 'Whether leave to appeal against sentence should be granted.']

Ratio Decidendi

The appeal failed because the challenged evidence was not wrongly admitted. JS's evidence was admissible as evidence of an alleged admission, with its prejudicial effect controlled by ss 135, 136 and 137 and by proper limiting directions. Once the appellant deliberately raised character, the Crown was entitled to cross-examine him and call PP and SB in reply under the Evidence Act 1995, and the trial judge correctly evaluated probative value and unfair prejudice. Hoch v R did not operate as a free-standing exclusionary rule outside the Evidence Act 1995 framework, and no real possibility of concoction requiring exclusion was shown. The directions given were adequate, the acquittal on...

Court Disposition

Appeal against conviction refused. Leave to appeal against sentence refused.

Orders

  • ['Appeal against conviction refused.' 'Leave to appeal against sentence refused.']