Citation: Regina v Daley [2001] NSWSC 1211
Court: Supreme Court of New South Wales, Common Law Division
Date: 14 September 2001
Judge(s): Simpson J
Background
The accused faced an indictment containing 21 charges arising from alleged attacks on eight different women between September 1998 and July 2000. The charges included four counts of detaining for advantage, five of aggravated sexual assault, three of attempted sexual assault, eight of armed robbery, and one of indecent assault. The Crown alleged that common features across all eight incidents, particularly the assailant's chosen conduct during sexual assaults and the use of either a knife or screwdriver, supported an inference that the same person committed every offence.
Before trial, the accused sought a series of pre-trial orders. These included an order for entirely separate trials for each complainant's charges, or alternatively for grouped separate trials, and pre-trial rulings on the admissibility of several categories of evidence. The Crown had filed notice of its intention to rely on both tendency and coincidence evidence under the Evidence Act 1995.
The court heard a voir dire (a preliminary hearing to determine admissibility of evidence) over approximately two weeks. After delivering abbreviated rulings on 22 May 2001, Simpson J reserved the full reasons that form this judgment. Events subsequently became more complicated: the accused pleaded guilty to six charges on 24 May, then sought to withdraw those pleas.
Legal Issues
- Whether the charges relating to each complainant should be tried separately, or whether a joint trial of all 21 counts was appropriate
- Whether tendency and coincidence evidence under the Evidence Act 1995 (ss 97 and 98) was admissible across the counts
- Whether DNA evidence was admissible, including any challenge based on it being illegally or improperly obtained
- Whether picture identification evidence (photo identification procedures) was admissible
- Whether voice identification evidence was admissible
- Whether object identification evidence (clothing, knives, and screwdrivers identified from arrays) was admissible
Decision
Tendency and coincidence evidence; separate trials
Simpson J approached the evidentiary questions first, recognising that the outcome on tendency and coincidence evidence would directly determine whether separate trials were warranted. Her Honour found that the alleged similarities across the eight incidents, particularly the consistent choice of fellatio as the form of assault, combined with other common behavioural features, gave the tendency and coincidence evidence sufficient probative value to be admitted. Because the evidence was admitted, it remained capable of being led at a joint trial, which undermined the foundation for ordering eight separate proceedings.
DNA evidence
The judgment considered whether any aspect of the DNA evidence had been obtained illegally or improperly. The court's ruling admitted the DNA evidence, though the extended reasons explain the analysis of any investigative impropriety in the context of established principles governing improperly obtained evidence.
Identification evidence: pictures, voice, and objects
Picture identification evidence, where complainants were shown photo arrays, was ruled admissible after examination of the procedures followed. Voice identification evidence, where complainants listened to recordings and were asked whether they recognised the speaker's voice, was also admitted. Simpson J accepted that the probative value of voice identification evidence was significant, noting it was greater where a complainant expressed certainty or identified only one voice from an array.
On object identification, her Honour noted an important limitation: all clothing, knives, and screwdrivers shown to the complainants in the identification arrays had been seized from the accused's own home. This meant that any identification by a complainant of a particular item confirmed only that the item belonged to the accused, not that he had been the attacker. The court nonetheless admitted this evidence, treating its weight as a matter for the jury rather than a threshold reason for exclusion.
Orders Made
• Voice identification evidence admitted
• Object identification evidence admitted
Key Takeaways
- The admissibility of tendency and coincidence evidence under the Evidence Act 1995 was directly linked to the separate trials question: where such evidence was admitted across multiple complainants, the justification for separating the trials was substantially weakened.
- Sufficient similarity in the alleged conduct across eight separate incidents, including a consistent pattern in the form of sexual assault and the use of specific weapons, satisfied the court that tendency and coincidence evidence met the required threshold of probative value.
- Voice identification evidence is capable of admission where the identification procedures were properly conducted and where complainants expressed appropriate degrees of certainty, with probative value assessed according to the specificity of each identification.
- Object identification evidence derived entirely from items seized at the accused's premises carries inherent limitations: it may confirm an item belongs to the accused, but cannot, without more, establish that the accused committed the offence in question. The court treated this as a weight issue for the jury rather than a basis for exclusion.
- Where an accused seeks to challenge the admissibility of evidence obtained through allegedly improper investigative procedures, the court will assess whether any impropriety occurred and, if so, whether admission of the evidence would bring the administration of justice into disrepute, applying principles drawn from cases including R v Swaffield; R v Pavic.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 98 (tendency and coincidence evidence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32(1)
- Crimes Act 1900 (NSW)
- Road Transport (Vehicle Registration) Act 1997 (NSW)
Cases
- R v OGD [No.2] [2000] NSW CCA 404; (2000) 50 NSWLR 433
- Sutton v R (1984) 152 CLR 528
- Pfennig v R (1995) 182 CLR 461
- Hoch v R (1988) 165 CLR 292
- R v Lockyer (1986) 89 A Crim R 457
- R v Lock (unreported, 25 March 1997)
- R v Lewis (unreported, 20 June 1996)
- R v Perry (1982) 150 CLR 580
- R v Swaffield; R v Pavic [1998] HCA 1; (1998) 192 CLR 159
- R v McPhail and Tivey (1988) 36 A Crim R 390