R v CP [2020] NSWDC 294

District Court New South Wales

Medium Neutral Citation: R v CP [2020] NSWDC 294 Hearing dates: 21 May 2020 Date of orders: 12 June 2020 Decision date: 12 June 2020 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: I allow the Crown's application to rely on the evidence of the complainant with respect to the earlier uncharged incident the subject of its Tendency Notice, subject to my finding that the Crown could not satisfy me on the balance of probabilities that it took place at an age when the accused was not doli incapax. Catchwords: EVIDENCE – admissibility - tendency evidence – uncharged acts – tendency to be sexually attracted to the complainant and act upon that attraction by engaging in sexual acts with her - whether Crown had rebutted doli incapax presumption – whether tendency evidence when the accused is doli incapax is admissible Legislation Cited: Evidence Act 1995 Cases Cited: Aravena v The Queen (2015) 91 NSWLR 258; [2015] NSWCCA 288 BC v R [2019] NSWCCA 111 BJS v R (2013) 231 A Crim R; [2013] NSWCCA 123 DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 DS v R (2018) 274 A Crim R; [2018] NSWCCA 195 Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 McPhillamy v R (2018) 461 ALR 13; [2018] HCA 52 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Ford (2009) 273 ALR 286; [2009] NSWCCA 306 RP v The Queen (2016) 259 CLR 461; [2016] HCA 53 Category: Procedural rulings Parties: Regina (Crown) CP (Accused) Representation: Counsel: Mr C Todd (Crown) Mr D Grippi (Accused) File Number(s): 2019/77622 Publication restriction: A statutory non-publication provision operates to prevent publication of any information which could tend to identify the complainant or accused