R v Ford [2009] NSWCCA 306

Reported Decision: 201 A Crim R 451

New South Wales Court of Criminal Appeal

CITATION: R v Ford [2009] NSWCCA 306

HEARING DATE(S): 19 November 2009

JUDGMENT DATE: 17 December 2009

JUDGMENT OF: Campbell JA at 1; Howie J at 144; Rothman J at 156

(1) Vacate the ruling made by his Honour Judge Sorby on 20 October 2009. DECISION: (2) In lieu thereof, rule that the evidence contained in the statements of AG and ZM is admissible at the trial of the Respondent on a charge of sexual intercourse with TL without consent on 14 January 2007. (3) Direct the Solicitor for Public Prosecutions to notify the Registrar of this Court, and my Associate, in writing, promptly after the trial of the Respondent has concluded.

CATCHWORDS: EVIDENCE – tendency – section 97 Evidence Act – what amounts to tendency evidence – whether evidence of a tendency is admissible even if that tendency is not itself the criminal activity alleged – whether tendency evidence must itself show a tendency to commit acts similar to the criminal activity alleged – degree of specificity required of tendency evidence – test for relevance of tendency evidence – test of appellate review of decisions about tendency evidence – whether reviewable according to Warren v Coombes (1979) 142 CLR 531 or House v The King (1936) 55 CLR 499 – APPEAL AND NEW TRIAL – appeal – nature of appellate review of a decision as to the admissibility of tendency evidence – whether reviewable according to Warren v Coombes (1979) 142 CLR 531 or House v The King (1936) 55 CLR 499 – Court of Criminal Appeal – section 5F Criminal Appeal Act – whether an appeal to the Court of Criminal Appeal is an appeal by way of rehearing – nature of the error that is required to be established