Stenner-Wall v R [2023] NSWCCA 163

Stenner-Wall v R [2023] NSWCCA 163

Even assuming the tendency evidence had significant probative value, the risk that the jury would misuse the evidence—given the restrictions arising from the scope of the tendency notice—created unfair prejudice that outweighed its probative value. Directions requiring the jury to use certain evidence for one asserted tendency but disregard it for another were likely to be ineffective. The trial judge's decision to sever counts 16 and 17 for a separate trial was not made in error. The appeal was therefore dismissed, albeit for reasons differing in some respects from those articulated at first instance.

Jurisdiction
Australia
Judgment Date
05 July 2023
Procedural Posture
Criminal Interlocutory Appeal / Crown Interlocutory Appeal From District Court Ruling on Evidence and Severance
Outcome
Appeal dismissed
Legal Topics
['tendency Evidence' 'severance of Counts' 'admissibility of Evidence' 'child Sexual Offences']
['criminal Law' 'evidence'] ['tendency Evidence' 'severance of Counts' 'admissibility of Evidence' 'child Sexual Offences']

Case Brief

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Procedural Posture

Criminal Interlocutory Appeal / Crown Interlocutory Appeal From District Court Ruling on Evidence and Severance

Legal Issues

  1. 1 ['Whether the trial judge erred in determining that there were exceptional circumstances under s 97A(5) of the Evidence Act 1995 (NSW) to rebut the presumption of significant probative value for tendency evidence' 'Whether the trial judge erred in concluding that the tendency evidence did not have significant probative value' 'Whether the trial judge erred in finding that the probative value of the evidence did not outweigh the danger of unfair prejudice per s 101(2) Evidence Act 1995 (NSW)' 'Whether severance of counts 16 and 17 was appropriate']

Ratio Decidendi

Even assuming the tendency evidence had significant probative value, the risk that the jury would misuse the evidence—given the restrictions arising from the scope of the tendency notice—created unfair prejudice that outweighed its probative value. Directions requiring the jury to use certain evidence for one asserted tendency but disregard it for another were likely to be ineffective. The trial judge's decision to sever counts 16 and 17 for a separate trial was not made in error. The appeal was therefore dismissed, albeit for reasons differing in some respects from those articulated at first instance.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed.' 'Within two weeks of the completion of proceedings at first instance, the Appellant notify the chambers of Button J accordingly.']