Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 Hearing dates: 5 October 2018 Decision date: 14 December 2018 Before: Basten JA at [1]; Johnson J at [54]; R A Hulme J at [59] Decision: (1) Set aside the ruling of the trial judge made on 12 September 2018 rejecting the tendency evidence proffered by the prosecutor.

(2) Direct that, subject to order (3), so much of the tendency evidence itemised in the notice dated 16 August 2018, together with additional material served on the day before the hearing in the District Court, is admissible on the trial of the accused on the charges set out in the indictment dated 10 September 2018.

(3) The admissible material is limited to that described by counsel for the Director in pars 13-16 of the submissions in this court, as set out in Part B of the schedule to these reasons. Catchwords: APPEALS – interlocutory criminal appeal by prosecutor – Criminal Appeal Act 1912 (NSW), s 5F – standard of appellate review – principles determining whether appeal in nature of House v The King or Warren v Coombes

EVIDENCE – tendency evidence – appeal from rejection of tendency evidence – criminal proceedings – evidence of accused's alleged sexual interest in pre-school aged children and to act on that sexual interest –relevance – significant probative value – prejudice based on revulsion – need for jury directions – whether probative value of evidence substantially outweighed any prejudicial effect – Evidence Act 1995 (NSW), ss 55, 97, 101

PRECEDENT – appeal upheld by High Court with reasons reserved – reliance on reasons of dissenting judge below – whether appropriate for trial court to review transcript of High Court hearing to determine law to be applied – earlier precedent applied Legislation Cited: Civil Procedure Act 2005 (NSW), s 56; Pt 6 Criminal Appeal Act 1912 (NSW), s 5F, 17 Evidence Act 1995 (NSW), ss 97, 101 Cases Cited: DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27 Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20 In Re the Will of Gilbert (1946) 46 SR (NSW) 318 KJM v The Queen (No 2) (2011) 33 VR 11; [2011] VSCA 268 McCartney v The Queen (2012) 38 VR 1; [2012] VSCA 268 McPhillamy v The Queen [2017] NSWCCA 130 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30 R v AB (No 2) [2018] NSWCCA 148 R v Aubrey [2012] NSWCCA 254 R v Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v Gilfillan [2003] NSWCCA 102; 139 A Crim R 460 R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Webb v R [2012] NSWCCA 216 Category: Principal judgment Parties: Director of Public Prosecutions (Applicant) RDT (a pseudonym) (Respondent) Representation: Counsel: Ms B Baker/ Mr R Howle (Applicant) Mr S Loomes (Respondent)