O’Callaghan v R [2016] NSWCCA 98

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Callaghan v R [2016] NSWCCA 98 Hearing dates: 4 May 2016 Decision date: 30 May 2016 Before: Leeming JA at [1]; R A Hulme J at [69]; R S Hulme AJ at [70] Decision: 1. Extend time within which to seek leave to appeal.

2. Grant leave to appeal and allow the appeal.

3. Set aside the order made on 13 October 2015 that the tendency evidence may be adduced with the exception of 2013 matters.

4. Order that the indictment dated 27 March 2015 be severed. Catchwords: CRIMINAL LAW – interlocutory appeal – joint indictment – applicant charged with one count of sexual intercourse with a girl aged 14, and one count of committing an act of indecency towards a girl aged 11 – pre-trial ruling on objections to Crown adducing evidence of each complainant as tendency evidence in respect of the other charge and application to sever indictment – primary judge ruled evidence admissible – Crown conceded material errors by primary judge in failing to assess probative value, failing to assess whether probative value significant and failing to determine whether that value substantially outweighed prejudicial effect – Crown contended for narrower basis of admissible tendency reasoning – material differences between accounts of the two complainants meant absence of significant probative value and probative value failing to substantially outweigh prejudicial effect – appeal allowed, ruling set aside and indictment ordered to be severed – Evidence Act 1995 (NSW), ss 95, 97, 101 and 137

EVIDENCE – tendency rule – joint indictment – one complainant described spontaneous act of indecency by accused – other complainant described a series of interactions gaining her trust leading to sexual intercourse without consent – complainants were both young girls who first encountered accused driving in his car – whether acceptance of account of either complainant would have significant probative value in respect of the other charge – whether significant probative value substantially outweighed prejudicial effect Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 8 Crimes Act 1900 (NSW), s 578A Criminal Appeal Act 1912 (NSW), s 5F Evidence Act 1995 (NSW), ss 55, 56, 95, 97, 101, 137 Cases Cited: BC v R [2015] NSWCCA 327 DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568 DSJ v R; NS v R [2014] NSWCCA 77 El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 House v The King (1936) 55 CLR 499 IMM v The Queen [2016] HCA 14 R v Harker [2004] NSWCCA 427 R v Nassif [2004] NSWCCA 433 Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 Category: Principal judgment Parties: Nicholas Francis O'Callaghan (Applicant) Crown (Respondent) Representation: Counsel: A Evers (Applicant) MM Cinque SC (Crown)