Event and Time
Event Description
- A special hearing was conducted under s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the appellant had committed four charged offences, including aggravated sexual assault.
- The case involved allegations of various assaults and a serious sexual offense against a complainant with whom the appellant had an intimate relationship.
- The hearing took place after the appellant was found unfit to be tried and was additionally impacted by legal amendments regarding evidence.
Application and Claims
- The Crown aimed to admit tendency evidence from a former partner of the accused.
- The prosecution sought to include a recorded phone call—made by the complainant without the accused’s consent—that contained admissions by the accused.
- The prosecution faced issues regarding the admissibility of evidence based on amendments to the Evidence Act 1995 (NSW), which were relevant to the timing of the hearing and the nature of the evidence.
Judicial Decisions
- The primary judge accepted the admissibility of the recorded phone call despite its contested nature under the Surveillance Devices Act and s 138 of the Evidence Act.
- The judge ruled that the special hearing commenced when determining the accused's fitness to stand trial, thus the amendments to the Evidence Act did not restrict the proceedings.
Dispute Points and Legal Basis
Dispute Points
- Prosecution Argument:
- The admissibility of tendency evidence is justified by the relevance to establish patterns in the accused's behavior concerning the charged offences. - The recorded phone call holds significant value as it contains direct admissions by the accused.
- Defence Argument:
- Argued that the amendments to the Evidence Act should apply as they addressed the admission of tendency evidence and evidence obtained improperly. - Contended the primary judge failed to consider the full context of the evidence, including the accused's intellectual disability, reducing the probative value of the evidence. - Suggested that the importance of the recorded evidence was diminished in light of existing corroborative evidence.