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District Court 21 May 2018

R v AC

[2018] NSWDC 127

Public order & justice offences
CRIMINAL LAW DISPENSING WITH NOTICE REQUIREMENTS BACK TO BACK TRIALS ELECTRONIC FILING OF INDICTMENTS PROCEDURAL DIFFICULTIES.

Citation: R v AC [2018] NSWDC 127
Court: District Court of New South Wales
Date: 21 May 2018
Judge: Colefax SC DCJ

Background

The accused was arraigned in October 2017 on a 14-count indictment alleging sexual offences against five complainants over a period spanning 1986 to 2009. At arraignment, the court made pre-trial disclosure orders and a trial date was fixed for 26 March 2018. The combined effect of the Evidence Act 1995 (NSW) and applicable court rules required the Crown to have served any tendency notice 28 days before arraignment. No such notice had been served, and no order dispensing with that requirement had been made.

At a mention hearing on 22 February 2018, the list Judge directed the Crown to serve any tendency notice by the end of that week, being no later than 5pm on 23 February 2018. The Crown did not comply. Instead, it purported to serve a tendency notice in two tranches on 20 and 21 March 2018, just days before the trial date and one month after the court-ordered deadline. No application for an extension of time was made before or at the time of that service, and the Crown did not disclose its non-compliance at a subsequent mention on 22 March 2018.

The trial date was ultimately vacated due to the unavailability of a judge. Pre-trial hearings were then listed, and the accused filed a Notice of Motion seeking separate and sequential trials for the counts relating to each complainant. The Crown opposed the motion, relying on the late tendency notice to support cross-admissibility of the complainants' evidence.

  • Whether the Crown's constructive or implied oral application to extend time for service of the tendency notice (or to dispense with the notice requirements) should be granted
  • Whether, absent a valid tendency notice, the evidence of each complainant was cross-admissible in a joint trial
  • Whether separate and sequential trials should be ordered for the counts relating to each complainant

Decision

Colefax SC DCJ treated the Crown's submissions opposing the accused's motion as a constructive application to extend time or dispense with the tendency notice requirements, given that no formal Notice of Motion or explicit oral application had been made. The applicable test required the Crown to satisfy two cumulative criteria: a sufficient explanation for the delay, and that it was in the interests of justice to grant the extension (citing Clancy v Director of Public Prosecutions [2018] NSWCA 102).

The Crown failed entirely on the first criterion. No explanation whatsoever was offered for the original failure to serve the notice before arraignment, for the failure to comply with the court's direction of 22 February 2018, or for serving the notice without first seeking leave. His Honour also noted that the Crown failed to disclose its non-compliance to the court at the 22 March 2018 mention. Because both criteria were required to be satisfied, the failure on the first was determinative.

His Honour rejected the Crown's submission that refusing the extension amounted to "punishing" the prosecution. The refusal was instead framed as upholding the rule of law. His Honour expressed that the persistent failure by the Crown over many years to comply with tendency notice requirements was "an affront to the administration of justice," and that now a direct challenge had been made, the Court should not acquiesce in the practice.

Without a valid tendency notice, the Crown accepted that the evidence of the other complainants was not cross-admissible. Accordingly, the accused's application for separate and sequential trials for the counts relating to each complainant was granted.

Orders Made

  • The accused's Notice of Motion filed 22 March 2018 was granted in full (orders (a) to (e) inclusive)
  • Separate and sequential trials were ordered for the counts relating to each discrete complainant
  • The Crown was directed to inform the accused's solicitor in writing by 5pm on 28 May 2018 of the order in which the back-to-back trials would be run

Key Takeaways

  • The District Court confirmed that to obtain an extension of time or dispensation from tendency notice requirements under Part 31.5 of the UCPR and s 100 of the Evidence Act, both a sufficient explanation for the delay and a finding that it is in the interests of justice are required. These criteria are cumulative, not alternative.
  • A complete absence of any explanation for non-compliance with a court-ordered deadline is fatal to an application for an extension of time, regardless of the interests of justice.
  • Where no valid tendency notice has been served, the Crown cannot rely on co-complainant evidence as tendency evidence to support cross-admissibility in a joint trial.
  • Refusing to dispense with tendency notice requirements is not characterised as punishing the Crown; the District Court framed it as enforcing the rule of law and protecting the administration of justice.
  • The decision identifies several practical harms flowing from non-compliance with notice rules: wasted legal costs on both sides, delayed hearing dates, displaced court resources, and emotional and financial strain on complainants and accused persons alike.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 99, 100
- Uniform Civil Procedure Rules, Part 31.5
- District Court Rules, r 53.10C
- Criminal Procedure Act 1986 (NSW), ss 130A, 143(2)

Cases
- Clancy v Director of Public Prosecutions [2018] NSWCA 102
- R v Harker [2004] NSWCCA 427
- R v Hughes [2017] HCA 8
- R v RJ [2011] NSWDC 158