R v Smith [2008] NSWCCA 247

R v Smith [2008] NSWCCA 247

The trial judge erred in concluding that TG's evidence lacked significant probative value merely because the alleged sexual acts were not identical. The virtually identical surrounding circumstances and similarities in the respondent's alleged conduct supported admissibility as tendency evidence. Excluding that evidence would substantially weaken the prosecution case, which otherwise depended on the complainant's evidence, and the appeal should therefore be allowed and the ruling vacated.

Jurisdiction
Australia
Judgment Date
30 October 2008
Procedural Posture
Crown Appeal / Appeal Pursuant to Section 5 F(3 A) of the Criminal Appeal Act, 1912 Against a District Court Ruling Excluding Tendency and Coincidence Evidence
Outcome
Appeal allowed. Ruling made by trial judge vacated.
Legal Topics
['tendency Evidence' 'coincidence Evidence' 'sexual Offence Allegations' 'probative Value and Prejudicial Effect' 'crown Appeal Against Evidentiary Ruling']
['criminal Law' 'evidence' 'criminal Procedure'] ['tendency Evidence' 'coincidence Evidence' 'sexual Offence Allegations' 'probative Value and Prejudicial Effect' 'crown Appeal Against Evidentiary Ruling']

Case Brief

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Procedural Posture

Crown Appeal / Appeal Pursuant to Section 5 F(3 A) of the Criminal Appeal Act, 1912 Against a District Court Ruling Excluding Tendency and Coincidence Evidence

Legal Issues

  1. 1 ['Whether evidence concerning TG had significant probative value and was admissible as tendency evidence under s97 of the Evidence Act 1995.' 'Whether the evidence was admissible as coincidence evidence under s98 of the Evidence Act 1995.' 'Whether s101(2) of the Evidence Act 1995 required exclusion because prejudicial effect was not substantially outweighed by probative value.' "Whether the trial judge's ruling eliminated or substantially weakened the prosecution case for the purposes of s5F(3A) of the Criminal Appeal Act, 1912."]

Ratio Decidendi

The trial judge erred in concluding that TG's evidence lacked significant probative value merely because the alleged sexual acts were not identical. The virtually identical surrounding circumstances and similarities in the respondent's alleged conduct supported admissibility as tendency evidence. Excluding that evidence would substantially weaken the prosecution case, which otherwise depended on the complainant's evidence, and the appeal should therefore be allowed and the ruling vacated.

Court Disposition

Appeal allowed. Ruling made by trial judge vacated.

Orders

  • ['Appeal allowed.' 'Ruling made by trial judge vacated.']