R v Ford [2009] NSWCCA 306

R v Ford [2009] NSWCCA 306

The District Court erred in holding that the evidence of AG and ZM was not tendency evidence and in failing to consider if it had significant probative value or whether the probative value substantially outweighed any prejudicial effect. The evidence was relevant, constituted tendency evidence within the meaning of s 97 Evidence Act, and had significant probative value with respect to the charge relating to TL. Furthermore, any prejudicial effect could be met by appropriate jury directions and did not outweigh the probative value as required by s 101(2). Hence, the evidence is admissible at the Respondent’s trial.

Jurisdiction
Australia
Judgment Date
17 December 2009
Procedural Posture
Criminal Appeal / Appeal Against Pre Trial Evidentiary Ruling (court of Criminal Appeal)
Outcome
Appeal allowed; trial judge's ruling vacated; evidence ruled admissible.
Legal Topics
['tendency Evidence' 'admissibility of Evidence' 'section 97 Evidence Act' 'section 101 Evidence Act' 'criminal Appeal Act' 'appellate Review Standards']
['criminal Law' 'evidence'] ['tendency Evidence' 'admissibility of Evidence' 'section 97 Evidence Act' 'section 101 Evidence Act' 'criminal Appeal Act' 'appellate Review Standards']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Pre Trial Evidentiary Ruling (court of Criminal Appeal)

Legal Issues

  1. 1 ['Whether evidence of AG and ZM is admissible as tendency evidence in the trial of the Respondent for sexual intercourse with TL without consent.' "What is required for evidence to be 'tendency evidence' under s 97 Evidence Act 1995." 'What test governs significant probative value and admissibility under s 97(1)(b) and s 101(2) of the Evidence Act.' 'What is the proper standard for appellate review of trial judge decisions on tendency evidence.']

Ratio Decidendi

The District Court erred in holding that the evidence of AG and ZM was not tendency evidence and in failing to consider if it had significant probative value or whether the probative value substantially outweighed any prejudicial effect. The evidence was relevant, constituted tendency evidence within the meaning of s 97 Evidence Act, and had significant probative value with respect to the charge relating to TL. Furthermore, any prejudicial effect could be met by appropriate jury directions and did not outweigh the probative value as required by s 101(2). Hence, the evidence is admissible at the Respondent’s trial.

Court Disposition

Appeal allowed; trial judge's ruling vacated; evidence ruled admissible.

Orders

  • ['Vacate the ruling made by his Honour Judge Sorby on 20 October 2009.' 'Rule that the evidence contained in the statements of AG and ZM is admissible at the trial of the Respondent on a charge of sexual intercourse with TL without consent on 14 January 2007.' 'Direct the Solicitor for Public Prosecutions to notify...