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District Court 27 July 2012

R v RD

[2012] NSWDC 242

Sexual offences
CRIMINAL LAW EVIDENCE TENDENCY RISK OF CONCOCTION AND CONTAMINATION SIMILARITY OF ACTS DISTANCE IN TIME

Citation: R v RD [2012] NSWDC 242
Court: District Court of New South Wales
Date: 27 July 2012
Judge(s): Murrell SC DCJ

Background

The accused was charged with 12 counts of aggravated sexual intercourse and aggravated indecent assault involving three young girls (referred to as A, B and C), all of whom were aged between 5 and 8 at the time of the alleged offences in 2002. The girls resided at a motel or caravan park managed by the accused. A and B were sisters; A and C were friends.

The Crown sought to adduce the evidence of each complainant as tendency evidence in the trials relating to the other complainants. The Crown's position was that this evidence demonstrated a tendency by the accused to be sexually interested in young girls and to act upon that interest. The application was heard on a voir dire (a preliminary hearing to determine whether evidence is admissible).

The court was asked to rule on whether the evidence of each complainant had "significant probative value" and whether that probative value "substantially outweighed" any unfair prejudice to the accused, as required under sections 97 and 101 of the Evidence Act 1995 (Cth).

  • Whether the evidence of each complainant had "significant probative value" within the meaning of section 97 of the Evidence Act 1995 (Cth) so as to establish a tendency by the accused to be sexually interested in young girls and to act on that interest.
  • Whether, under section 101, the probative value of that tendency evidence substantially outweighed any unfair prejudice to the accused.
  • Whether there was a real risk that the accounts of any complainants had been concocted or contaminated through prior communication between them, such that tendency use should be refused.
  • Whether the evidence of A and B could be used as tendency evidence in each other's trials given their interactions and disclosures.

Decision

The court ruled that tendency evidence would be admitted in the trials relating to A and C in respect of each other, but would not be admitted to cross-use the evidence of A and B in their respective trials. The Crown did not pursue the application in relation to a fourth complainant, D, and withdrew several other proposed tendency matters before the ruling.

On the question of concoction and contamination between A and C, the court found no real risk. A had told C in 2002 that the accused had touched her and "inserted cream," and C reportedly replied that "he is doing the same things." However, C did not mention the cream-related allegation (the basis for count 9) until her 2011 statement, and her 2003 police interview contained no reference to it. The court reasoned that if C's account had been contaminated or concocted from A's disclosure, those details would have appeared much earlier. The court also noted that C's evidence was particularly probative given the complainants were the same age and the alleged conduct was closely similar.

By contrast, the court found that A and B presented a different picture. The two sisters had discussed the alleged conduct on multiple occasions before either made a formal complaint. A had raised the subject with B and asked whether similar things had happened to her. B's more detailed account emerged only in 2011 statements, which were more incriminating than her original 2002 disclosures. The court was not satisfied that the risk of concoction or contamination between A and B could be dismissed, and applying the reasoning from Hoch v The Queen, declined to admit cross-tendency evidence in their respective trials.

The court found no basis to admit A's Queensland conduct evidence or the photograph of the naked girl as tendency evidence, and the Crown did not press those matters at the hearing.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that tendency evidence between co-complainants in separate trials requires careful individual assessment of concoction and contamination risks, not a single global ruling.
  • Under sections 97 and 101 of the Evidence Act 1995 (Cth), tendency evidence is only admissible where it has significant probative value and that probative value substantially outweighs any unfair prejudice to the accused.
  • Where complainants have had meaningful prior communications about alleged conduct, the court must assess whether those communications create a "real risk" of contamination or concoction before admitting cross-complainant tendency evidence. The timing and content of disclosures are central to that assessment.
  • Delay in disclosing a particular allegation can, in some circumstances, support rather than undermine admissibility: the court treated C's failure to mention the cream-related conduct until 2011 as evidence against contamination from A's earlier account.
  • Similarity of conduct and the comparable ages of complainants at the time of alleged offences were treated as factors increasing the probative value of tendency evidence, consistent with the approach taken in cases such as R v Cittadini and BP v R.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (Cth), ss 97, 101

Cases:
- R v Cittadini [2008] NSWCCA 256
- Dao v R [2011] NSWCCA 63
- R v PWD [2010] NSWCCA 209
- AE v R [2008] NSWCCA 52
- Hoch v The Queen (1988) 165 CLR 292
- BP v R [2010] NSWCCA 261
- R v OGD [2000] NSWCCA 404