AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 26 March 2009

R v RM

[2009] NSWDC 253

Sexual offences
CRIMINAL LAW APPLICATION FOR SEPARATE TRIALS PROBATIVE VALUE POSSIBILITY OF CONCOCTION

Citation: R v RM [2009] NSWDC 253
Court: District Court of New South Wales
Date: 26 March 2009
Judge(s): Murrell SC DCJ

Background

The accused faced 11 counts involving five complainants and three distinct types of alleged conduct. All alleged offences occurred at the accused's South Coast residence in approximately 2003 to 2004. The Crown alleged that the accused had supplied alcohol, cannabis and pornography to groups of teenage boys and paid them to participate in three activities: running naked around a tree in the backyard, masturbating together while watching pornographic material, and enduring cold showers for payment.

The complainants were members of a particular social group who attended the accused's home together. Two additional witnesses were also available to give tendency evidence regarding some of the alleged conduct. The accused did not face allegations of physical contact with any of the boys.

The defence applied for the charges to be heard in four separate trials, arguing that the different types of alleged conduct were not mutually probative and that the tendency evidence should be excluded for lack of significant probative value. The Crown sought to run all counts together, relying on tendency evidence across the full range of charges.

  • Whether evidence relating to one type of alleged conduct had sufficient probative value to constitute admissible tendency evidence in relation to the same type of conduct on other occasions
  • Whether evidence relating to one type of conduct (for example, the "tree run") had significant probative value as tendency evidence in relation to a different type of conduct (for example, the "group masturbation" or "cold shower")
  • Whether the probative value of any admissible tendency evidence substantially outweighed its prejudicial effect on the accused under s 101(2) of the Evidence Act 1995
  • Whether the charges should be separated into four distinct trials or heard together

Decision

The court applied the two-step framework for assessing tendency evidence from R v Fletcher [2005] NSWCCA 338: first, whether the evidence has the capacity to rationally affect a fact in issue; and second, whether the jury might ascribe to it significant probative value. On the first question, the court found that evidence of any one "game" had the capacity to rationally affect an assessment of whether the accused engaged in the same game on another occasion, given the distinctive and similar circumstances common to all alleged events.

The court held that evidence of each type of conduct had significant probative value in relation to charges alleging the same type of conduct. The circumstances were strikingly consistent across all occasions: the same group of boys, the accused's home, the supply of alcohol and drugs, group participation, and payment. The conduct comprising the "tree run" was considered probably unique. There was no reasonable possibility of concoction, and any prejudice to the accused from jury reasoning could be addressed by an appropriate direction. The probative value substantially outweighed any prejudicial effect, satisfying the s 101(2) test.

However, the court drew a firm line when it came to cross-game tendency evidence. While the circumstances surrounding all three types of conduct were similar, the conduct itself was dissimilar as between the games. With some stated hesitation, the court concluded that evidence of one "game" would not be admitted as tendency evidence in relation to charges alleging a different "game." The s 101(2) balancing test was not satisfied in those circumstances.

On the question of separate trials, the court refused the application. It acknowledged the principle from De Jesus (1986) that sexual cases are particularly likely to arouse prejudice, but was satisfied that an appropriate jury direction could neutralise any potential unfairness in this case. Where charges were connected by admissible tendency evidence, the practice of hearing them together was confirmed as applicable.

Orders Made

• The application to separate the trials is refused.

Key Takeaways

  • Under ss 97 and 101 of the Evidence Act 1995, tendency evidence is admissible where it has significant probative value and that value substantially outweighs prejudice to the accused; the District Court confirmed this two-step assessment requires a concrete evaluation of similarity in both conduct and circumstances.
  • Evidence of highly distinctive and probably unique conduct, occurring in consistent circumstances among the same group of individuals, can satisfy the "significant probative value" threshold even across multiple complainants.
  • A reasonable possibility of concoction remains a relevant consideration in the tendency evidence analysis; in this case, the court found no such possibility given the particularity, distinctiveness, and contemporaneity of the alleged events.
  • Cross-conduct tendency evidence faces a higher bar: where the conduct alleged across different counts is dissimilar (even if the surrounding circumstances are alike), the s 101(2) balancing test may not be satisfied, and the evidence will be excluded on that basis.
  • Refusing an application to separate trials, the District Court confirmed that potential jury prejudice arising from the joinder of charges does not automatically require separation where an appropriate direction can address the risk.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), s 29
- Evidence Act 1995 (NSW), ss 55, 97, 100, 101

Cases
- AW v R [2009] NSWCCA 1
- De Jesus (1986) 22 A Crim R 375
- Hoch v The Queen (1988) 165 CLR 292
- R v Colby [1999] NSWCCA 261
- R v Ellis (2003) 58 NSWLR 700
- R v Fletcher [2005] NSWCCA 338
- R v Harker [2004] NSWCCA 427
- R v Lockyer (1996) 89 A Crim R 457
- R v Milton [2004] NSWCCA 195
- R v OGD (No 2) [2000] NSWCCA 404
- R v RN [2005] NSWCCA 413