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District Court 12 February 2015

R v Steele

[2015] NSWDC 100

Sexual offences
CRIMINAL LAW JUDGMENT APPLICATION TO ADMIT TENDENCY EVIDENCE JOINT CONCOCTION UNCONSCIOUS CONTAMINATION

Citation: R v Steele [2015] NSWDC 100
Court: District Court of New South Wales
Date: 12 February 2015
Judge(s): Berman SC DCJ

Background

The accused faced charges of child sexual assault. Three female witnesses, including the complainant, described broadly similar conduct by the accused: repeated touching of their genitals while they were staying overnight at his home, each at an early teenage age, each wearing night attire, over a period of less than two years.

The Crown applied to lead tendency evidence from the two witnesses who were not the complainant. Under the Evidence Act 1995 (NSW), tendency evidence is evidence of a person's tendency to act in a particular way, which is used to show they acted consistently with that tendency on the occasion in question.

The accused objected to the admission of that evidence. Defence counsel submitted that the proposed evidence either lacked sufficient probative value or was the product of joint concoction or, in the alternative, unconscious contamination among the witnesses.

  • Whether the proposed tendency evidence had substantial probative value under the Evidence Act
  • Whether the possibility of joint concoction or unconscious contamination affected the admissibility of the evidence, and the proper approach to that question
  • Whether the risk of unfair prejudice to the accused outweighed the probative value of the evidence under s 101(2) of the Evidence Act

Decision

On the history of tendency evidence and the displacement of Hoch:
His Honour opened with a careful survey of how courts had handled tendency evidence since the Evidence Act commenced in 1995. He observed that for many years, courts continued improperly applying the principle from Hoch v R (1988) 165 CLR 292, which required exclusion of similar-fact evidence where there was a reasonable possibility of concoction. His Honour noted that the Evidence Act had effectively abolished that common law rule, and that decisions such as R v Colby [1999] NSWCCA 261 and BP v R [2010] NSWCCA 303, which continued to apply a Hoch-style qualification, are no longer good law.

On probative value:
His Honour found the proposed tendency evidence had substantial probative value. The accounts of all three witnesses shared striking similarities: the same approximate age group, the same domestic setting (staying overnight), the same time of night, the same form of conduct (digital touching of genitals), and a shared quality that the accused treated the absence of consent as irrelevant. The judge also noted the significance of what the witnesses did not allege, observing that none described any penile conduct, which he regarded as unusual in his experience. Differences between the accounts, including that the complainant alleged cunnilingus and penetration while the others did not, did not displace the overall finding of a demonstrated sexual tendency toward early teenage girls in the accused's home.

On concoction and contamination:
His Honour confirmed that once witnesses implicitly deny concoction by asserting the truth of their accounts, a trial judge assessing admissibility must accept those denials. That question of credibility is properly for the jury, not the judge at an admissibility hearing. Defence counsel properly conceded the point on deliberate concoction, instead pressing unconscious contamination. His Honour assessed the risk of unconscious contamination against the full circumstances and, applying the Evidence Act framework, concluded it did not reduce the probative value of the evidence to below the statutory threshold.

On unfair prejudice:
His Honour found no unfair prejudice to the accused that could outweigh the probative value. The possibility of the tendency witnesses corroborating each other, which in turn might lend credibility to the complainant, was described as a logical and entirely proper chain of reasoning, not a misuse of the evidence. Any prejudice from unparticularised allegations could be managed by restricting the tendency witnesses to specific, particularised events. His Honour admitted the tendency evidence.

Orders Made

• The tendency evidence will be admitted.

Key Takeaways

  • The District Court confirmed that the common law Hoch rule, requiring exclusion of tendency evidence where there is a reasonable possibility of concoction, does not survive the Evidence Act. Decisions such as R v Colby and BP v R are no longer good law on this point.

  • Where a witness implicitly denies concoction by asserting the truth of their account, the trial judge at an admissibility hearing must accept that denial. Whether concoction actually occurred is a question of fact for the jury.

  • Under the Evidence Act framework, a risk of unconscious contamination among witnesses does not automatically defeat admission of tendency evidence; it is one factor weighed in assessing probative value.

  • Striking similarities across multiple accounts, including shared setting, shared victim profile, and a consistent modus operandi, can support a finding of substantial probative value sufficient for admission under s 97.

  • Section 101(2) requires a balancing of probative value against unfair prejudice; the mere fact that tendency evidence is powerful and may reduce the prospects of acquittal does not, of itself, constitute unfair prejudice.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 98, 101

Cases:
- Hoch v R [1988] HCA 50; (1988) 165 CLR 292
- R v Colby [1999] NSWCCA 261
- R v Le [2000] NSWCCA 49
- R v Andrews [2003] NSWCCA 7
- R v Ellis [2003] NSWCCA 319
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- BP v R; R v BP [2010] NSWCCA 303
- BJS v R [2011] NSWCCA 239
- FB v Regina; Regina v FB [2011] NSWCCA 217
- BJS v R [2013] NSWCCA 123
- R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
- R v JG [2014] NSWCCA 138