R v A.N. [2000] NSWCCA 372

Reported Decision : [2000] 117 A Crim R 176

New South Wales Court of Criminal Appeal

CITATION : R v A.N. [2000] NSWCCA 372 FILE NUMBER(S) : CCA 60230/99 HEARING DATE(S) : 14/09/2000 JUDGMENT DATE : 9 November 2000

PARTIES : Regina A.N. JUDGMENT OF : Priestley JA at 1; Greg James J at 2; Kirby J at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/61/0127: 97/61/0152 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : W G Dawe QC (Crown) P R Boulten (Appl) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appl) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Relationship evidence - Limits on such evidence - Requirement for notice of tendency evidence Crimes Act, 1900 - s73; s76 LEGISLATION CITED : Evidence Act, 1995 - s97(1); s98; s99; s101(1) & (2); s135; s137; s190(2) NSW Evidence Regulations R v Wilson (1970-71) 123 CLR 334 R v Bond (1906) 2 KB 389 Harriman v The Queen (1989) 167 CLR 590 R v Beserick (1993) 30 NSWLR 510 CASES CITED: Gipp v The Queen (1998) 194 CLR 106 R v Bradley (1989) 41 A Crim R 297 R v MM [2000] NSWCCA 78 R v Lockyear (1989) 89 A Crim R 457 R v Fordham 90 A Crim R 359 DECISION : Appeals allowed

IN THE COURT OF

CRIMINAL APPEAL 60230/99

PRIESTLEY JA GREG JAMES J KIRBY J Thursday 9 November 2000

REGINA v A.N. JUDGMENT

1 PRIESTLEY JA: I agree that the orders proposed by Kirby J should be made, for the reasons he gives, subject to the same reservation as that stated by Greg James J, which does not bear upon the proposed orders. 2 GREG JAMES, J: Except in respect of one matter, I agree with the judgment of Kirby, J., which I have read in draft. 3 I am content the appeal be disposed of on the basis that, for the reasons his Honour gives, the tendency evidence was not properly admitted and the jury were not properly directed as to what evidence was available for what purpose on each count. In addition, I agree with his Honour's observations concerning the mis-statement of the evidence and the submission there was no evidence on count one. 4 The exception to which I have referred involves the question of the reception into evidence of the material of sexual activity extraneous to each particular charge as relationship evidence. 5 Whilst I consider his Honour's discussion of the questions involved most valuable, I find difficulty in accepting that in this case, if this material were to be admitted as relationship evidence and the jury to be directed to use it only as evidence of relationship in accordance with the direction required by application of the principles in Regina v. MM [2000] NSWCCA 78, they would be able in reality to act in accordance with that direction. 6 These considerations might merit reconsideration of the concepts of "relationship", "context", "guilty passion" and such like in the light of the provisions of the Evidence Act 1995 as they might apply to cases similar to this one but such considerations should await a suitable case. 7 In my view, it is not necessary to decide this appeal that the evidence be analysed to consider its possible use as relationship evidence. The appeal should be upheld on the limited basis I have indicated. 8 It is for those reasons I joined in the orders made.