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Court of Criminal Appeal 21 April 2015

DJW v R

[2015] NSWCCA 164

Sexual offences
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE FINDING OF PRIMARY JUDGE OPEN NO ERROR CRIMINAL LAW EVIDENCE

Citation: DJW v R [2015] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 21 April 2015
Judges: Simpson J, R A Hulme J, Bellew J

Background

The applicant faced an indictment containing 23 counts of sexual assault alleged to have been committed against six children, five of whom were his biological or step-children. The alleged offending spanned several years and two residential addresses, occurring predominantly when the applicant was alone with the children.

The Crown proposed a joint trial in which each complainant's evidence would be used as tendency evidence in relation to the counts involving the other complainants. The applicant sought separate trials for each complainant. Judge Baly SC in the District Court declined to order full separation, instead directing that four of the complainants (MJ, TJ, KN, and DW) could be tried together, while two complainants (RW and CW) were to be tried separately from the others.

The applicant sought leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), arguing the primary judge erred in refusing to order entirely separate trials. The Court of Criminal Appeal granted leave to appeal but dismissed it.

  • Whether the primary judge erred in finding there was no real risk of concoction or contamination in respect of the four complainants whose evidence was admitted as tendency evidence against each other
  • Whether the evidence of the complainants was too dissimilar to carry significant probative value under s 97 of the Evidence Act 1995 (NSW)
  • Whether the primary judge erred in assessing the prejudicial effect of the tendency evidence under ss 101 and 137 of the Evidence Act

Decision

Concoction and contamination. R A Hulme J (with whom Simpson and Bellew JJ agreed) confirmed that a real, rather than merely speculative, risk of concoction or contamination can deprive tendency evidence of its probative value. The primary judge had carefully examined the relationships between the four complainants, the timing of their disclosures, and the circumstances in which complaints were made. Her Honour's conclusion that no real risk existed in respect of MJ, TJ, KN, and DW was open on the evidence, and no error was established.

Probative value and similarity. The Court confirmed that close factual similarity between allegations is not a prerequisite to a finding of significant probative value under s 97. The primary judge was entitled to focus on the overall pattern of behaviour: the applicant's use of parental or step-parental authority over young children in his care to facilitate sexual abuse in the family home. Differences in the complainants' ages and the specific acts alleged did not undermine the tendency relied upon by the Crown.

Competing inferences. R A Hulme J noted that competing inferences, including the possibility of an innocent explanation, may be relevant to the assessment of probative value. This principle was applied without disturbing the primary judge's reasoning.

Prejudicial effect. The applicant identified no specific form of prejudice beyond the inherent prejudicial effect common to all tendency evidence. The Court found that the conduct alleged was not "deviant" in a manner likely to provoke irrational jury reasoning beyond what appropriate directions could address, including a direction that tendency evidence must be proved to the criminal standard. The primary judge's approach to weighing probative value against prejudicial effect disclosed no error.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • The practical effect of the original District Court orders was that three separate trials would proceed: one for MJ, TJ, KN, and DW together; a separate trial for RW; and a separate trial for CW.

Key Takeaways

  • A risk of concoction or contamination must be real and not merely speculative before it will deprive tendency evidence of significant probative value; the factors of relationship, opportunity, and motive remain relevant to that assessment.
  • Under s 97 of the Evidence Act, close similarity between individual allegations is not required; a shared underlying pattern of behaviour, such as the exploitation of a position of parental authority over young children in a domestic setting, can be sufficient.
  • Competing inferences going to probative value are a legitimate consideration in the tendency evidence admissibility analysis, and a finding of significant probative value does not require the exclusion of all alternative explanations.
  • In dismissing the appeal, the Court confirmed that the inherent prejudicial effect of tendency evidence, standing alone without identified specific prejudice, does not require severance where appropriate jury directions can adequately manage the risk of misuse.
  • No error arose from the primary judge's failure to identify "deviant behaviour" as a discrete source of prejudice; the absence of such behaviour supported, rather than undermined, the conclusion that directions would suffice.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Evidence Act 1995 (NSW), ss 97, 98, 101, 137

Cases
- BJS v R [2011] NSWCCA 239
- BP v R; R v BP [2010] NSWCCA 303
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 158
- JG v R [2014] NSWCCA 138
- Jones v R [2014] NSWCCA 280
- PWD v R [2010] NSWCCA 209; 205 A Crim R 75
- R v Burton [2013] NSWCCA 335; 237 A Crim R 238
- R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v RN [2005] NSWCCA 413
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v SK; SK v R [2011] NSWCCA 292
- R v Smith [2008] NSWCCA 247; 190 A Crim R 8
- R v XY [2013] NSWCCA 121; 84 NSWLR 363
- Saoud v R [2014] NSWCCA 136; 87 NSWLR 481
- Sokolowskyj v R [2014] NSWCCA 55