Stenner-Wall v R [2023] NSWCCA 163

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Stenner-Wall v R [2023] NSWCCA 163 Hearing dates: 29 March 2023 Decision date: 05 July 2023 Before: Beech-Jones CJ at CL at [1]; Button J at [16]; Hamill J at [92] Decision: (1) Appeal dismissed. (2) Within two weeks of the completion of proceedings at first instance, the Appellant notify the chambers of Button J accordingly. Catchwords: CRIME – appeal – interlocutory order – Crown appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) – appeal relating to ruling about admissibility of tendency evidence and severance of counts – where primary tendency asserted in notice did not comprehend certain alleged sexual acts of the respondent – where circumstances of tendency notice strictly confined to complainants indicating that sexual touching and/or digital penetration "unwelcome" – decision by trial judge that counts 16 and 17 pertaining to third female complainant were to proceed separately – ground whether trial judge erred in determining there were exceptional circumstances pursuant to s 97A(5) Evidence Act 1995 that overcame statutory presumption of significant probative value – whether error in in determining that the probative value of the evidence did not outweigh the danger of unfair prejudice – correct decision for different reasons – even assuming counts 16 and 17 had significant probative value as tendency evidence, decision to sever was appropriate due to extreme prejudice in light of specificity of tendency notice – appeal dismissed Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5F(2)-(3A) Criminal Procedure Act 1986 (NSW) ss 21, 29, 29A Evidence Act 1995 (NSW) ss 97, 97A, 101 Cases Cited: BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894; [2021] HCA 33 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 JS v R [2022] NSWCCA 145 Qualtieri v The Queen (2006) 171 A Crim R 463; [2006] NSWCCA 95 R v Allen [2020] NSWCCA 173 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Papakosmas v The Queen (1999) 196 CLR 297; [1997] HCA 37 Rassi v R [2023] NSWCCA 119 Salgado v R [2022] NSWCCA 58 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Vaoalii Toalepai v R [2009] NSWCCA 270 Category: Principal judgment Parties: Rex Jay Stenner-Wall (Respondent) Representation: Counsel: M Millward (Crown) E McLaughlin (Respondent)