Case Commentary - PNJ v DPP Essay

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Case Commentary – PNJ v DPP
Introduction
Victoria and New South Wales (NSW) take a similar approach in relation to tendency and coincidence evidence (‘the Evidence’). However, until the case of KJM (No 2) , they took different approaches in reviewing rulings of the Evidence .
This case commentary discusses the different approaches used to be taken in Victoria and NSW, presuming that the admissibility of the Evidence in ss 97, 98 and 101 is of the same decision, not separate decision .
Facts
PNJ v DPP is an appeal case with regard to sexual assault against teenage boys by the applicant. The crime was alleged to happen at Youth Training Centre in the eastern suburbs of Victoria, where the applicant worked as a supervisor.
The Crown
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Analysis
Discretion and Judgment Second-guessing a jury
In Fletcher, Simpson J (McClellan CJ at CL agreed and Rothman J not deciding), concluded that the balancing test of determining ‘significant’ probative value and weighing up probative value and prejudicial effect (s 101) is a discretion conferred to a trial judge. Accordingly, the decision of admitting the Evidence is reviewable on appeal only with the principles in House v R .
House v R is the well-settled authority for reviewing a trial judge’s exercise of discretion . Therefore, categorising the decision to admit the Evidence as discretion is, the main if not the only basis, for her to come to the conclusion. She did agree that admissibility of evidence is a question of law, yet she thought that ss 97 and 98 do confer a statutory discretion, which is similar to judicial discretion . So a trial judge needs to have an evaluative process to admit or exclude the Evidence. She formulated a two-step test. It involves second-guessing whether a jury will assign the probative value of the Evidence as ‘significant’ apart from forming that view by a trial judge first. She described the test as ‘predictive’ and ‘evaluative’, where reasonable minds may reach different conclusions .
On the other hand, Underwood CJ in L v Tasmania viewed that the decision to admit the

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