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11
Court of Criminal Appeal 18 December 2015

BC v R

[2015] NSWCCA 327

Also reported as (2015) 257 A Crim R 340
Sexual offences
CRIMINAL LAW APPEAL SEPARATE TRIALS ADMISSION OF TENDENCY EVIDENCE APPEAL TENDENCY EVIDENCE

Citation: BC v R [2015] NSWCCA 327
Court: NSW Court of Criminal Appeal
Date: 18 December 2015
Judge(s): Simpson JA, Adams J, Beech-Jones J (principal judgment)

Background

The applicant faced a 20-count indictment alleging sexual offences against four complainants spanning roughly 17 years. The complainants included two siblings, a younger child, and a person with a cognitive impairment. The alleged offending began when the applicant was as young as 11 years old and continued into his late twenties.

At arraignment, the applicant pleaded not guilty and sought five separate trials, one covering counts relating to each complainant (and a further split within the counts relating to one complainant). The Crown opposed severance on the basis that the evidence of each complainant's allegations was admissible as tendency evidence in relation to the other counts.

The trial judge conducted a pre-trial hearing, read the complainants' statements, and heard evidence from two complainants. Her Honour ruled the tendency evidence admissible and declined to order separate trials. The applicant then sought to appeal that ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The trial was aborted partway through, and all complainants had given evidence by that point.

  • Whether the trial judge applied the correct test for admitting tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW)
  • Whether the probative value of the tendency evidence substantially outweighed its prejudicial effect on the applicant, as required by s 101(2)
  • Whether the possibility that the complainants (including siblings) had concocted their accounts was correctly assessed in evaluating probative value
  • Whether the trial judge correctly found sufficient similarity across the allegations to support a tendency finding
  • Whether the doctrine of doli incapax (the presumption that a child under 14 lacks criminal capacity) was adequately considered in deciding whether to try counts 1 to 3 (alleged offending from age 11 to 13) jointly with the remaining counts

Decision

Beech-Jones J (with whom Simpson JA and Adams J agreed) dismissed the appeal, finding no material error in the primary judge's approach to any of the five grounds.

On the tendency evidence questions, the Court confirmed that the relevant test under s 101(2) requires the probative value of tendency evidence to substantially outweigh any prejudicial effect. The Court found that the trial judge had correctly identified and applied that test. The similarities across the complainants' accounts, including the applicant's targeting of young and vulnerable victims, the escalating and reciprocal nature of the sexual acts, and his use of phrases minimising and concealing the conduct, were sufficient to support a finding of significant tendency. Those similarities also bore on the cross-admissibility analysis.

On the concoction issue, the Court addressed the relevance of the fact that two complainants were siblings. It confirmed that a reasonable possibility of concoction is a relevant factor when assessing probative value under s 101(2), but found the primary judge had not erred in her treatment of this issue. The close relationship between the complainants was considered, but the Court found no appellable error in the conclusion reached.

On doli incapax, the trial judge had not finally determined whether the Crown could rebut the presumption at the pre-trial stage, instead reserving that question until the end of the Crown case. The Court found no error in that approach. The applicant's contention that being tried jointly might tactically compel him to give evidence, raised for the first time on appeal, was rejected, partly because any decision to give evidence would not be meaningfully affected by the additional element the Crown had to prove on those counts.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the s 101(2) test under the Evidence Act 1995 (NSW) requires the probative value of tendency evidence to substantially outweigh prejudicial effect, a higher threshold than the s 97 requirement of significant probative value alone.
  • Where tendency evidence involves complainants who are known to each other (including siblings), the possibility of concoction is a relevant consideration in assessing probative value under s 101(2), but does not automatically preclude admissibility.
  • A trial judge is not required to finally determine the doli incapax issue at the pre-trial severance stage; deferring that question to the end of the Crown case was held to be a permissible approach.
  • Sufficient similarity across alleged conduct, including the targeting of vulnerable young victims, escalating reciprocal sexual acts, and repeated instructions to keep acts secret, supported a finding of admissible tendency evidence across counts involving different complainants spanning many years.
  • Arguments not raised before the trial judge will generally not found appellable error on an interlocutory s 5F appeal; the Court declined to consider the tactical doli incapax argument on its merits because it had not been put to the primary judge.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 306B
- Evidence Act 1995 (NSW), ss 55, 97, 101, 135

Cases
- AE v R [2008] NSWCCA 52
- B v R [1992] HCA 68; 175 CLR 599
- BJS v R (No 1) [2011] NSWCCA 239
- BJS v R (No 2) [2013] NSWCCA 123
- BP v R; R v BP [2010] NSWCCA 303
- DAO v R [2011] NSWCCA 63; 278 ALR 765
- DJW v R [2015] NSWCCA 164
- DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
- DSJ v R; NS v R [2014] NSWCCA 77
- Elomar v R [2014] NSWCCA 303; 316 ALR 206
- FB v R; R v FB [2011] NSWCCA 217
- Festa v R [2001] HCA 72; 208 CLR 593
- Harris v Director of Public Prosecutions [1952] AC 694
- Hoch v The Queen [1988] HCA 50; 165 CLR 292
- House v R [1936] HCA 40; 55 CLR 499
- JG v R [2014] NSWCCA 138
- Jones v R [2014] NSWCCA 280
- Leonard v The Queen [2006] NSWCCA 267; 164 A Crim R 374
- McIntosh v R [2015] NSWCCA 184
- Pfennig v R (1995) 182 CLR 461