Citation: R v SK; SK v R [2011] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 1 April 2011 (orders made 27 September 2010)
Judge(s): Giles JA, Latham J, Rothman J
Background
The applicant, a man then aged 50, faced 19 counts of sexual offences allegedly committed between 1980 and 2003 against four complainants: three female complainants (KD, WS, and DiS) and one male complainant (DaS). The applicant was the uncle of WS, DiS, and DaS, and the second cousin of KD. All four complainants were between six and thirteen years of age at the time of the alleged offences. The Crown alleged that the applicant used entertainment facilities in his bedroom to groom children during regular family gatherings and then sexually assault them.
At the trial level, the District Court judge ruled that the evidence of the three female complainants was admissible as tendency evidence at a joint trial on those counts, but found that DaS's evidence was inadmissible as tendency evidence in the female complainants' trial, citing the "gender difference." This led to an order severing the counts relating to DaS into a separate trial.
Both parties sought to appeal interlocutory rulings. The applicant sought leave to appeal against the admission of tendency evidence and the refusal to order separate trials for each complainant. The Crown appealed against the severance order and the ruling that DaS's evidence was inadmissible as tendency evidence in the main trial.
Legal Issues
- Whether the evidence of each complainant had "significant probative value" sufficient to satisfy the admissibility test for tendency evidence under s 97 of the Evidence Act 1995 (NSW)
- Whether the risk of jury misuse of the tendency evidence required separate trials for each complainant
- Whether the trial judge erred in finding that the male complainant's evidence could not support the stated tendency because of gender difference, and in severing the counts relating to him
Decision
The Court of Criminal Appeal dismissed the applicant's application for leave to appeal and allowed the Crown appeal. It ruled that the evidence of all four complainants was admissible as tendency evidence in a single trial on all counts.
On probative value, the Court was satisfied that the tendency described in the Crown's notice was sufficiently specific to carry significant probative value. The tendency was not merely a general propensity toward sexual interest in children; it was a particularised pattern of conduct involving children of relatives, aged 14 or under, visiting the applicant's home, drawn into his bedroom or engaged while watching television, and subjected to sexual touching or intercourse. The Court confirmed that a "striking pattern of similarity" is not required under s 97; the test is whether the evidence makes the relevant facts significantly more likely. Each complainant's account satisfied that test.
On the question of concoction, the Court noted that the trial judge had accepted the evidence on the voir dire (a preliminary hearing to determine admissibility) establishing that the complainants had not discussed the details of their accounts with each other. KD had made an early complaint to her sister in 1993, DiS and WS had independently reported to the Department of Community Services in 2003, and DaS had made disclosures in 2004 and 2005 without knowledge of the details of the other complaints. The absence of a reasonable possibility of fabrication or contamination supported the finding of significant probative value.
On the severance of DaS's counts, the Court found the trial judge had erred. The stated tendency encompassed both male and female children, and DaS's account bore the same highly specific characteristics as the female complainants' accounts: a family relationship, visiting the applicant's home, being taken into his bed, and being subjected to sexual touching. Gender difference alone did not displace the significant probative value of DaS's evidence in the trial concerning the other complainants.
Orders Made
No orders were made in this decision.
Key Takeaways
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Under s 97 of the Evidence Act 1995, tendency evidence is admissible where it has "significant probative value." The Court of Criminal Appeal confirmed that this does not require a "striking pattern of similarity" between incidents; it is sufficient that the evidence makes the facts in issue significantly more likely.
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A tendency notice drafted at a high level of generality (for example, a bare sexual interest in children) may lack the specificity required to establish significant probative value. Where the tendency is framed with particularity, including the setting, the relationship between offender and victim, and the mode of conduct, the threshold is more readily met.
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The absence of a reasonable possibility of concoction is a relevant consideration in assessing probative value. Independent, early complaints made without knowledge of co-complainants' accounts bear on this assessment.
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Gender difference between complainants does not automatically preclude their evidence from being admitted as tendency evidence in a joint trial, where the defined tendency encompasses both genders and the specific circumstances of the alleged conduct are otherwise materially similar.
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In dismissing the applicant's application and allowing the Crown appeal, the Court reinforced that rulings on the admissibility of tendency evidence and orders for separate trials are closely connected: a finding of significant probative value across multiple complainants weighs against severance.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(2), 5F(3)(a)
- Evidence Act 1995 (NSW), s 97
Cases
- De Jesus v The Queen (1986) 68 ALR 1
- DJV v R [2008] NSWCCA 272
- Hoch v The Queen [1988] HCA 50
- R v Fletcher [2005] NSWCCA 338
- R v Ford [2009] NSWCCA 306
- R v Milton [2004] NSWCCA 195
- R v Watkins (2005) 153 A Crim R 434
- Regina v PWD [2010] NSWCCA 209
- Sutton v The Queen (1984) 152 CLR 528
- Townsend v Townsend [2001] NSWCA 136