JS v R [2022] NSWCCA 145

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JS v R [2022] NSWCCA 145 Hearing dates: 13 May 2022 Date of orders: 29 June 2022 Decision date: 29 June 2022 Before: Basten AJA at [1]; Hamill J at [53]; Dhanji J at [54] Decision: (1) Grant the applicant leave to appeal from his convictions in the District Court. (2) Dismiss the appeal. Catchwords: CRIMINAL PROCEDURE – trial – directions to jury – allegation that accused had sexual interest in complainant and tendency to act on it – jury directed to consider evidence of uncharged and charged acts collectively – whether judge should have directed jury that each act must be proved beyond reasonable doubt before use as tendency evidence – Criminal Procedure Act 1986 (NSW), s 161A EVIDENCE – record of interview with complainant adduced as evidence-in-chief – admissibility to support complainant's credibility and as direct evidence of assault EVIDENCE – credibility evidence – evidence re-establishing credibility – complaints made 10 years after alleged offences – no application for leave to adduce evidence – no objection to evidence – whether admissible to support complainant's credibility – Evidence Act 1995 (NSW), ss 66, 108(3) EVIDENCE – tendency evidence – single complainant sexual offences – evidence of uncharged acts – evidence of accused having a sexual interest in complainant and tendency to act upon it – cross-admissibility of charged acts as tendency evidence Legislation Cited: Criminal Procedure Act 1986 (NSW), s 161A, Sch 2 Pt 29 Evidence Act 1995 (NSW), ss 66, 101A, 102, 108 Jury Directions Act 2015 (Vic), ss 61, 62 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 Kassab (a pseudonym) v R [2021] NSWCCA 46 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Texts Cited: ** Category: Principal judgment Parties: JS (Applicant) Regina (Respondent) Representation: Counsel: Ms G Huxley (Applicant) Mr G Newton (Respondent)