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District Court 18 February 2010

R v Wong, Zany

[2010] NSWDC 32

Sexual offences
CRIMINAL LAW INTERLOCUTORY JUDGMENT APPLICATION FOR SEVERENCE OF CHARGES EXCLUSE UNCHARGED ACTS

Citation: R v Wong, Zany [2010] NSWDC 32
Court: District Court of New South Wales
Date: 18 February 2010
Judge(s): Nicholson SC DCJ

Background

The accused, a man of Chinese heritage and Burmese origin, was arraigned on ten counts of sexual assault and indecency alleged to have been committed against three female complainants. All parties were members of a small Burmese-Chinese community in north-western Sydney. The alleged offences spanned from 2001 to 2007 and involved different complainants at different times.

Prior to trial, defence counsel brought a series of interlocutory applications challenging the structure of the indictment and the admissibility of certain categories of evidence. The Crown had also served tendency and coincidence evidence notices, nominating overlapping slabs of evidence under both heads.

A central evidentiary issue arose from an "apology ceremony" held on 24 May 2009, in which the accused had participated and signed a document acknowledging the allegations made against him by the complainants. The admissibility of that ceremony, and of the signed document, was contested.

  • Whether the counts on the indictment, relating to three separate complainants, should be severed so that each trial concerned only one complainant.
  • Whether the Crown should be permitted to lead coincidence evidence under the Evidence Act 1995.
  • Whether the Crown should be permitted to lead tendency evidence under the Evidence Act 1995.
  • Whether evidence of uncharged acts, including conduct towards a fourth complainant, should be admitted.
  • Whether evidence of the apology ceremony, including a signed document and DVD footage, was admissible, and if so, to what extent.

Decision

Coincidence and tendency evidence: The Crown conceded early that the nominated evidence could not properly qualify as coincidence evidence. On the tendency question, the court engaged closely with the proposed tendency matters, which included the accused selecting female acquaintances from a small close-knit community, using mobile phone contact to make sexually suggestive remarks, making uninvited appearances at complainants' homes followed by sexual approaches, and touching of breasts and genitalia. The court rejected both the coincidence and tendency evidence applications. The Crown also conceded that evidence of uncharged acts involving a fourth complainant should be excluded, and the court did not need to rule on that application formally.

Severance: Because the tendency evidence application failed, there was no evidentiary basis for joining the counts relating to different complainants in a single trial. The court granted the defence application for severance, directing that each indictment arising from the original would refer to one complainant only.

Apology ceremony: The court found that the accused's participation in the apology ceremony was voluntary. He had agreed to participate days beforehand, attended with his family, and signed a document acknowledging the conduct alleged by the complainants. The court was satisfied his will was not overborne, notwithstanding that the process was embarrassing, humiliating, and emotionally difficult for him.

The court admitted the signed document and those portions of the DVD footage sufficient to establish the fact and nature of the apology. However, the court excluded some parts of the ceremony, including an emotionally charged personal conversation that occurred after the formal proceedings concluded. That portion was excluded in chief, though leave was reserved for either party to apply for further portions to be admitted during the trial if necessary to restore evidentiary balance or provide fuller context.

Orders Made

  • Crown application to lead coincidence evidence: rejected.
  • Crown application to lead tendency evidence: rejected.
  • Defence application for severance granted: each indictment to refer to one complainant only.
  • Portions of the apology ceremony identified in the judgment admitted in the form indicated.
  • Remainder of the apology ceremony excluded, with leave reserved for the Crown or defence to apply for further portions to be admitted to redress balance, give further explanation, or for other reasons arising at trial.

Key Takeaways

  • The District Court rejected both tendency and coincidence evidence applications where the Crown's nominated evidence could not satisfy the requirements for either category under the Evidence Act 1995, emphasising the need for precision in identifying what the proposed tendency actually is.
  • Where tendency evidence fails, a joint indictment encompassing offences against multiple complainants may not be sustainable, and severance becomes the appropriate course.
  • An accused's participation in a culturally significant apology ceremony, including signing a document acknowledging the complainants' allegations, can be admissible as a form of admission where the court is satisfied the participation was voluntary and the accused's will was not overborne.
  • The fact that an apology occurred in an emotionally charged or culturally pressured setting does not automatically render participation involuntary, though the surrounding circumstances remain relevant to the admissibility assessment.
  • Partial admission of ceremony evidence is available: the court admitted the core apology materials while excluding a later informal conversation, with liberty for parties to seek admission of further portions during the trial to maintain evidentiary balance.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW) (tendency and coincidence provisions)

Cases:
- AE v R [2008] NSWCCA 52
- Hock v The Queen (1988) 165 CLR 292