Citation: R v WQ [2016] NSWDC 385
Court: District Court of NSW
Date: 10 February 2016
Judge(s): Judge S Norrish QC
Background
The accused faced five counts of sexual offending against three child complainants: two counts of sexual intercourse with a child under 10 years (DM), two further counts of the same nature against DM's sister (MM), and one count of indecent assault against a third complainant (KB). The alleged offences occurred in the accused's home under varying circumstances.
The Crown served a tendency notice seeking to use evidence from each complainant to support the case in relation to the others, relying on an alleged pattern of behaviour. The accused initially applied for separate trials for each complainant, but withdrew that application during a voir dire after it became apparent that a joint trial was the more appropriate vehicle for ventilating all relevant issues, including contamination concerns.
The central question remaining for the trial judge was whether the Crown could rely on tendency reasoning under section 97 of the Evidence Act 1995 (NSW). The jury ultimately returned a guilty verdict on count 3 only, acquitting the accused on counts 1, 2, 4 and 5.
Legal Issues
- Whether the Crown's tendency evidence met the threshold of "significant probative value" under section 97 of the Evidence Act 1995 (NSW)
- Whether the particularised pattern of behaviour was established across all complainants
- Whether a real risk of contamination of recollection was relevant to the assessment of probative value
- Whether, even if significant probative value existed, section 101 of the Evidence Act precluded admission because the probative value did not substantially outweigh the prejudicial effect
Decision
Issue 1: Whether the pattern of behaviour was established in evidence
The court found that the pattern of behaviour particularised in the tendency notice was not made out across all counts (at [23]). Significant dissimilarities existed between the three complainants' circumstances: the nature of the alleged conduct varied, with anal penetration alleged only in counts 1 and 3; the involvement of sleepovers was material only to MM's counts; and the alleged "engineering" of situations to be alone with the complainants was not established for DM or KB (at [14]-[21]). The allegation that offending occurred when no responsible adult was present was found to be untrue in relation to MM and doubtful for the others (at [21]).
Issue 2: Real risk of contamination
The court identified a real risk of contamination of recollection based on the sequence and circumstances of the complainants' disclosures (at [26]-[28]). The first complaint had been made by MM to the elder sister of KB, and KB himself did not disclose any wrongdoing until weeks later. New information emerged during the trial that was inconsistent with earlier accounts given to police (at [27]-[29]). The court drew on the approach in Jones v The Queen and the binding authority of R v Shamouil, which treated contamination risk as relevant to the assessment of probative value.
Issue 3: Admissibility under section 97
Taking the dissimilarities and contamination risk together, the court concluded the evidence did not carry significant probative value sufficient to satisfy section 97 (at [10], [30]). The closest candidate for tendency reasoning was the pairing of counts 1 and 3, which shared some features, but even that connection did not survive the combined weight of the factual distinctions and contamination concerns (at [25]-[26]).
Issue 4: Section 101 as an alternative basis for exclusion
The court addressed section 101 in the alternative, accepting that even if counts 1 and 3 could be said to have significant probative value, admission would still have been precluded. A tendency direction of only limited application to two complainants and specific acts would have carried a real risk of jury misuse, and the court was not satisfied that probative value substantially outweighed that prejudicial effect (at [31]-[34]).
Orders Made
- Tendency application denied
Key Takeaways
- A real risk of contamination of recollection among complainants is a relevant factor when assessing the probative value of tendency evidence under section 97 of the Evidence Act 1995 (NSW), and can weigh against a finding of significant probative value (at [26]-[30]).
- Where a Crown tendency notice particularises a specific pattern of behaviour, the court must assess whether that pattern is actually established in the evidence across all relevant complainants; failure to prove the pattern undermines the tendency application (at [23]).
- Dissimilarities in the circumstances of alleged offending, including differences in the nature of the conduct, the presence of others, and the context in which incidents occurred, are matters to be weighed in the significant probative value assessment even where strict "striking similarity" is not required (at [14]-[21], [24]).
- Under section 101 of the Evidence Act 1995 (NSW), even tendency evidence with some probative value will be excluded if probative value does not substantially outweigh prejudicial effect, including the risk of misuse by a jury despite appropriate directions (at [31]-[34]).
- The District Court confirmed it was bound by R v Shamouil as a five-judge Court of Criminal Appeal decision; to the extent that later Court of Criminal Appeal decisions in McIntosh may have diverged in approach, Shamouil remained controlling authority at trial court level (at [38]-[39]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v Shamouil [2006] NSWCCA 112
- R v XY [2013] NSWCCA 121
- Jones v The Queen [2014] NSWCCA 280
- McIntosh v The Queen [2015] NSWCCA 104
- Hughes v The Queen [2015] NSWCCA 330