R v SG [2017] NSWCCA 202

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v SG [2017] NSWCCA 202 Hearing dates: 28 July 2017 Date of orders: 28 August 2017 Decision date: 28 August 2017 Before: Hoeben CJ at CL at [1] McCallum J at [2] Bellew J at [3] Decision: (1) The appeal by the Director of Public Prosecutions against the determination of his Honour Judge Williams SC of 5 May 2017 excluding the evidence of SG is allowed.

(2) The determination of his Honour Judge Williams SC excluding the evidence of SG is set aside.

(3) The evidence of SG is admissible in the proceedings against the respondent. Catchwords: CRIMINAL LAW – Appeal – Crown appeal against the exclusion of evidence by the trial judge – Where the respondent charged with multiple offences of assaulting and sexually assaulting his wife – Where the 10 year old daughter of the respondent and the victim gave an account to police of one particular incident the subject of three separate counts in the indictment – Where the trial judge determined that the evidence was not relevant – Where the trial judge further determined that even if relevant the evidence should be excluded on the basis that its probative value was substantially outweighed by the danger of unfair prejudice to the respondent – Where the trial judge failed to identify the facts in issue – Where the trial judge had regard to whether the evidence of the child might be rejected by a jury on the basis that it was confusing – Where the trial judge concluded that there was a danger of unfair prejudice because the respondent would be unable to properly test the evidence – Errors established – Evidence relevant and admissible – Crown appeal allowed – Determination of the trial judge set aside Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: Festa v R (2001) 208 CLR 593; [2001] HCA 72 Hughes v The Queen [2017] HCA 20 Nye v State of New South Wales & ors [2002] NSWSC 1270 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Ali [2015] NSWCCA 72 R v Burton [2013] NSWCCA 335 R v Dickman [2017] HCA 24 Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 140 ALR 701 Category: Principal judgment Parties: Regina – Appellant SG – Respondent Representation: Counsel: S Dowling SC – Appellant S Fraser – Respondent