R v FORD [2009] NSWDC 39

New South Wales District Court

CITATION: R v FORD [2009] NSWDC 39

HEARING DATE(S): 10 March 2009

JUDGMENT DATE: 10 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: The probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused and the evidence therefore will be admitted.

CATCHWORDS: CRIMINAL LAW - Judgment - Application to adduce evidence - Tendency evidence - Prejudicial effect - Significance of omission of "unfair" is s101 Evidence Act

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Colby v The Queen [1999] NSWCCA 261 DPP v Boardman [1975] AC 421

TEXTS CITED: Stephen Odgers, Uniform Evidence Law ALRC Report 102

PARTIES: The Crown Adrian Ford

FILE NUMBER(S): DC 08/11/1441

COUNSEL: R Cooley - The Crown N Mikhaiel

SOLICITORS: NSW DPP Dignan and Hanrahan

JUDGMENT

1 HIS HONOUR: Adrian Ford pleaded not guilty this morning to a charge that he, on 14 January 2007 at Narellan Vale, had sexual intercourse with TL without her consent, knowing that she was not consenting.

2 Before a jury was empanelled the Crown indicated that it wished me to rule on the admissibility of what it said was tendency evidence. It tendered to me statements made by TL, as well as two other women, ZM and AG. I was told that the latter two women had actually given evidence against the accused in separate proceedings but I was asked to proceed on the basis that their evidence did not significantly depart from their statements.

3 The allegation to be prosecuted by the Crown in the present trial is that he had sexual intercourse with the TL, that act of intercourse beginning while she was asleep, having attended a party at his home earlier and drunk a considerable amount of alcohol.