Regina v Harker [2004] NSWCCA 427

New South Wales Court of Criminal Appeal

CITATION : Regina v Harker [2004] NSWCCA 427 HEARING DATE(S) : 24/11/2004 JUDGMENT DATE : 2 December 2004

JUDGMENT OF : Santow JA at 1; Bell J at 2; Howie J at 3 DECISION : 1. The appeal against the judgment of Judge Puckeridge declining to direct that the tendency rule not apply to evidence of DE be allowed and the judgment be set aside 2. The Court directs that pursuant to s 100(1) the tendency rule not apply to the evidence contained in the statement of DE dated 15 November 2004 nothwithstanding the failure of the Crown to give notice under 2 97(1) on the following conditions: (a) the trial of charges against the respondent presently listed before Judge Puckeridge be adjourned to a date to be fixed by the District Court; (b) the Crown pay the costs of the proceedings before Judge Puckeridge relating to the trial and the costs of the adjournment. 3. The Crown appeal is otherwise dismissed.

CATCHWORDS : Criminal Law - Evidence - Tendency Evidence - failure to give notice - whether trial judge should have dispensed with notice requirementrs - whether evidence ought to be rejected in exercise of discretion. Criminal Appeal Act 1912 - s 5F(3A) LEGISLATION CITED : Evidence Act 1995 - ss 38, 97(1), 99, 100(1), 101(2), 135, 137, 192, 195 Evidence Act Regulations - clause 6 AN (2000) 117 A Crim R 176 CASES CITED : R v Milakovic [2004] NSWCCA 199 R v Lockyer (1996) 89 A Crim R 457 R v Milton [2004] NSWCCA 195 PARTIES : Regina v Richard Harker FILE NUMBER(S) : CCA 2004/2990 COUNSEL : D. Arnott with J. Crespo - Crown R. Sutherland SC with R. Driels - Respondent SOLICITORS : S. Kavanagh - Crown Galloways, Lawyers - Respondent