R v SK; SK v R [2011] NSWCCA 292

R v SK; SK v R [2011] NSWCCA 292

The complainants' evidence, including the evidence of the male complainant, was admissible as tendency evidence because it showed a significant underlying pattern of sexual interest in and abuse of young relatives visiting the applicant's home, was not shown to be affected by a reasonable possibility of concoction, and its probative value substantially outweighed any identified prejudicial effect. Gender difference did not defeat admissibility where the Crown tendency was based on age, family relationship, access, control of environment and influence over the complainants. Consequently, the charges should be tried together.

Jurisdiction
Australia
Judgment Date
01 April 2011
Procedural Posture
Criminal Interlocutory Applications / Application for Leave to Appeal Under S5 F(3)(a) of the Criminal Appeal Act 1912 and Crown Appeal Under S5 F(2) Against Interlocutory Rulings on Tendency Evidence and Separate Trials
Outcome
Crown appeal allowed; applicant's application dismissed.
Legal Topics
['tendency Evidence' 'admissibility' 'significant Probative Value' 'sexual Offences' 'separate Trials' 'prejudicial Effect' 'concoction']
['criminal Law' 'evidence' 'criminal Procedure'] ['tendency Evidence' 'admissibility' 'significant Probative Value' 'sexual Offences' 'separate Trials' 'prejudicial Effect' 'concoction']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Interlocutory Applications / Application for Leave to Appeal Under S5 F(3)(a) of the Criminal Appeal Act 1912 and Crown Appeal Under S5 F(2) Against Interlocutory Rulings on Tendency Evidence and Separate Trials

Legal Issues

  1. 1 ['Whether evidence of the complainants was admissible as tendency evidence under the Evidence Act 1995.' 'Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect.' "Whether there was a reasonable possibility of concoction or contamination of the complainants' accounts." 'Whether the allegations of the complainants should be tried together or separately.' 'Whether the evidence of the male complainant was inadmissible as tendency evidence because of gender difference.']

Ratio Decidendi

The complainants' evidence, including the evidence of the male complainant, was admissible as tendency evidence because it showed a significant underlying pattern of sexual interest in and abuse of young relatives visiting the applicant's home, was not shown to be affected by a reasonable possibility of concoction, and its probative value substantially outweighed any identified prejudicial effect. Gender difference did not defeat admissibility where the Crown tendency was based on age, family relationship, access, control of environment and influence over the complainants. Consequently, the charges should be tried together.

Court Disposition

Crown appeal allowed; applicant's application dismissed.

Orders

  • ['Crown appeal allowed.' "Applicant's application dismissed." "The evidence of all four complainants was admissible as tendency evidence in the applicant's trial on all counts." 'The trial of the applicant ought proceed on all charges.']