R v Jennings [2010] NSWCCA 193

New South Wales Court of Criminal Appeal

CITATION: R v Jennings [2010] NSWCCA 193

HEARING DATE(S): 3 August 2010

JUDGMENT DATE: 2 September 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Latham J at 3

DECISION: Ruling made by his Honour, Judge Toner QC on 30th July 2010 is vacated

CATCHWORDS: CRIMINAL LAW - Appeal pursuant to s5F(3A) Criminal Appeal Act 1912 - tendency and coincidence evidence - whether Judge erred in revoking earlier ruling allowing Crown to rely on evidence of three complainants as tendency and co-incidence evidence.

LEGISLATION CITED: Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED : R v Harker [2004] NSWCCA 427

PARTIES: Regina - (Applicant) James Patrick Jennings (Respondent)

FILE NUMBER(S): CCA 2009/00061262

COUNSEL: D Woodburne SC - (Aplicant) G Farmer - Respondent

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions - (Applicant) Elliot Lawyers - (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/00061262

LOWER COURT JUDICIAL OFFICER: Toner SC DCJ

LOWER COURT DATE OF DECISION: 30 July 2010

IN THE COURT OF CRIMINAL APPEAL 2009/000161262

McCLELLAN CJ at CL JAMES J LATHAM J

2 SEPTEMBER 2010 R v JAMES PATRICK JENNINGS Judgment 1 McCLELLAN CJ at CL : I agree with Latham J. 2 JAMES J : I agree with Latham J. 3 LATHAM J : On 2 August 2010, the Crown appealed, pursuant to s 5F(3A) of the Criminal Appeal Act 1912, against a ruling made by Toner SC DCJ (the Judge) on 30 July, revoking an earlier ruling which allowed the Crown to rely upon the evidence of three complainants (HP, DP and TL), whose evidence supported counts 1 – 5 on the indictment, as tendency and co-incidence evidence in respect of count 6 on the indictment, which was founded on the evidence of a fourth complainant (RL). This ruling also allowed the evidence of RL to be used in the same way in respect of counts 1 – 5. 4 The revocation came at the end of the evidence in the trial, which commenced on 22 July 2010. All that remained was the addresses and the summing up. In those circumstances, the Court heard the appeal on 3 August 2010 and determined that the appeal should be allowed and the ruling of 30 July vacated. These are the reasons for that decision.