Citation: D v Director of Public Prosecutions (NSW) [2013] NSWSC 60
Court: Supreme Court of New South Wales
Date: 8 February 2013
Judge: Schmidt J
Background
The plaintiff faced two charges under the Crimes Act 1900 (NSW) relating to alleged acts of indecency against two female complainants, both aged 15 or 16 at the relevant times. The first alleged incident occurred in January 2007 at a family new year's eve party, involving the plaintiff's niece. The second occurred in July 2009 at the plaintiff's delicatessen, involving a casual employee. The charges were to be heard together in the Local Court before a magistrate, sitting without a jury.
In July 2012, the magistrate refused the plaintiff's application for the two charges to be heard separately. The magistrate also ruled that each complainant's evidence was admissible as tendency and coincidence evidence against the plaintiff under the Evidence Act 1995 (NSW). The parties had agreed that the tendency and coincidence ruling would determine the separate trial question.
The plaintiff sought leave to appeal to the Supreme Court under section 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), arguing the magistrate had erred both in the evidentiary ruling and in failing to give adequate reasons, particularly in relation to the balancing exercise required under section 101 of the Evidence Act.
Legal Issues
- Whether the Supreme Court had jurisdiction to hear an appeal from a refusal of a separate trial application where no formal order had been entered
- Whether the magistrate had given adequate reasons for his decision, particularly in relation to the balancing exercise under section 101 of the Evidence Act
- Whether the evidence of the two complainants had significant probative value as tendency evidence under section 97 of the Evidence Act
- Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect on the plaintiff under section 101
- Whether the evidence satisfied the requirements for coincidence evidence under section 98 of the Evidence Act
- Whether the two charges formed part of a series of offences of the same or similar character justifying a joint hearing under section 29 of the Criminal Procedure Act 1986 (NSW)
Decision
Jurisdiction
The court found that it had jurisdiction to entertain the appeal, notwithstanding the absence of a formal dismissal order. Applying the principle that such questions must be determined as a matter of substance rather than form, Schmidt J concluded that an interlocutory order had been made in effect, and that the parties could even then have asked for a formal order to be entered. The ruling did not finally dispose of the parties' rights and remained capable of being revisited at trial if circumstances changed (at [16]-[18]).
Leave to Appeal
Leave was granted. The court acknowledged that leave under section 53(3)(b) is not readily given, given the undesirability of fragmenting criminal proceedings. However, the ruling was critical to the joint trial decision, no trial date had been set, and the plaintiff had established that the magistrate failed to give adequate reasons for the balancing exercise required under section 101 of the Evidence Act (at [21]-[23]).
Adequacy of Reasons and Section 101
The court accepted that the magistrate correctly identified the applicable legal tests and responded to the cases as argued. However, the magistrate's reasons contained no explanation of why the balancing exercise under section 101 favoured admission of the evidence. That omission constituted the error identified on appeal (at [55]-[56]). Despite this, the court went on to conduct its own analysis of the section 101 question.
Tendency Evidence (Section 97) and the Section 101 Balance
The court found that the magistrate's conclusion that the evidence had significant probative value was well open on the material. Both alleged incidents involved the plaintiff acting on a sexual interest in young female complainants with whom he had an ongoing relationship, when he found himself alone with them (at [67]-[75]). On the section 101 balance, the court concluded that the probative value of the evidence clearly outweighed any prejudicial effect. The risk of impermissible or irrational reasoning, often cited in jury contexts, was significantly reduced because the matter was to be assessed by a magistrate rather than a jury (at [77]-[79]).
Coincidence Evidence (Section 98)
The court upheld the magistrate's conclusion that the evidence also satisfied the requirements for coincidence evidence. The relevant similarities included the complainants' ages, the plaintiff's authority over each of them, his alleged sexual interest, and the circumstances in which the conduct occurred. The court found a sound basis in the evidence for the conclusion that it was improbable the events coincidentally occurred in such similar circumstances, and that the evidence had significant probative value (at [86]-[87]).
Separate Trial Application
The court concluded that the two charges formed part of a series of offences of the same or similar character within the meaning of section 29 of the Criminal Procedure Act, and that the interests of justice did not require separate hearings. The magistrate's conclusion was open on the evidence and no error warranting interference was established (at [89]-[93]).
Orders Made
- Leave to appeal granted.
- The appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Supreme Court confirmed that the absence of a formally entered order does not preclude a finding that an interlocutory order was made for the purposes of section 53(3)(b) of the Crimes (Appeal and Review) Act 2001, provided the substance of the decision amounts to such an order (at [16]-[18]).
- A magistrate's failure to provide reasons explaining the section 101 balancing exercise constituted legal error, even where the magistrate correctly identified the applicable tests. However, that error did not lead to the appeal being allowed where the court itself assessed the balance and reached the same conclusion (at [55]-[56]).
- Under section 101 of the Evidence Act, the risk of unfair prejudice from tendency and coincidence evidence is materially reduced when the fact-finder is a magistrate rather than a jury. The court reasoned that a magistrate is unlikely to engage in the illogical or emotional reasoning that the section guards against in jury trials (at [79]).
- Sufficient similarity in the circumstances of alleged offences, including the complainants' ages, the defendant's authority over them, and the opportunistic nature of the alleged conduct, can ground both tendency and coincidence evidence even where the specific acts and locations differ (at [86]-[91]).
- Leave to appeal from a refusal of a separate trial application will not readily be granted. The court confirmed that the threshold requires establishing substantial doubt about the interlocutory ruling such that it is convenient to resolve the matter before trial proceeds, and that leave is particularly warranted where an erroneous evidentiary ruling would almost inevitably lead to an appeal and retrial upon conviction (at [21]-[23]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Supreme Court Act 1970 (NSW)
Cases
- Adamson v Ede [2009] NSWCA 379
- DSJ v R; NS v R [2012] NSWCCA 9
- Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
- Kocer v R [2006] NSWCCA 328
- O’Keefe v The Queen [2009] NSWCCA 121
- Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
- Phillips v R [2006] HCA 4; (2006) 225 CLR 303
- R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492
- R v Dao [2011] NSWCCA 63
- R v F [2002] NSWCCA 125
- R v Harker [2004] NSWCCA 427
- R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim A 308
- R v Lockyer (1996) 89 A Crim R 457
- R v Nassif [2004] NSWCCA 433
- R v PWD [2010] NSWCCA 209
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v SK [2011] NSWCCA 292
- R v Wright (1990) 90 Cr App R 312
- Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; (2009) 75 NSWLR 392
- Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247