Citation: R v Stevens [2011] NSWDC 81
Court: District Court of New South Wales
Date: 4 July 2011
Judge: Berman SC DCJ
Background
The accused faced trial on multiple counts of sexual assault alleged to have occurred on a single occasion against one complainant. The complainant, a Danish tourist, recalled being separated from a friend at a nightclub and waking naked in bed with a stranger who was performing sexual acts on her. A DNA match later linked the accused to semen found during a medical examination.
The Crown sought to call evidence from a different complainant in an earlier matter, for which the accused had been convicted by a jury on one count of digital penetration. In that prior matter, the complainant had fallen asleep after accepting red wine from the accused and was woken by sexual activity.
The Crown argued this earlier evidence established a tendency in the accused to act in a sexually opportunistic or predatory way toward young intoxicated women, removing them from public to private places before sexually assaulting them. The defence opposed admission of the evidence. Identity was not in dispute, so the relevant facts in issue were consent and the accused's awareness of non-consent.
Legal Issues
- Whether the tendency evidence had significant probative value under the Evidence Act, in circumstances where identity was not disputed
- Whether the Crown could lead evidence that a jury had convicted the accused on the earlier occasion
- Whether there was a risk of unfair prejudice arising from the jury potentially treating the evidence as coincidence evidence rather than tendency evidence
Decision
Berman SC DCJ undertook a careful analysis of the thirteen points of similarity the Crown relied upon. His Honour identified two important cautions when assessing such lists: first, multiple listed similarities can in substance amount to only one point; and second, similarities that merely reflect the ordinary manner in which a crime of that type is committed carry limited probative weight.
Applying those cautions, his Honour found that most of the alleged similarities were either unremarkable, not truly parallel between the two incidents, or reflected common features of late-night sexual assaults rather than any distinctive tendency. For instance, both complainants having consumed alcohol, the events occurring late at night, and sexual activity taking place in a private location to which the accused had access were all considered unsurprising in context rather than distinctively probative.
The point his Honour described as most troubling was the assertion that both complainants were woken by sexual activity. He accepted the defence submission that this similarity was more consistent with a finding about knowledge or belief as to consent, rather than evidence of a tendency to act in a particular way. Given that consent was the central issue, the tendency evidence needed to go beyond simply reflecting the same allegation.
Because the evidence did not reach the threshold of significant probative value, his Honour did not need to resolve the prejudice question. He nonetheless observed that, had the evidence been admissible, he would not have permitted the Crown to lead evidence of the jury's verdict in the earlier trial. He also noted a real risk that the jury might use the evidence as coincidence evidence despite the Crown framing it exclusively as tendency evidence, which would have constituted significant prejudice.
Orders Made
- The tendency evidence is rejected as having no significant probative value.
Key Takeaways
- A long list of alleged similarities between tendency evidence and the charged offence does not automatically establish significant probative value; a court must scrutinise whether the listed similarities are genuinely distinct and whether they go beyond the ordinary features of crimes of that type.
- Where identity is not in dispute and the fact in issue is consent, tendency evidence must do meaningful work on that specific question to satisfy the significant probative value threshold under the Evidence Act.
- The District Court confirmed that evidence of a jury's prior conviction of an accused is not admissible in a subsequent trial, because the views of twelve jurors on an earlier complainant's evidence are irrelevant to whether a different jury should accept that same complainant's evidence on a later occasion.
- A risk arises when the Crown relies exclusively on tendency evidence but the jury may reason from coincidence instead; the District Court treated this as a significantly prejudicial factor, even though the point was not ultimately determinative.
- All evidentiary rulings are made on the state of the evidence at the time of the ruling, and changed circumstances at trial may affect whether previously rejected evidence becomes admissible.
Legislation and Cases Referenced
Legislation
- Evidence Act (NSW)
Cases
- R v O'Keefe [2009] NSWCCA 121
- Phillips v The Queen (2006) 225 CLR 303
- Stubley v Western Australia [2011] HCA 7