AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 13 October 2011

R v RJ

[2011] NSWDC 158

Sexual offencesPublic order & justice offences
LATE SERVICE OF NOTICE BY CROWN

Citation: R v RJ [2011] NSWDC 158
Court: District Court of NSW
Date: 13 October 2011
Judge(s): Colefax SC DCJ

Background

The accused faced an indictment containing eight counts of sexual offences alleged to have occurred between January 1990 and September 2000. The complainant was approximately two and a half years old at the time of the first alleged offence and approximately sixteen at the time of the last. The accused pleaded not guilty to all counts.

Before a jury was empanelled, the court conducted a voir dire (a preliminary hearing to determine admissibility of evidence). The Crown sought to adduce tendency evidence, relying on a notice served on 23 September 2011, despite the accused having been arraigned on 16 June 2011 following committal on 20 May 2011. The notice was therefore significantly out of time, and the Crown offered no explanation for the delay.

Legal Issues

  • Whether the court should dispense with the statutory notice requirements under the Evidence Act 1995 (NSW), given the Crown's late service of the tendency notice
  • Whether the tendency evidence particularised in the notice satisfied the requirements of ss 97(1)(b) and 101 of the Evidence Act
  • Whether the probative value of the proposed tendency evidence outweighed any prejudice to the accused
  • Whether repeated Crown non-compliance with statutory notice requirements could, in an appropriate case, independently justify refusing to dispense with those requirements

Decision

Issue 1: Dispensation from notice requirements

The Crown applied orally at the commencement of the voir dire for an order dispensing with the statutory notice requirements. Under the Evidence Act, failure to give reasonable notice of an intention to adduce tendency evidence renders that evidence inadmissible absent such a dispensation. The defence opposed the application on grounds of prejudice and insufficient probative value.

Issue 2: Whether the notice met ss 97(1)(b) and 101

The primary focus of the voir dire became whether the tendency notice met the statutory thresholds in ss 97(1)(b) and 101 of the Evidence Act. The court ultimately declined to permit the Crown to lead tendency evidence, concluding the notice did not satisfy those provisions. The court also declined to permit detailed evidence of uncharged acts, though it allowed brief and general evidence of those matters to explain the absence of contemporaneous complaint, consistent with the approach endorsed in HML v R (2008) HCA 16.

Issue 3: Repeated non-compliance as an independent ground for refusal

The court made observations, described as important, about a broader concern. The Court of Criminal Appeal in R v Harker [2004] NSWCCA 427 had identified probative value and prejudice as the primary considerations on a dispensation application, but had not considered whether repeated Crown non-compliance with notice requirements could itself justify refusal. Colefax SC DCJ noted that non-compliance is not merely a case management concern but amounts to disregarding the express will of Parliament. His Honour indicated there may be an appropriate case where repeated non-compliance alone, irrespective of probative value versus prejudice, would justify refusing dispensation. The court stopped short of deciding the point, noting it would require fuller argument, but directed that this portion of the judgment be published on Caselaw given the significance of the issue.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court refused to permit the Crown to adduce tendency evidence where the notice was served well out of time and the Crown offered no explanation for the delay.
  • Under the Evidence Act 1995 (NSW), failure to give reasonable notice of an intention to adduce tendency evidence renders that evidence inadmissible unless the court exercises its discretion to dispense with the notice requirements.
  • A court may permit brief and general evidence of uncharged acts to explain the absence of contemporaneous complaint, without permitting detailed tendency evidence, following the approach in HML v R (2008) HCA 16.
  • Colefax SC DCJ flagged, without finally deciding, that habitual Crown non-compliance with statutory notice requirements may in an appropriate case independently justify refusing dispensation, regardless of how probative value and prejudice are weighed against each other.
  • Non-compliance with tendency notice requirements was characterised not merely as a procedural irregularity but as a failure to observe Parliament's express legislative intention, a characterisation with potential significance for future applications.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- HML v R (2008) HCA 16
- R v Harker [2004] NSWCCA 427