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District Court 24 July 2015

R v Christopher Best

[2015] NSWDC 180

Sexual offences
INTERLOCUTORY APPLICATIONS TENDENCY EVIDENCE JOINT TRIALS

Citation: R v Christopher Best [2015] NSWDC 180
Court: District Court of New South Wales
Date: 24 July 2015
Judge(s): Mahony SC DCJ

Background

The accused faced an indictment containing 12 counts of sexual offending against four sibling complainants, who were his step-children. The offending was alleged to have occurred when the family lived together in Muswellbrook. The four complainants ranged in age from approximately six to fourteen years at the time of the alleged events.

The accused applied to have the counts severed so that the allegations of each complainant would be dealt with in separate trials. The Crown opposed severance, seeking instead to run a joint trial on the basis that the evidence of each complainant was cross-admissible against the accused on all counts as tendency evidence under section 97 of the Evidence Act 1995 (NSW).

The court conducted a voir dire (a preliminary hearing to determine the admissibility of evidence) focused primarily on whether the complainants' accounts had been concocted or contaminated through contact with each other, since such contamination could affect whether the evidence met the statutory threshold for tendency evidence.

Legal Issues

  • Whether the evidence of each complainant had "significant probative value" within the meaning of section 97(1)(b) of the Evidence Act 1995, so as to qualify as admissible tendency evidence.
  • Whether the probative value of that tendency evidence substantially outweighed any prejudicial effect on the accused, as required by section 101(2) of the Evidence Act 1995.
  • Whether there was a reasonable possibility of concoction or contamination among the complainants that would undermine the admissibility of the tendency evidence.
  • Whether, if tendency evidence was admissible, the accused's application for separate trials should be dismissed and a joint trial ordered.

Decision

Issue 1: Significant Probative Value

The court accepted the Crown's submission that the evidence of KR, SR and BR had significant probative value (at [118]). Applying the test from R v Lockyer, "significant" means more than mere relevance but something less than substantial relevance. The court found the evidence capable of rationally affecting the probability assessment of whether the accused had engaged in the conduct alleged, and of demonstrating a tendency to have a sexual interest in children in his care and to touch and penetrate them sexually (at [120]).

The court noted that tendency evidence does not require striking similarities between complainants' accounts. Following R v PWD, the evidence need only be capable of rationally affecting the probability that the accused engaged in the conduct alleged (at [102]).

Issue 2: Concoction and Contamination

The court found no evidence of collusion or contamination, whether appearing on the face of the evidence or established by inference (at [114]). KR denied sharing details with the other children beyond the general allegation of rape. BR and SR either denied detailed discussions or had no memory of what was said at sibling meetings (at [114]). One occasion in a pool change room where the three girls were together did not establish that any discussion of detail took place.

The court acknowledged inconsistencies between the complainants' accounts but found these unsurprising, given the complainants were young when the events occurred and were interviewed some years later (at [115]). The court also noted that no allegation of concoction was put directly to any complainant in cross-examination during the voir dire, and that the defence case rested on contamination by inference. Those matters were left for the jury (at [119]).

Issue 3: Balancing Probative Value Against Prejudice

The court was satisfied that the test in section 101(2) was met: the probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused (at [120]). The court observed that any residual prejudice could be addressed through appropriate jury directions (at [121]).

Issue 4: BLR's Evidence

BLR's own statement made no allegation against the accused and therefore could not itself be adduced as tendency evidence (at [122]). However, BR's evidence of what she observed occurring to BLR did amount to tendency evidence and was found to be cross-admissible on the counts relating to BLR (at [122]).

Orders Made

  • The accused's application for separate trials was dismissed; the trial to proceed on all counts in the indictment.
  • The Crown is entitled to adduce the evidence of KR, SR and BR as tendency evidence pursuant to section 97 of the Evidence Act 1995.
  • That evidence is cross-admissible in respect of each count on the indictment.

Key Takeaways

  • The District Court confirmed that tendency evidence under section 97 of the Evidence Act 1995 does not require striking similarities between complainants' accounts; evidence capable of rationally affecting the probability of the alleged conduct being established is sufficient (at [102]).
  • Inconsistencies between complainants' accounts do not automatically defeat a tendency evidence application, particularly where the complainants were young and were interviewed years after the alleged events (at [115]).
  • Where contamination is alleged, the court assessed the evidence on the voir dire by reference to the relationship between complainants, their opportunity for discussion, and their motive to concoct; the mere existence of those factors, without positive evidence of contamination, did not establish a reasonable possibility of concoction or collusion (at [106], [114]).
  • Under the framework considered in Jones v R and DJW v R, questions of concoction and contamination may in exceptional cases be assessed by the court in determining significant probative value, but where the evidence does not clearly establish contamination, those issues remain for the jury (at [119]).
  • A complainant's failure to make allegations in a first police interview is not, of itself, determinative of whether tendency evidence based on later interviews will be admitted; the court declined to treat BR's allegation-free first interview as negating the probative value of her later accounts (at [116]-[117]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995 (NSW)

Cases
- BJS v R [2011] NSWCCA 239
- BP v R [2010] NSWCCA 303
- DJW v R [2015] NSWCCA 164
- DSJ v R [2012] NSWCCA 9
- FB v R [2011] NSWCCA 217
- JG v R [2014] NSWCCA 138
- Jones v R [2014] NSWCCA 280
- Qualtieri v R [2006] NSWCCA 95
- R v Colby [1999] NSWCCA 261
- R v Fletcher (2005) 156 ACrimR 308
- R v Lockyer (1986) 89 ACrim R 457
- R v PWD [2010] NSWCCA 209
- R v Shamouil (2006) 66 NSWLR 228
- R v XY [2013] NSWCCA 12