Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v RGC [2012] NSWCCA 271 Hearing dates: 28 November 2012 Decision date: 14 December 2012 Before: Bathurst CJ at [1] Hall J at [2] Button J at [3] Decision: Publication of reserved reasons for vacating the trial judge's ruling of 31 July 2012, and remitting the proceedings to the District Court. Catchwords: CRIMINAL LAW - appeal pursuant to 5F(3A) of the Criminal Appeal Act 1912 - whether error in excluding tendency evidence or context evidence - whether tendency notice defective - appeal allowed by consent - reasons later published Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: KTR v R [2010] NSWCCA 271 R v PWD [2010] NSWCCA 209 Category: Principal judgment Parties: Crown (appellant) RGC (respondent) Representation: Counsel: T Smith (appellant) J Manuell SC (respondent) Solicitors: Solicitor for Public Prosecutions (appellant) Legal Aid NSW (respondent) File Number(s): 10/404214 Publication restriction: Nothing that would identify the respondent Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-07-31 00:00:00 Before: Armitage DCJ File Number(s): 10/404214 Judgment 1BATHURST CJ: I agree with the reasons of Button J. 2HALL J: I agree with the judgment of Button J. 3BUTTON J: Due to the fact that the respondent is facing a pending trial, I have anonymised references to his name. 4Because orders have already been made by this Court disposing of this appeal with the consent of the parties, I can be unusually brief. Background 5This was an appeal by the New South Wales Director of Public Prosecutions to this Court pursuant to s 5F(3A) of the Criminal Appeal Act 1912. The respondent was charged with an offence of inflicting grievous bodily harm with intent to do so, pursuant to s 33(1)(b) of the Crimes Act 1900. The offence was said to have been committed against a woman with whom the respondent had been in a relationship. The Crown at trial in the District Court of New South Wales sought to lead evidence of other occasions on which it was alleged that the respondent had assaulted or abused the complainant. It was submitted by the Crown that the evidence was admissible as tendency evidence, pursuant to s 97 of the Evidence Act 1995; or, in the alternative, as context evidence that explained certain aspects of the proposed evidence of the complainant. 6The Crown prepared a tendency notice as part of that application. It was not the subject of criticism by the solicitor appearing for the respondent in the District Court. However, that solicitor took it upon himself to prepare a detailed table that expanded upon and explained the tendency notice. That table was relied upon by the trial judge. 7In a judgment of 31 July 2012, his Honour held that the evidence should not be admitted as tendency evidence or as context evidence. 8On 2 August 2012, the Crown lodged an appeal against that ruling. Position of the parties in this Court 9The Crown submitted that the trial Judge had applied a wrong test in determining the question of the admissibility of the evidence, both as to whether it should be admitted as tendency evidence or as context evidence. Reference was made to the recent decisions of R v PWD [2010] NSWCCA 209 and KTR v R [2010] NSWCCA 271. The Crown also submitted that the exclusion of the evidence substantially weakened the prosecution case. Accordingly, the Crown submitted that the bases for setting aside the ruling excluding the evidence had been established. 10Shortly before the hearing of the appeal, the Court was informed that senior counsel for the respondent did not oppose the ruling being vacated, on the basis that the trial Judge had approached the question for determination erroneously. 11However, senior counsel for the respondent maintained at the hearing the position developed in her written submissions to the effect that the tendency notice that had founded the original application of the Crown was seriously deficient. Her submission was that the state of the tendency notice had led the trial Judge into at least one of the approaches to the question about which the Crown complained; namely, a lack of necessary specificity in dealing with the evidence. 12The parties were content for this Court to order that the ruling of his Honour be vacated, and that the matter be remitted to the District Court. 13They were also content for this Court to indicate that there may well be a serious issue to be determined about the sufficiency of the tendency notice if it remains in its current form. 14Finally, they were content for this Court to indicate that the upholding of the appeal of the Crown with the consent of the respondent is not to be interpreted as any fetter upon the ability of the respondent to agitate the question of the sufficiency of the tendency notice in the District Court. Conclusion 15It was on that basis that this Court made the following orders on 28 November 2012: (1)Vacate the trial judge's ruling of 31 July 2012; and (2)Remit the proceedings to the District Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2012