R v BP [2019] NSWDC 112

District Court New South Wales

Medium Neutral Citation: R v BP [2019] NSWDC 112 Hearing dates: 1 April 2019 Date of orders: 04 April 2019 Decision date: 04 April 2019 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: Tendency evidence allowed Catchwords: CRIMINAL LAW – EVIDENCE – tendency evidence – probative value – uncharged act – act relied upon occurred after charged acts – similar act – same victim – issue of temporal disconnect Legislation Cited: Evidence Act 1995 Cases Cited: BC v R [2015] NSWCCA 327 Hughes v The Queen [2017] HCA 20 IMM v The Queen [2016] HCA 14 McPhillamy v The Queen [2018] HCA 52 R v AC [2018] NSWCCA 130 R v SK [2011] NSWCCA 292 RH v R [2014] HCATrans 282 RH v R [2014] NSWCCA 71 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 Texts Cited: None Category: Procedural and other rulings Parties: Regina (Crown) BP (Accused) Representation: Counsel: Ms K Tennant (Crown) Mr J O'Sullivan (Accused)

Solicitors: ODPP (Crown) David Kelly Lawyers (Accused) File Number(s): 2017/313106 Publication restriction: Non-Publication order regarding the identity of the complainant and the Accused

Judgment

Introduction 1. Pursuant to a Notice for Tendency Evidence dated 28 March 2019, the Crown sought to make use of an uncharged act as establishing tendency in respect of the Accused. 2. Counsel for the Accused opposed the evidence being used in that fashion, submitting that by reason of delay between the charged and uncharged acts, the probative value of the evidence had diminished to the point that it either lacked any probative value or was outweighed by the prejudice to his client. 3. Nevertheless, Counsel for the Accused accepted that the evidence was admissible for another purpose. That is to place the complaint evidence in context. The fact that the evidence of the uncharged act would be before the jury for that other purpose diminishes the prejudicial effect. 4. For the argument on the use of the evidence for a tendency purpose, it was agreed that the period which had elapsed between the charged and the uncharged acts was 6 years.