Citation: R v SK; SK v R [2011] NSWCCA 292
Court: Court of Criminal Appeal
Date: 1 April 2011
Judges: Giles JA, Latham J, Rothman J
Background
The accused was facing a proposed indictment of 19 counts covering indecent assault, sexual intercourse, and attempted sexual intercourse against four complainants, all young relatives, between 1980 and 2003. Three complainants were female (two sisters and a second cousin), and one was male (the brother of the two sisters). All complainants were aged between 6 and 13 at the time of the alleged offences. The accused, then aged 50, had used regular family gatherings at his parents' home to gain access to the children.
At the interlocutory stage, the trial judge (Syme DCJ) admitted tendency evidence relating to the three female complainants but excluded the male complainant's evidence from that tendency analysis, concluding his gender difference meant the tendency could not be sustained across all four complainants. The judge ordered a separate trial for the counts involving the male complainant and declined to order separate trials for the three female complainants.
Both the accused and the Crown challenged aspects of those rulings. The accused sought leave to appeal against the admission of tendency evidence and the refusal of separate trials. The Crown appealed against the severance order and the finding that the male complainant's evidence was inadmissible as tendency evidence in the trial relating to the female complainants.
Legal Issues
- Whether the tendency evidence had significant probative value substantially outweighing any prejudicial effect, satisfying the test under s 101 of the Evidence Act 1995
- Whether the trial judge erred in finding no specific prejudice to the accused from a joint trial of the counts involving the three female complainants
- Whether the trial judge erred in finding no reasonable possibility of concoction among the four complainants
- Whether the trial judge erred in excluding the male complainant's evidence as tendency evidence in the trial concerning the female complainants, on the basis of gender difference
Decision
Ground 1: Probative value versus prejudicial effect
The Court rejected the argument that the trial judge's acknowledgment of some uncertainty in the weighing exercise was inconsistent with a finding of significant probative value. Latham J characterised the trial judge's remarks as recognising the evaluative and predictive nature of the exercise, not as expressing doubt about the outcome. The temporal gaps between the alleged offending against successive complainants were held to reinforce, rather than undermine, probative value: they were an integral feature of the accused's alleged pattern of moving from one generation of young family members to the next as each aged out of his reach.
Ground 2: No specific prejudice from a joint trial
The Court agreed with the trial judge that the accused had not identified any specific prejudice beyond the generic prejudice inherent in all tendency evidence. General assertions about jury antipathy, assumptions of guilt, and the propensity of sexual cases to arouse prejudice did not constitute the specific prejudice required to compel separate trials. The pre-Evidence Act cases cited by the accused (including Sutton, De Jesus, and Hoch) were of no assistance given the current framework discussed in DJV v R [2008] NSWCCA 272.
Ground 3: Reasonable possibility of concoction
The Court declined to disturb the trial judge's factual finding. The trial judge had heard the complainants give evidence and be cross-examined extensively. The accused did not argue that the wrong test was applied or that the finding was not open on the evidence. This ground was dismissed.
Crown appeal: Male complainant's evidence as tendency evidence
The Court accepted the Crown's submission and held that the trial judge erred in excluding the male complainant's evidence on the basis of gender difference. The tendency the Crown sought to prove was not defined by the gender of the complainants. It was defined by the accused's alleged pattern of selecting young relatives visiting his home, exercising control over the environment, and maintaining that conduct until each complainant reached approximately 14 years of age. The male complainant was the next available young relative after the female complainants grew older. Gender was not a feature of the tendency notice, and its absence did not prevent the evidence from satisfying s 97 of the Evidence Act.
Rothman J added observations clarifying the distinction between tendency evidence under s 97 and coincidence (similar fact) evidence under s 98 of the Act. Tendency evidence does not require striking similarities between incidents. It requires proof of a tendency to act in a particular way, and the evidence must have significant probative value by showing a propensity to engage in the specific kind of conduct charged, not merely criminal conduct generally.
Orders Made
- Crown appeal allowed
- Applicant's application dismissed
Key Takeaways
- Under s 97 of the Evidence Act 1995, tendency evidence does not require striking similarity between incidents. The Court of Criminal Appeal confirmed that all that is required is evidence of a tendency to act in a particular way, with significant probative value in relation to the conduct charged.
- A temporal gap between alleged offending against different complainants is not necessarily a factor that diminishes probative value. Where a pattern of sequential offending against successive young relatives forms the Crown's case, those gaps may themselves support the tendency.
- Gender difference between complainants does not automatically preclude evidence from qualifying as tendency evidence. The relevant question is whether the proposed tendency, as articulated in the notice, encompasses all complainants, regardless of gender.
- Generalized submissions about jury prejudice, including references to antipathy or assumptions of guilt, are insufficient to establish the specific prejudice needed to justify separate trials or exclusion of tendency evidence under s 101.
- Rothman J drew a clear analytical distinction between s 97 (tendency evidence, concerned with propensity to act in a particular way) and s 98 (coincidence evidence, concerned with the improbability of coincidence), noting that evidence may sometimes satisfy both tests but the applicable test determines the reasoning process permitted at trial.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912
- Evidence Act 1995
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