RWC v R [2010] NSWCCA 332

RWC v R [2010] NSWCCA 332

KC's disputed evidence was in reality tendency evidence, not mere background or relationship evidence, and its only relevance was as tendency evidence. No tendency notice had been given, no application to dispense with notice was made, and the tests in ss 97 and 101 of the Evidence Act 1995 were not applied. The evidence therefore ought not to have been admitted, and the absence of a proper direction on its use also required the appeal to be allowed. The unreasonable verdict grounds failed because it was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence.

Jurisdiction
Australia
Judgment Date
22 December 2010
Procedural Posture
Criminal Appeal Against Conviction / Appeal From District Court Jury Convictions
Outcome
Appeal against conviction allowed; convictions quashed; new trial ordered on all counts.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'act of Indecency' 'context Evidence' 'tendency Evidence' 'unreasonable Verdict' 'consent' 'alternative Verdict' 'new Trial']
['criminal Law' 'evidence' 'criminal Procedure'] ['aggravated Sexual Intercourse Without Consent' 'act of Indecency' 'context Evidence' 'tendency Evidence' 'unreasonable Verdict' 'consent' 'alternative Verdict' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal From District Court Jury Convictions

Legal Issues

  1. 1 ["Whether evidence given by KC about the appellant's conduct towards the complainant was admissible as context or relationship evidence or was tendency evidence requiring compliance with ss 97 and 101 of the Evidence Act 1995." "Whether the trial judge failed to direct the jury on the use that could be made of KC's evidence." 'Whether the trial judge properly directed the jury on consent for counts of aggravated sexual intercourse without consent and whether the Crown proved lack of consent and knowledge of lack of consent.' 'Whether the verdicts were unreasonable or unsafe having regard to the evidence.']

Ratio Decidendi

KC's disputed evidence was in reality tendency evidence, not mere background or relationship evidence, and its only relevance was as tendency evidence. No tendency notice had been given, no application to dispense with notice was made, and the tests in ss 97 and 101 of the Evidence Act 1995 were not applied. The evidence therefore ought not to have been admitted, and the absence of a proper direction on its use also required the appeal to be allowed. The unreasonable verdict grounds failed because it was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence.

Court Disposition

Appeal against conviction allowed; convictions quashed; new trial ordered on all counts.

Orders

  • ['Appeal against conviction allowed, convictions quashed.' 'There be a new trial on all counts.']