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Court of Criminal Appeal 27 June 2018

R v AC

[2018] NSWCCA 130

Sexual offences
EVIDENCE EXCLUSION OF TENDENCY EVIDENCE

Citation: R v AC [2018] NSWCCA 130
Court: Court of Criminal Appeal (NSW)
Date: 27 June 2018
Judge(s): Meagher JA, Bellew J, Fagan J

Background

The respondent faced fourteen historic sexual assault charges involving five female complainants, all children at the time of the alleged offences. The charges were brought on a single indictment. The prosecution had prepared a tendency notice (a formal document advising that each complainant's evidence was to be used in support of charges relating to the other complainants) but failed to serve it within the required timeframe, and for reasons that were never adequately explained.

A court direction on 22 February 2018 required the Crown to serve any tendency notice by the following day. That direction was also not complied with. The notice was eventually served on 20 and 21 March 2018, just days before the scheduled trial date of 26 March 2018. The respondent then sought to have the counts relating to each complainant severed and tried separately.

The primary judge (Colefax SC DCJ in the District Court) found that no prejudice would result from the late service, and that the evidence had significant probative value. Despite those findings, his Honour declined to dispense with the notice requirement, citing the absence of any explanation for the Crown's failure and the need to enforce compliance with court rules. The Director of Public Prosecutions appealed that decision.

  • Whether the primary judge erred by treating the Crown's failure to explain its non-compliance as a mandatory and determinative reason to refuse to dispense with the tendency notice requirement under section 100(1) of the Evidence Act 1995 (NSW)
  • Whether the general need to secure Crown compliance with court rules was a relevant consideration in the section 100(1) discretion
  • Whether the Court of Criminal Appeal should re-exercise the discretion and grant the Crown's application under section 100(1), having regard to the mandatory considerations in section 192(2) of the Evidence Act

Decision

The Court of Criminal Appeal held that the primary judge had erred in two significant respects. First, his Honour treated the absence of an explanation for the Crown's failure to serve the notice as a mandatory and determinative consideration, effectively treating it as a threshold requirement. That is not what section 100(1) requires. The discretion to dispense with the notice requirement is governed by section 192(2) of the Evidence Act, which sets out specific considerations that must be addressed.

Second, the primary judge's concern about deterring the Crown from future non-compliance with tendency notice rules was not a relevant consideration for the section 100(1) application before him. Exercising a discretion to address the Crown's conduct generally, rather than the circumstances of the particular case, was an error.

The Court then re-exercised the discretion itself. Taking account of the section 192(2) matters, the Court found that allowing the tendency evidence would substantially shorten the length of the hearing. The evidence held significant probative value, and its importance was heightened in the context of historic sexual assault charges involving multiple child complainants. Critically, its admission would not be unfair to the accused or to any witness.

The Court granted the Crown's application and directed that the tendency rule's notice requirement in section 97(1)(a) did not apply to the evidence the subject of the late-served tendency notice.

Orders Made

  • Appeal allowed
  • Order 1 made on 21 May 2018 set aside
  • Direction that section 97(1)(a) of the tendency rule does not apply to the tendency evidence the subject of the notice served on 20 and 21 March 2018, notwithstanding the Crown's failure to give notice within the required time
  • Respondent's notice of motion filed 22 March 2018 dismissed

Key Takeaways

  • Under section 100(1) of the Evidence Act, a court may dispense with the tendency notice requirement even where the party seeking relief offers no explanation for its non-compliance. Absence of explanation is not a mandatory or determinative threshold.
  • The mandatory considerations for any section 100(1) application are those prescribed in section 192(2) of the Evidence Act, which include the effect on the length of the hearing, fairness to witnesses, and the importance of the evidence.
  • A court's general concern about deterring a party from future non-compliance with notice rules does not constitute a relevant consideration when exercising the section 100(1) discretion in a specific case.
  • The Court of Criminal Appeal confirmed that tendency evidence in proceedings involving historic sexual assaults with multiple complainants carries particular importance, a factor expressly relevant to the section 192(2) assessment.
  • Where a primary judge fails to address the mandatory section 192(2) considerations, the appellate court will vacate the decision and re-exercise the discretion itself under section 5F(5) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 99, 100, 192, 198
- Criminal Appeal Act 1912 (NSW), s 5F(3A), s 5F(5)
- Director of Public Prosecutions Act 1986 (NSW), s 7(1)
- District Court Rules, Part 53 r 10C
- Uniform Civil Procedure Rules, r 31.5

Cases:
- Stanoevski v R (2002) 202 CLR 115
- Hughes v The Queen [2017] HCA 20
- R v Harker [2004] NSWCCA 427
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Clancy v Director of Public Prosecutions [2018] NSWCA 102
- El-Haddad v R (2014) 88 NSWLR 93
- Tomko v Palasty (No 2) (2008) 71 NSWLR 61
- Andelman v The Queen [2013] VSCA 25
- IMM v The Queen (2016) 257 CLR 300
- R v Reardon [2002] NSWCCA 203
- BM v R [2017] NSWCCA 253
- Martin v State of NSW [2002] NSWCA 337
- PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
- Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
- Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492