Citation: R v Kuol Ngong Majok ADUP [2008] NSWDC 352
Court: District Court of New South Wales
Date: 25 November 2008
Judge(s): Cogswell SC DCJ
Background
The accused faced two charges arising from an incident in January 2008: breaking and entering a dwelling house and committing non-consensual sexual intercourse with the complainant, with the second charge of non-consensual sexual intercourse pleaded in the alternative. The central dispute turned on consent. The accused's anticipated defence was that he had made a prior arrangement with the complainant, including an understanding that consensual sexual intercourse would occur, before attending her home that evening.
The Crown sought to call a witness, Meegan Romeo, who had been drinking at the same hotel as the complainant and the accused on the night in question. Her statement described receiving a phone call from an "African guy" whose number she had been given outside the hotel. During that call, the male voice repeatedly asked if he could pick her up, despite her refusals. The Crown proposed to establish that the phone used to make that call was owned by the accused.
The admissibility of Ms Romeo's statement was the subject of a voir dire hearing (a hearing held in the absence of the jury to determine whether evidence is admissible).
Legal Issues
- Whether Ms Romeo's statement met the test for relevance under section 55 of the Evidence Act 1995, in that it could rationally affect the assessment of the probability of a fact in issue.
- Whether, under section 137 of the Evidence Act 1995, the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused, requiring its exclusion.
Decision
His Honour found the evidence was relevant. It was capable of bearing on the question of consent and on whether the accused's entry into the complainant's premises was by prior arrangement. The evidence suggested the accused may have been acting inconsistently with any existing arrangement, as it indicated he was seeking company elsewhere that same evening.
However, the court turned to the mandatory balancing exercise under section 137. His Honour accepted that the probative value of the evidence was diminished in two ways. First, phone records showed the accused's phone remained in active use after his arrest, raising a reasonable possibility that the phone was shared among his companions rather than used exclusively by him. Second, even if the accused made the call, it was consistent with him simply having changed his mind about an earlier arrangement, which reduced the strength of any inference against him.
Against this reduced probative value, the court identified a real danger of unfair prejudice. The evidence risked portraying the accused as someone who indiscriminately sought casual sexual encounters after drinking, giving it a tendency or character-like quality that could distract the jury from the central and specific question of whether the complainant consented. That distraction carried the danger that the jury might misuse the evidence rather than assess it only for its legitimate purpose.
His Honour concluded that the probative value was outweighed by the danger of unfair prejudice and refused to admit the evidence.
Orders Made
- Application by the Crown to admit the statement of Meegan Romeo refused.
Key Takeaways
- Under section 137 of the Evidence Act 1995, once a court determines that probative value is outweighed by the danger of unfair prejudice to the accused, exclusion is mandatory, not discretionary.
- Probative value is not assessed in isolation. Where there are reasonable alternative explanations for the evidence (such as shared use of a phone, or a change of mind), those possibilities reduce the weight that can be placed on the evidence in the balancing exercise.
- Evidence that carries a risk of suggesting a "predatory" or indiscriminate character, even if not formally tendered as tendency evidence, can give rise to unfair prejudice if it may distract the jury from the specific factual question they must resolve.
- The District Court drew a clear distinction between ordinary prejudice (evidence that tends to suggest guilt) and unfair prejudice (evidence that may be misused by the jury in a way that goes beyond its legitimate probative purpose).
- Relevance under section 55 sets a low threshold, and the court found this evidence cleared it. However, satisfying the relevance test does not protect evidence from exclusion under the higher scrutiny applied by section 137.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), sections 55 (relevance) and 137 (exclusion of prejudicial evidence in criminal proceedings)
Cases cited: None cited in the judgment text.