R v AC [2018] NSWCCA 130

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v AC [2018] NSWCCA 130 Hearing dates: 13 June 2018 Date of orders: 13 June 2018 Decision date: 27 June 2018 Before: Meagher JA at [1]; Bellew J at [1]; Fagan J at [1] Decision: 1. Appeal allowed. 2. Set aside order 1 made on 21 May 2018. 3. Direct that paragraph 97(1)(a) of the tendency rule does not to apply to the tendency evidence which is the subject of the tendency notice served on 20 and 21 March 2018 notwithstanding the Crown's failure to give notice of its intention to adduce that evidence within the time provided in accordance with s 99. 4. Order that the respondent's notice of motion filed 22 March 2018 be dismissed. Catchwords: EVIDENCE – exclusion of tendency evidence – Crown failure to serve tendency notice within relevant time – primary judge refused to dispense with the notice requirements for service – where no explanation for the failure to serve the notice – where evidence had substantial probative value not outweighed by any relevant prejudice – where late service of tendency notice will not cause any prejudice to the accused – whether under Evidence Act, s 100(1) the Court should dispense with the notice requirement Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F(3A) Director of Public Prosecutions Act 1986 (NSW), s 7(1) District Court Rules, Part 53 r 10C Evidence Act 1995 (NSW), ss 97, 99, 100, 102, 198 Uniform Civil Procedure Rules, r 31.5 Cases Cited: Andelman v The Queen [2013] VSCA 25; (2013) 227 A Crim R 81 BM v R [2017] NSWCCA 253 Clancy v Director of Public Prosecutions [2018] NSWCA 102 El-Haddad v R (2014) 88 NSWLR 93; [2015] NSWCCA 10 Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 IMM v The Queen (2016) 257 CLR 300 Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 Martin v State of NSW [2002] NSWCA 337 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36 R v Harker [2004] NSWCCA 427 R v Reardon [2002] NSWCCA 203; 186 FLR 1 Stanoevski v R (2002) 202 CLR 115; [2001] HCA 4 Tomko v Palasty (No 2) (2008) 71 NSWLR 61 at [55]; [2007] NSWCA 369 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 Category: Principal judgment Parties: Regina (Crown) AC (Respondent) Representation: Counsel: