Citation: [2016] NSWDC 392
Court: District Court of New South Wales
Date: 8 September 2016
Judge: Norrish DCJ
Background
The accused faced six counts of indecent assault upon children under 16 years of age. Two complainants were involved: AK, who alleged two separate incidents occurring in 2012 and 2014, and GC, who alleged multiple incidents on a single day in February 2014. Both complainants attended a horse training or riding facility in the Cobark area of regional New South Wales, which was controlled or administered by the accused.
The alleged conduct involved physical touching in the context of horse riding instruction. The two complainants did not know each other, and no issue of concoction between them was raised in the proceedings before the court.
The Crown filed a tendency notice under the Evidence Act 1995 (NSW) seeking to use each complainant's evidence to prove the accused had a relevant tendency, with that tendency evidence then going to proof of guilt on the counts relating to the other complainant. The defence challenged the admissibility of that tendency evidence and also sought severance of the counts relating to the different complainants.
Legal Issues
- Whether the evidence of each complainant was admissible as tendency evidence to prove guilt on the counts relating to the other complainant, under the Evidence Act 1995 (NSW)
- Whether the probative value of the proposed tendency evidence significantly outweighed its prejudicial effect
- Whether the counts relating to the two complainants should be severed
Decision
Norrish DCJ applied the framework established by the Court of Criminal Appeal in Hughes v R [2015] NSWCCA 330, as well as the High Court's confirmation in IMM v R [2016] HCA 14 that a trial judge's role in evaluating probative value does not extend to assessing the credibility of witnesses. His Honour also drew on the steps for assessing tendency evidence set out in R v Fletcher [2005] NSWCCA 338 and the analysis of probative value and unfair prejudice from R v Lockyer (1996) 89 A Crim R 457.
His Honour concluded that the proposed tendency evidence did not have significant probative value when considered as a whole. Although he acknowledged that portions of each complainant's evidence might individually carry sufficient weight, the allegations varied in nature and context, and not all conduct alleged was of equal or comparable character.
A further and distinct concern was the practical difficulty of directing the jury to use only selected parts of a complainant's evidence for tendency purposes, while treating other parts of that same evidence as relevant only to the counts directly involving that complainant. His Honour concluded this situation would inevitably create jury confusion, regardless of careful directions from the bench or the parties.
For those reasons, the court held that even where isolated portions of one complainant's evidence might otherwise meet the significance threshold, the probative value of the tendency evidence as a whole could not substantially outweigh its prejudicial effect in a joint trial where both complainants were to give evidence before the same jury.
Orders Made
• Evidence of one complainant is not admissible for the purposes of proving tendencies or a relevant tendency in respect to allegations made by another complainant.
Key Takeaways
- The District Court held that tendency evidence will not be admitted where the court is not satisfied that its probative value significantly outweighs its prejudicial effect, as required under the Evidence Act 1995 (NSW).
- A conviction for tendency-based reasoning requires the tendency evidence to have significant probative value, not merely some relevance; partial alignment between complainants' accounts may be insufficient.
- Where only portions of a complainant's evidence could properly be used for tendency purposes, directing a jury to segregate that material from evidence relevant only to direct proof of the relevant counts may create a level of confusion that itself weighs against admission.
- The High Court's decision in IMM v R [2016] HCA 14 confirmed the NSW approach in R v Shamouil: a trial judge evaluating probative value does not assess the credibility of the evidence, a principle applied directly in this ruling.
- No issue of concoction between complainants was live in this application, meaning the court's analysis proceeded purely on the probative value and prejudice balancing exercise under the tendency provisions.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- IMM v R [2016] HCA 14
- Hughes v R [2015] NSWCCA 330
- R v Shamouil [2006] NSWCCA 112
- R v Fletcher [2005] NSWCCA 338
- R v Lockyer (1996) 89 A Crim R 457
- XY v R [2013] NSWCCA 121
- DSJ v R; NS v R [2012] NSWCCA 9
- DAO v R [2011] NSWCCA 63
- Sokolowskyj v R [2014] NSWCCA 55
- R v Ford [2009] NSWCCA 306
- Gardiner v The Queen [2006] NSWCCA 190
- Pfennig v R [1995] HCA 7