Regina v Harker [2004] NSWCCA 427

Regina v Harker [2004] NSWCCA 427

The appeal succeeded because the refusal to dispense with notice under s 100(1) was a ruling on admissibility within s 5F(3A), and Judge Puckeridge's refusal could not stand. His Honour considered irrelevant matters, including general prejudice from the age of the allegations, was distracted by s 137, and did not properly address whether prejudice from the Crown's failure to give notice could be cured by conditions. His earlier rejection of the evidence under s 101(2) also could not stand because he assessed the allegations separately despite the Crown relying on their cumulative effect and gave inadequate reasons for concluding that prejudicial effect outweighed probative value.

Jurisdiction
Australia
Judgment Date
02 December 2004
Procedural Posture
Criminal Appeal Under S 5 F(3 A) of the Criminal Appeal Act 1912 Concerning Rulings on Admissibility of Tendency Evidence / Appeal From Pre Trial Rulings of Judge Puckeridge in the District Court
Outcome
Appeal allowed in part; the judgment declining to direct that the tendency rule not apply to DE's evidence was set aside; the Crown appeal was otherwise dismissed.
Legal Topics
['tendency Evidence' 'failure to Give Notice' 'dispensing With Notice Requirements' 'admissibility of Prosecution Evidence' 'prejudicial Effect and Probative Value' 'crown Appeal Under S 5 F(3 A)']
['criminal Law' 'evidence Law'] ['tendency Evidence' 'failure to Give Notice' 'dispensing With Notice Requirements' 'admissibility of Prosecution Evidence' 'prejudicial Effect and Probative Value' 'crown Appeal Under S 5 F(3 A)']

Case Brief

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Procedural Posture

Criminal Appeal Under S 5 F(3 A) of the Criminal Appeal Act 1912 Concerning Rulings on Admissibility of Tendency Evidence / Appeal From Pre Trial Rulings of Judge Puckeridge in the District Court

Legal Issues

  1. 1 ['Whether the Court of Criminal Appeal had jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912 to hear an appeal from a refusal to direct under s 100(1) of the Evidence Act that the tendency rule not apply despite failure to give notice.' 'Whether Judge Puckeridge erred in refusing to dispense with the notice requirement for the evidence of DE contained in the statement dated 15 November 2004.' "Whether the trial judge erred in rejecting DE's evidence as tendency evidence by applying s 101(2) and by considering the allegations separately rather than cumulatively." 'Whether prejudice caused by late or absent notice could be addressed by conditions including adjournment and costs.' "Whether parts of DE's evidence might be admissible on a basis other than tendency evidence."]

Ratio Decidendi

The appeal succeeded because the refusal to dispense with notice under s 100(1) was a ruling on admissibility within s 5F(3A), and Judge Puckeridge's refusal could not stand. His Honour considered irrelevant matters, including general prejudice from the age of the allegations, was distracted by s 137, and did not properly address whether prejudice from the Crown's failure to give notice could be cured by conditions. His earlier rejection of the evidence under s 101(2) also could not stand because he assessed the allegations separately despite the Crown relying on their cumulative effect and gave inadequate reasons for concluding that prejudicial effect outweighed probative value.

Court Disposition

Appeal allowed in part; the judgment declining to direct that the tendency rule not apply to DE's evidence was set aside; the Crown appeal was otherwise dismissed.

Orders

  • ['The appeal against the judgment of Judge Puckeridge declining to direct that the tendency rule not apply to the evidence of DE be allowed and the judgment be set aside.' 'The Court directs that pursuant to s 100(1) the tendency rule not apply to the evidence contained in the statement of DE dated 15 November 2004...