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District Court 10 March 2009

R v FORD

[2009] NSWDC 39

Sexual offences
CRIMINAL LAW JUDGMENT APPLICATION TO ADDUCE EVIDENCE TENDENCY EVIDENCE PREJUDICIAL EFFECT

Citation: R v Ford [2009] NSWDC 39
Court: District Court of New South Wales
Date: 10 March 2009
Judge(s): Berman SC DCJ

Background

The accused faced a charge of sexual intercourse without consent. The alleged victim had attended a party at the accused's home, consumed a significant amount of alcohol, and fallen asleep. The prosecution alleged that the accused had sexual intercourse with her while she was asleep.

Before the jury was empanelled, the Crown applied to admit tendency evidence from two other women, ZM and AG. Both women alleged that, after attending separate parties at the accused's home, drinking heavily, and falling asleep, they woke to find the accused sexually assaulting them. The accused had already been convicted in separate proceedings arising from those two incidents, but the Crown proposed to call ZM and AG without mentioning those prior convictions.

Defence counsel objected to the admission of this tendency evidence, arguing that it lacked the significant probative value required by s 97 of the Evidence Act 1995 and that its prejudicial effect outweighed its probative value under s 101(2).

  • Whether the proposed tendency evidence had "significant probative value" within the meaning of s 97 of the Evidence Act 1995.
  • Whether the probative value of the tendency evidence "substantially outweighs any prejudicial effect it may have on the defendant" under s 101(2), and specifically how to interpret "prejudicial effect" in that provision given that, unlike ss 135 and 137, s 101(2) omits the word "unfair".
  • Whether the differences between the conduct alleged by the complainant in the present trial and that alleged by ZM and AG were sufficient to exclude the evidence.

Decision

The "unfair" omission in s 101(2)

Defence counsel drew the court's attention to a textual anomaly: s 101(2) requires that probative value "substantially outweighs any prejudicial effect", but unlike ss 135 and 137, s 101(2) does not qualify that prejudice as "unfair". Berman SC DCJ accepted that this omission created a logical problem. All probative Crown evidence prejudices an accused to some degree. If "prejudicial effect" in s 101(2) were read literally, without any element of unfairness, no tendency evidence could ever be admitted, because any evidence with the significant probative value required by s 97 would automatically produce an equivalent degree of prejudice.

The court resolved this by interpreting "prejudicial effect" in s 101(2) as meaning unfair prejudicial effect. This reading avoided an absurdity and aligned with the Court of Criminal Appeal's reasoning in Colby v The Queen [1999] NSWCCA 261, where Mason P held that prejudice under that provision is not established merely by the weight of the evidence on the ultimate issue; the focus is on the danger that the jury will use the evidence on a basis logically unconnected with the issues in the case. The court also found support in Stephen Odgers' Uniform Evidence Law and the ALRC's Report 102, both of which concluded that the omission of "unfair" should be treated as unintentional and that the concept of unfair prejudice was properly implied.

Significant probative value and the tendency established

Having resolved the construction question, the court examined the proposed evidence on its merits. It was satisfied that the three sets of allegations disclosed a tendency on the accused's part to sexually assault women who were asleep at his home after drinking heavily at parties there. The court described this pattern as "unusual" behaviour, and the combination of two additional complainants, rather than one, reinforced its probative force. The temporal gap of approximately four months between the charged offence and the conduct alleged by ZM and AG was not regarded as significant enough to undermine that tendency.

Differences between the allegations

The court acknowledged relevant differences: the charge before it involved sexual intercourse and an allegation that the accused did not stop when the complainant awoke, whereas the incidents involving ZM and AG involved sexual assault without intercourse and the accused apparently desisting when told to do so. Berman SC DCJ took these distinctions into account but did not regard them as sufficient to defeat admissibility. The central commonality, being the targeting of intoxicated, sleeping women at parties in the accused's home, was the defining feature of the tendency.

Residual prejudice concerns

The court rejected the argument that the sheer weight of numbers amounted to unfair prejudice. The strength of the Crown case as a result of the evidence did not, in itself, render the prejudice unfair. The court was satisfied that appropriate jury directions would address any risk that the jury might convict as punishment for the earlier conduct or overestimate the evidence's probative force.

Orders Made

  • The tendency evidence of ZM and AG was admitted.

Key Takeaways

  • The District Court held that "prejudicial effect" in s 101(2) of the Evidence Act 1995 is to be read as meaning unfair prejudicial effect, notwithstanding the absence of the word "unfair" from that provision. Reading it otherwise would produce an absurdity, rendering no tendency evidence admissible.
  • The Court of Criminal Appeal's decision in Colby v The Queen [1999] NSWCCA 261 was treated as binding authority for the proposition that prejudice under s 101(2) requires more than the mere weight of the evidence against the accused; the relevant concern is the danger of the jury using the evidence on a basis logically disconnected from the issues in the case.
  • A pattern of sexually assaulting intoxicated, sleeping women at the accused's own home was characterised as sufficiently unusual conduct to satisfy the "significant probative value" threshold in s 97.
  • Differences between the specific acts alleged by multiple complainants do not necessarily defeat admissibility of tendency evidence; the court weighs those differences against the points of similarity when assessing overall probative value.
  • A powerful Crown case resulting from the admission of tendency evidence does not, without more, establish unfair prejudice sufficient to exclude the evidence under s 101(2).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101, 135, 137

Cases
- Colby v The Queen [1999] NSWCCA 261
- DPP v Boardman [1975] AC 421

Texts
- Stephen Odgers, Uniform Evidence Law (8th ed)
- Australian Law Reform Commission, Report 102 (Review of the Evidence Act 1995)