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District Court 22 September 2006

R v Brendan John Riordan

[2006] NSWDC 58

Assault & violence
EVIDENCE MULTIPLE COUNTS ON INDICTMENT DEFENCE APPLICATION FOR SEPARATE TRIAL COINCIDENCE EVIDENCE

Citation: R v Brendan John Riordan [2006] NSWDC 58
Court: District Court of New South Wales
Date: 22 September 2006 (reasons published; orders made 8 May 2006)
Judge(s): Bennett SC DCJ

Background

The accused was charged on a single indictment with three offences involving serious injuries to young children. Two counts alleged maliciously inflicting grievous bodily harm with intent, and one count alleged assault occasioning actual bodily harm. The alleged victims were three girls, each under two years of age at the time of the relevant incidents, who are identified in the judgment only by initials.

The Crown's case was that the accused compressed the chests of two of the children, causing multiple rib fractures, and that he similarly compressed the chest of the third child, causing petechial bruising to her face, neck and upper chest, as well as mild organ damage. The accused was alleged to have been the biological father of one child and the de facto partner of the mothers in each instance.

Before the trial proper commenced, defence counsel brought an application for the three counts to be tried separately. The Crown in turn sought to lead evidence of the injuries suffered by each child as "coincidence evidence" in the proceedings relating to each charge.

  • Whether the accused was entitled to separate trials on each of the three counts in the indictment
  • Whether evidence of injuries to each of the children was admissible as "coincidence evidence" under the Evidence Act 1995 in the proceedings relating to the other charges
  • What limitations, if any, should be placed on the medical opinion evidence led as coincidence evidence
  • Whether the Crown should also be permitted to use the evidence as "tendency evidence" (a question the court put to one side)

Decision

The court determined that the question of severance and the question of coincidence evidence admissibility were inseparably linked. Because the Crown proposed to rely on evidence from each incident in the proceedings concerning the others, any ruling on whether to separate the trials depended first on whether that evidence could be admitted.

On the coincidence evidence question, the court allowed the Crown to adduce evidence of the injuries sustained by each child, and of the means by which those injuries were sustained, in the proceedings relating to each of the other charges. The court was satisfied that the requirements of sections 97, 98 and 101 of the Evidence Act 1995 were met, and that appropriate jury directions would guard against misuse of the evidence.

The court imposed a significant limitation on the medical opinion evidence. Doctors would be permitted to give opinion evidence that the injuries were the consequence of the application of force as such, but would not be permitted to express opinions as to whether that force was applied intentionally by a person. The court held that the question of intent was one for the jury to determine, relying on section 80 of the Evidence Act 1995 and the approach taken in R v Folbigg [2002] NSWSC 1127.

On severance, the court found that counts one and two arose out of the same set of circumstances, and that all three counts together formed part of a series of offences of the same or similar character within the meaning of section 29(1) of the Criminal Procedure Act 1986. The court was satisfied that the interests of justice required a joint trial and that the accused would not be prejudiced or embarrassed in his defence by facing all three counts together.

Orders Made

  • The application by the accused for separate trials on each of the three counts was refused.
  • The Crown was permitted to adduce evidence of the injuries sustained by each of the three children, and the means by which those injuries were sustained, as coincidence evidence in respect of each charge, subject to the qualification that medical witnesses could not express an opinion as to whether the injuries were inflicted by the intentional application of force by any person.
  • The court reserved the question of whether the same evidence could be used as tendency evidence, as the Crown had not yet pressed that application.
  • The court ordered that the names of the three children not be published, noting that publication was in any event a criminal offence under section 11 of the Children (Criminal Proceedings) Act 1987.

Key Takeaways

  • The District Court confirmed that the admissibility of coincidence evidence and the question of severance are properly considered together where the Crown proposes to rely on each incident as evidence in the proceedings concerning the others.
  • Under sections 97, 98 and 101 of the Evidence Act 1995, coincidence evidence can be admitted across multiple counts on an indictment where the circumstances of the alleged offences are sufficiently similar to support an inference that they are not coincidental.
  • A limitation applies to expert medical opinion in this context: doctors may give evidence that injuries resulted from the application of force, but the question of whether that force was applied intentionally by a person remains exclusively for the jury under section 80 of the Evidence Act 1995.
  • Charges arising from the same set of circumstances, or forming part of a series of offences of the same or similar character, may be tried together under section 29(1) of the Criminal Procedure Act 1986, provided no prejudice or embarrassment to the accused's defence results.
  • Section 11 of the Children (Criminal Proceedings) Act 1987 operates as a standalone statutory prohibition on publishing identifying information about child victims in criminal proceedings, without requiring a specific court order.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 59(1)
- Evidence Act 1995 (NSW), ss 80, 97, 98, 101
- Criminal Procedure Act 1986 (NSW), ss 21(2), 29(1), 29(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s 11

Cases
- R v Folbigg [2002] NSWSC 1127
- R v Folbigg [2003] NSWCCA 17
- R v Folbigg [2005] NSWCCA 23
- Folbigg v The Queen [2005] HCA Trans 657
- Pfennig v R (1995) 182 CLR 461
- R v Ellis (2003) 58 NSWLR 700
- R v Lockyer (1996) 89 A Crim R 457
- R v Martin [2002] NSWSC 332