ES v R (No.2) [2010] NSWCCA 198

New South Wales Court of Criminal Appeal

CITATION: ES v R (No.2) [2010] NSWCCA 198 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 July 2010

JUDGMENT DATE: 6 September 2010

JUDGMENT OF: Hodgson JA at 1; Whealy J at 91; Buddin J at 91

DECISION: (1) To the extent necessary, leave to appeal against conviction granted. (2) Leave to rely on points not taken below refused, and appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted without objection – Requirements for admission as tendency evidence not satisfied – Errors in summing up – No complaint concerning summing up or request for further direction – Whether leave to rely on points not taken at trial should be granted – Character evidence – Evidence that appellant had no conviction for sexual assault - Whether evidence of uncharged acts thereby made admissible.

LEGISLATION CITED: Criminal Appeal Rules Rule 4 Evidence Act 1995 ss 97, 100, 101, 102, 110, 112, 135, 137, 192

CATEGORY: Principal judgment

R v ATM [2000] NSWCCA 475 Browne v Dunn [1893] 6 R 67 BRS v R [1997] HCA 47; (1997) 191 CLR 275 Eastman v R (1997) 76 FCR 9 R v El-Kheir [2004] NSWCCA 461 ES v R (No 1) [2010] NSWCCA 197 CASES CITED : HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 R v PKS (NSWCCA, 1 October 1998) Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 R v Stalder (1981) 3 A Crim R 87 Toalepai v R [2009] NSWCCA 270 R v Zurita [2002] NSWCCA 22