R v XY [2013] NSWCCA 121

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v XY [2013] NSWCCA 121 Hearing dates: 19 March 2013 Decision date: 22 May 2013 Before: Basten JA at [1]; Hoeben CJ at CL at [83]; Simpson J at [94]; Blanch J at [180]; Price J at [209] Decision: Appeal dismissed. Catchwords: APPEAL - criminal - Director's right of appeal against ruling on admissibility of evidence - whether exclusion of evidence substantially weakened prosecution case - how appellate court to determine whether ruling substantially weakens prosecution case - whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) - Criminal Appeal Act 1912 (NSW)

EVIDENCE - exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value - s 137 Evidence Act 1995 (NSW) - whether permissible for court to consider credibility and reliability of evidence in determining probative value - where restrictive approach previously adopted by same court in R v Shamouil [2006] NSWCCA 112 - restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] VSCA 328 - whether material difference between approaches

EVIDENCE - exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value - s 137 Evidence Act 1995 (NSW) - whether failure to identify particular unfair prejudice - failure to consider how proper direction could overcome risk of unfair prejudice - whether trial judge erred in excluding evidence

EVIDENCE - criminal proceedings - respondent charged with sexual offences - evidence of telephone conversations between complainant and respondent nine years after alleged incident - transcripts included responses to allegations - whether vagueness of allegations created risk of unfair prejudice - whether danger that jury would use evidence for impermissible tendency inference - whether risk could be overcome by proper direction - s 137 Evidence Act 1995 (NSW)