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19
Court of Criminal Appeal 17 September 2010

Regina v PWD

[2010] NSWCCA 209

Also reported as (2010) 205 A Crim R 75
Sexual offences
CRIMINAL LAW APPEAL CRIMINAL APPEAL ACT 1912, S 5F (3A) CRIMINAL LAW APPEAL INTERLOCUTORY ORDERS

Citation: Regina v PWD [2010] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 17 September 2010
Judge(s): Beazley JA; Buddin J; Barr AJ

Background

The respondent, a former principal of a Catholic boarding college in regional NSW, faced ten counts of sexual misconduct alleged to have occurred between 1977 and 1992 against four male students. The conduct alleged varied considerably across complainants, ranging from physical contact during piano lessons to more serious sexual acts.

Before trial in the District Court, the prosecution filed a tendency notice seeking to use the evidence of all four complainants, plus two additional witnesses, as cross-admissible tendency evidence. The Crown's case was that this body of evidence established a tendency in the respondent to have a sexual interest in young male students and to act on that interest.

The trial judge, Flannery DCJ, ruled the tendency evidence inadmissible on the basis that the acts described were too different from one another to carry significant probative value. Her Honour also ordered four separate trials, one for each complainant. The Director of Public Prosecutions appealed that ruling under the Criminal Appeal Act 1912.

  • Whether the Crown had a right of appeal under s 5F(3A) of the Criminal Appeal Act 1912, specifically whether the ruling excluding the tendency evidence "eliminated or substantially weakened" the prosecution's case
  • Whether the proposed tendency evidence met the threshold of "significant probative value" required by s 97 of the Evidence Act 1995
  • Whether tendency evidence requires a pattern of behaviour, modus operandi, or "striking similarity" between the individual acts relied upon
  • Whether the ten counts on the indictment should be tried together or in separate trials

Decision

The Court of Criminal Appeal allowed the appeal, vacated the District Court's rulings, declared the tendency evidence admissible, and ordered all ten counts to be tried together.

On the s 5F(3A) threshold, the Court was satisfied that the District Court's ruling substantially weakened the prosecution's case. Without cross-admissibility, each complainant's evidence would be assessed in isolation as a sole incident reported many years after the alleged events. That significantly diminished the strength of each individual case.

On the central question of significant probative value under s 97, the Court found that the trial judge had applied an overly demanding standard. The Court rejected the proposition that tendency evidence requires a pattern of behaviour, a specific modus operandi, or "striking similarity" between the acts relied upon. Those concepts, drawn from the older common law coincidence evidence framework, are inappropriate when applied to the tendency rule under the uniform Evidence Act. The tendency being established here was a sexual interest in young male students and a preparedness to engage in sexual conduct with them. That tendency, the Court concluded, was sufficiently supported by the proposed evidence, even though the specific acts varied in nature and circumstance across complainants.

The Court also declined to subdivide the counts into two separate groupings as suggested during argument. Because the tendency evidence was admissible across all counts, there was no principled basis for partial separation of the indictment.

Orders Made

  • The rulings made by Flannery DCJ on 7 May 2010 are vacated
  • The tendency evidence contained in the prosecution's notice dated 19 April 2010 is admissible pursuant to s 97(1) of the Evidence Act 1995
  • Counts 1 to 10 on the indictment are to be tried together

Key Takeaways

  • Under s 97 of the Evidence Act 1995, tendency evidence must have "significant probative value," but this does not require the individual acts relied upon to display a pattern, modus operandi, or striking similarity to one another.
  • The Court of Criminal Appeal confirmed that concepts such as "striking similarity" and "system evidence" belong to the common law coincidence evidence framework and should not be imported into the tendency evidence analysis under the uniform Evidence Act.
  • A tendency can be established at a relatively high level of generality. In this case, a sexual interest in young male students and a readiness to act on that interest was sufficient, even where the specific alleged conduct varied materially across complainants.
  • For the purposes of s 5F(3A) of the Criminal Appeal Act 1912, excluding tendency evidence that would otherwise render each complainant's account an isolated, historic allegation will ordinarily satisfy the requirement that the prosecution's case has been "substantially weakened."
  • Juries are capable of receiving tendency evidence from multiple complainants in a single trial and applying it appropriately when properly directed, and that capacity is a relevant consideration in assessing admissibility.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912, ss 5F(2), 5F(3A)
- Evidence Act 1995, s 97 (the tendency rule)

Cases
- HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 303
- Phillips v R [2006] HCA 4; (2006) 225 CLR 303
- Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
- Hoch v R [1988] HCA 50; (1988) 165 CLR 292
- DPP v P [1991] 2 AC 447
- R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
- Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306
- R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- PNJ v DPP [2010] VSCA 88
- R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375
- R v MMK [2003] NSWCCA 364
- R v Li [2003] NSWCCA 407
- R v Lockyer (1996) 89 A Crim R 457
- R v Harker [2004] NSWCCA 427
- R v Milton [2004] NSWCCA 195
- R v RN [2005] NSWCCA 413
- Ibrahim v Pham [2007] NSWCA 215