Citation: Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
Court: Court of Criminal Appeal, New South Wales
Date: 14 December 2018
Judge(s): Basten JA at [1]; Johnson J at [54]; R A Hulme J at [59]
Background
The respondent was charged on indictment with three counts of sexual intercourse with a child under 10 years of age and one count of an act of indecency with a child under 10. The complainant was his daughter, who was aged between three and five years old at the time of the alleged offending.
Before trial commenced, the prosecution served a tendency notice seeking to lead evidence beyond the charged offences. That evidence was intended to establish that the respondent had a sexual interest in pre-pubescent, pre-school-aged children and a tendency to act on that interest, including by sexually or indecently assaulting very young children and attempting to procure children for sexual activity.
The trial judge rejected the application to admit that tendency evidence under section 97 of the Evidence Act 1995 (NSW). The Director of Public Prosecutions appealed that ruling as an interlocutory criminal appeal under section 5F(3A) of the Criminal Appeal Act 1912 (NSW), which permits such an appeal where the ruling eliminates or substantially weakens the prosecution's case.
Legal Issues
- What standard of appellate review applies to an interlocutory ruling rejecting tendency evidence in criminal proceedings: the correctness standard from Warren v Coombes or the deferential standard from House v The King?
- Whether the trial judge erred in excluding the proposed tendency evidence under sections 97 and 101 of the Evidence Act 1995 (NSW).
- Whether the probative value of the tendency evidence was significant, and whether it was substantially outweighed by the danger of unfair prejudice.
- What role, if any, dissenting reasons and High Court hearing transcripts may play in determining the applicable law at trial.
Decision
Standard of appellate review
The Court examined two competing standards of appellate review. The Warren v Coombes "correctness" standard requires the appellate court to decide the matter for itself, subject to the advantages of the primary judge. The House v The King "deferential" standard requires demonstrated error before the appellate court will intervene. Earlier authority, particularly DAO v The Queen (2011), had applied House v The King restraint to interlocutory rulings on tendency evidence. However, the Court considered that recent High Court guidance, particularly in R v Bauer (a pseudonym) [2018] HCA 40, altered the analytical landscape by clarifying the statutory test with greater precision, reducing the area of legitimate discretion available to trial judges and thus supporting closer review. Ultimately, Basten JA indicated the standard adopted did not determine the outcome because the trial judge's ruling was found to be wrong under either test.
The tendency evidence ruling
The Court found the trial judge erred in rejecting the tendency evidence. A central error was the trial judge's approach to probative value: the evidence, which included online communications indicating a sexual interest in very young children and conduct consistent with acting on that interest, possessed significant probative value within the meaning of section 97. The tendency it was said to establish, namely a sexual interest in pre-school-aged children and a disposition to act on it, was directly relevant to the charged offences involving a child of exactly that age group.
Prejudice and the balancing exercise
The Court acknowledged that tendency evidence of this kind carries a risk of moral revulsion, but noted that prejudice of that kind, while real, is qualitatively different from the unfair prejudice that section 101 is designed to guard against. Appropriate jury directions can substantially mitigate the risk of impermissible reasoning. The trial judge's conclusion that the prejudicial effect substantially outweighed the probative value was not sustained; the Court held the probative value was high and the prejudicial effect, properly managed by directions, did not tip the balance against admission.
Role of dissenting reasons and High Court transcripts
The Court also addressed the trial judge's approach of consulting the transcript of a High Court hearing to anticipate how the High Court might decide a pending appeal, and then applying the reasoning of a dissenting judge from the court below. The Court of Criminal Appeal firmly rejected this methodology. The applicable law is found in the reasons of the court that decided the case, not in hearing transcripts or the reasons of a dissenting judge, unless those reasons have been expressly adopted by the deciding court.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that the trial judge's role in assessing tendency evidence under sections 97 and 101 of the Evidence Act 1995 (NSW) is substantially governed by the statutory text, and the High Court's clarification in R v Bauer means the range of legitimate discretion is narrower than previously understood, supporting closer appellate scrutiny of such rulings.
- Where tendency evidence directly establishes a disposition matching the precise characteristics of the alleged offending (such as a sexual interest in children of the specific age range), courts must give that probative alignment significant weight in the admissibility balancing exercise.
- Prejudice arising from moral revulsion at the nature of the conduct described in tendency evidence is not, of itself, the kind of unfair prejudice that section 101 is intended to address; jury directions are a recognised mechanism for managing such risks.
- A trial court must apply the law as stated in the reasons of the court that decided a case. Consulting the transcript of a High Court hearing to predict future reasoning, or applying dissenting reasons that have not been adopted by the majority, does not constitute a proper application of precedent.
- Under section 5F(3A) of the Criminal Appeal Act 1912 (NSW), the prosecution's right of interlocutory appeal is engaged where a ruling on admissibility eliminates or substantially weakens the prosecution's case, as the rejection of this tendency evidence was found to do.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 101
- Criminal Appeal Act 1912 (NSW), ss 5F, 17
- Civil Procedure Act 2005 (NSW), s 56; Pt 6
Cases
- R v Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40
- McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
- Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- KJM v The Queen (No 2) (2011) 33 VR 11; [2011] VSCA 268
- Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30
- R v AB (No 2) [2018] NSWCCA 148
- Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207
- In Re the Will of Gilbert (1946) 46 SR (NSW) 318
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451