Regina v PWD [2010] NSWCCA 209

Regina v PWD [2010] NSWCCA 209

The trial judge erred by treating lack of similarity, pattern or modus operandi as decisive and by relying on reasoning apt to coincidence evidence rather than the tendency case actually advanced. The evidence of the four complainants and two other tendency witnesses was capable of rationally affecting the assessment of whether the respondent engaged in the alleged conduct and whether any association was sexually motivated, and it had significant probative value. Its probative value substantially outweighed any prejudicial effect, particularly with appropriate jury directions. Exclusion of the evidence would substantially weaken the prosecution case, so the appeal under Criminal Appeal...

Jurisdiction
Australia
Judgment Date
17 September 2010
Procedural Posture
Criminal Appeal Against Interlocutory Rulings on Admissibility of Evidence and Severance / Appeal to the New South Wales Court of Criminal Appeal Under Criminal Appeal Act 1912, Ss 5 F(2) and 5 F(3 A), From Rulings Made in the District Court Before Trial
Outcome
Appeal allowed; District Court rulings vacated; proposed tendency evidence admitted; counts 1-10 ordered to be tried together.
Legal Topics
['tendency Evidence' 'significant Probative Value' 'prejudicial Effect' 'sexual Offences Against Students' 'severance of Counts' 'interlocutory Prosecution Appeal']
['criminal Law' 'evidence' 'criminal Procedure'] ['tendency Evidence' 'significant Probative Value' 'prejudicial Effect' 'sexual Offences Against Students' 'severance of Counts' 'interlocutory Prosecution Appeal']

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Procedural Posture

Criminal Appeal Against Interlocutory Rulings on Admissibility of Evidence and Severance / Appeal to the New South Wales Court of Criminal Appeal Under Criminal Appeal Act 1912, Ss 5 F(2) and 5 F(3 A), From Rulings Made in the District Court Before Trial

Legal Issues

  1. 1 ['Whether the trial judge erred in ruling that the proposed tendency evidence lacked significant probative value under Evidence Act 1995, s 97(1)(b).' 'Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect under Evidence Act 1995, s 101(2).' 'Whether the counts involving four complainants should be tried together or separately.' 'Whether Criminal Appeal Act 1912, s 5F(3A), was satisfied because the ruling eliminated or substantially weakened the prosecution case.']

Ratio Decidendi

The trial judge erred by treating lack of similarity, pattern or modus operandi as decisive and by relying on reasoning apt to coincidence evidence rather than the tendency case actually advanced. The evidence of the four complainants and two other tendency witnesses was capable of rationally affecting the assessment of whether the respondent engaged in the alleged conduct and whether any association was sexually motivated, and it had significant probative value. Its probative value substantially outweighed any prejudicial effect, particularly with appropriate jury directions. Exclusion of the evidence would substantially weaken the prosecution case, so the appeal under Criminal Appeal...

Court Disposition

Appeal allowed; District Court rulings vacated; proposed tendency evidence admitted; counts 1-10 ordered to be tried together.

Orders

  • ['Vacate the rulings made by Flannery DCJ on 7 May 2010;' 'The evidence of tendency that the prosecution intends to produce pursuant to the Evidence Act 1995, s 97(1) contained in the notice dated 19 April 2010 is admissible;' 'Order that counts 1-10 on the indictment be tried together.']