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District Court 25 July 2018

R v KK

[2018] NSWDC 506

Sexual offences
INTERLOCUTORY ORDERS

Citation: R v KK [2018] NSWDC 506
Court: District Court of New South Wales
Date: 25 July 2018
Judge(s): S Norrish QC DCJ

Background

The accused faced an indictment containing seven counts of sexual assault involving multiple complainants. Counts 1 to 3 related to allegations by one complainant (HC), while Counts 4 to 7 related to allegations by the accused's cousins, including CC. A further person, referred to as MY, was identified as a potential "other complainant" whose evidence was said to be relevant to tendency reasoning.

The Crown served a Tendency Notice under the Evidence Act 1995 seeking to lead evidence from other complainants and witnesses to establish various tendencies relevant to proving the charged offences. The notice identified a range of alleged tendencies, from a general sexual interest in sleeping or intoxicated females through to specific acts such as filming without consent.

The court was asked to rule on the admissibility of the tendency evidence and on whether the counts in the indictment should be tried together or separately.

Legal Issues

  • Whether each of the tendencies particularised in the Crown's Tendency Notice had "significant probative value" as required by the Evidence Act 1995
  • Whether the evidence of HC was admissible as tendency evidence in the trial of the cousin complainants, and vice versa
  • Whether the counts on the indictment should be severed and tried in separate proceedings
  • Whether the trial should proceed before a judge alone pursuant to s 132 of the Criminal Procedure Act 1986

Decision

Issue 1: Claimed tendency to have a sexual interest in sleeping females or females affected by alcohol or drugs

The court found that this formulation in fact alleged two distinct tendencies, not one coherent tendency. HC's account did not support the claimed tendency because she was not asleep, retained the capacity to express dissent and offer resistance, and there was no evidence the accused knew or believed she was intoxicated (at [11]). The circumstances of HC and CC were materially different and did not establish a common sexual interest, even at a prima facie level (at [11]). The court found the pleaded tendency conflated two different situations, was not a correct representation of the connection between the complainants, and lacked significant probative value (at [12]).

Issue 2: Remaining tendencies particularised in the notice

The court rejected the significant probative value of a series of other pleaded tendencies. A tendency to "take advantage of females during social interaction" was too broad and general (at [15]). A tendency to target females aged 17 or under did not reflect the full body of available evidence and fell well short of establishing a modus operandi (at [16]). A tendency to kiss or attempt to kiss females without consent fell far short of proving a tendency relevant to sexual assault (at [17]). A tendency to take advantage of females under the influence of alcohol was not a common element across the allegations and lacked significant probative value (at [18]). Tendencies involving penetration were not probative because the act itself was not in issue, only consent (at [19]). Tendencies involving spooning or pressing the body against females did not establish activity without consent or the relevant physical acts in dispute (at [20]).

Issue 3: Tendency to film intimate areas without consent

The court accepted that the tendency to use a mobile phone to record the intimate areas of females without their permission while they were asleep or affected by alcohol had significant probative value, and that this evidence should not be excluded under s 101(2) of the Evidence Act 1995. The court noted that any prejudice could be addressed by appropriate directions to the jury (at [21]).

Issue 4: Separate trials

Because the evidence of HC was not admissible as tendency evidence in the trial of the cousin complainants, and vice versa, the court concluded there was no proper basis for joinder. The only witness arguably common to both groups of allegations was MY, whose evidence related to different tendency issues in the respective trials. The court found that joinder could not be justified by legal directions alone and that trying the counts together would prejudice the accused. Accordingly, the court ordered that Counts 1 to 3 be separated from Counts 4 to 7. The court declined to order a trial by judge alone, finding that proper directions would be sufficient to address any risk of prejudice.

Orders Made

  • Counts 1 to 3 are separated from Counts 4 to 7; the order of prosecutions is a matter for the Director of Public Prosecutions and the Crown Prosecutor
  • No order for trial by judge alone under s 132 of the Criminal Procedure Act 1986
  • The evidence of a South African incident referred to in the statement of SS was found inadmissible and not of significant probative value in relation to the charges

Key Takeaways

  • A tendency notice that conflates two factually distinct scenarios (sexual activity with sleeping persons and sexual activity with intoxicated persons) will not satisfy the "significant probative value" threshold under the Evidence Act 1995 if the underlying evidence does not support both limbs of the claimed tendency (at [10]-[12]).

  • Where tendency evidence establishes only that sexual intercourse occurred, rather than that it occurred without consent, it does not advance the Crown's case on the fact in issue and will lack significant probative value (at [19]).

  • The District Court confirmed that a tendency to use a mobile phone to record the intimate areas of persons without consent while they are asleep or intoxicated can meet the significant probative value threshold, with prejudice managed through jury directions rather than exclusion (at [21]).

  • Joinder of counts involving different complainants requires either admissible tendency reasoning operating between those complainants' evidence or a substantial body of overlapping evidence relevant to guilt on each count; absent these, joinder will prejudice the accused and separate trials will be ordered.

  • Under s 21 of the Criminal Procedure Act 1986, the court will not rely on directions alone to cure the prejudice of improper joinder where the foundational conditions for joint trial are not met.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995
- Criminal Procedure Act 1986

Cases
- IMM v The Queen [2016] HCA 14
- Hughes v The Queen [2017] HCA 20
- Ceissman v R [2015] NSWCCA 74
- Pfenning v The Queen [1995] HCA 7; 182 CLR 461
- JG v R [2014] NSWCCA 138
- DSJ v R [2012] NSWCCA 9
- Demirok [1976] V.R. 244
- Webb & Hay v The Queen (1993-1994) 181 CLR 41
- R v Dent [2016] NSWSC 99
- R v Watkins [2005] NSWCCA 164
- Saoud v R (2014) 87 NSWLR 481
- BP v R [2010] NSWCCA 303
- R v Carroll (2002) 213 CLR 635
- R v RN [2005] NSWCCA 413
- Bauer v The Queen (No.2) [2017] VSCA 176
- RHB v The Queen [2011] VSCA 295
- Jones v R [2014] NSWCCA 280
- Mol v R [2017] NSWCCA 76
- R v Shamouil [2006] NSWCCA 112