R v Ac

[2018] NSWCCA 130

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. 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

Quick Take

When exercising the power under Evidence Act 1995 (NSW), s 100(1) to dispense with the tendency notice requirement, the absence of an explanation for the Crown's non-compliance is not a mandatory or determinative consideration. The mandatory considerations are those in s 192(2), which focus on the consequences for the parties and the proceedings. A perceived need to enforce general Crown compliance with tendency notice rules is an extraneous consideration that falls outside the purposes for which the s 100(1) power is conferred.