AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 14 December 2012

R v RGC

[2012] NSWCCA 271

Assault & violenceDomestic & family violence
CRIMINAL LAW WHETHER TENDENCY NOTICE DEFECTIVE APPEAL ALLOWED BY CONSENT REASONS LATER PUBLISHED

Citation: R v RGC [2012] NSWCCA 271
Court: Court of Criminal Appeal
Date: 14 December 2012
Judge(s): Bathurst CJ, Hall J, Button J

Background

The respondent faced a charge of inflicting grievous bodily harm with intent under the Crimes Act 1900, arising from an alleged assault on a woman with whom he had been in a relationship. At trial in the District Court, the Crown sought to lead evidence of other occasions on which the respondent had allegedly assaulted or abused the same complainant. The Crown advanced this evidence as either tendency evidence under s 97 of the Evidence Act 1995, or as context evidence to explain aspects of the complainant's proposed testimony.

The trial judge ruled on 31 July 2012 that the evidence was inadmissible on both bases. The Crown appealed that ruling to the Court of Criminal Appeal under s 5F(3A) of the Criminal Appeal Act 1912.

Of note, the Crown's tendency notice was not challenged before the trial judge by the respondent's solicitor, who instead prepared a detailed explanatory table that the trial judge relied upon. The sufficiency of that notice later became a significant issue on appeal.

  • Whether the trial judge applied the correct test when determining admissibility of the evidence as tendency evidence under s 97 of the Evidence Act 1995
  • Whether the trial judge applied the correct test when determining admissibility of the evidence as context evidence
  • Whether the tendency notice prepared by the Crown was sufficiently specific to support the application

Decision

The Crown submitted that the trial judge had applied a wrong legal test in relation to both tendency evidence and context evidence, relying on R v PWD [2010] NSWCCA 209 and KTR v R [2010] NSWCCA 271. The Crown also argued that exclusion of the evidence substantially weakened the prosecution case. Shortly before the hearing, the respondent's senior counsel conceded that the trial judge had approached the questions erroneously, and did not oppose the ruling being vacated.

However, the respondent's senior counsel maintained that the tendency notice was seriously deficient in its current form. She submitted that the inadequate specificity of the notice had contributed to at least one of the errors the Crown complained of, namely the trial judge's lack of specificity in analysing the evidence.

The parties reached a common position: the ruling should be vacated, the matter remitted to the District Court, and it should be noted that the sufficiency of the tendency notice remained a live issue for determination below. The Court of Criminal Appeal confirmed that the consent appeal outcome was not to be treated as foreclosing any argument by the respondent about the adequacy of the tendency notice in the District Court.

Orders Made

  • The trial judge's ruling of 31 July 2012 was vacated
  • The proceedings were remitted to the District Court

Key Takeaways

  • The Court of Criminal Appeal vacated a District Court ruling excluding tendency and context evidence after both parties agreed the trial judge had applied an incorrect legal test
  • A tendency notice that lacks sufficient specificity may contribute to error in the trial judge's analysis of admissibility, and its adequacy remains a discrete question capable of affecting the outcome on remittal
  • Under s 5F(3A) of the Criminal Appeal Act 1912, the Crown may appeal interlocutory rulings excluding evidence, and such appeals may be resolved by consent where both parties agree the ruling below was erroneous
  • Upholding a Crown appeal by consent does not operate as a fetter on the respondent's ability to raise fresh arguments, including challenges to the adequacy of the tendency notice, in the court below on remittal
  • R v PWD [2010] NSWCCA 209 and KTR v R [2010] NSWCCA 271 were identified as the relevant authorities governing the correct approach to admissibility of tendency and context evidence in these circumstances

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), s 97

Cases
- R v PWD [2010] NSWCCA 209
- KTR v R [2010] NSWCCA 271