Citation: R v BP [2019] NSWDC 112
Court: District Court of New South Wales
Date: 4 April 2019
Judge: Wilson SC DCJ
Background
The accused faced two counts on the indictment, both involving alleged sexual offences against the same complainant between 2004 and 2006, when the complainant was aged 7 to 9 years. The counts concerned alleged indecent assault and sexual intercourse at Kariong, New South Wales, and the Crown's case was that both incidents occurred virtually simultaneously.
The Crown also sought to rely on a separate, uncharged incident said to have occurred approximately six years later, during a family holiday in Queensland in the 2012 to 2013 Christmas school holidays. On that occasion, the complainant was 15 years old. The alleged conduct involved the accused touching the complainant's vagina over her clothing while her mother was temporarily absent, stopping when the mother returned.
The Crown issued a tendency notice seeking to use the Queensland incident as tendency evidence. Defence counsel opposed that use on the basis that the six-year gap between the charged and uncharged acts substantially reduced, or entirely eliminated, the probative value of the later incident. Counsel accepted, however, that the evidence of the Queensland incident was admissible for another purpose, namely to provide context for why the complainant disclosed the earlier offending when she did.
Legal Issues
- Whether the uncharged Queensland incident had significant probative value for tendency purposes under s 97(1)(b) of the Evidence Act 1995 (NSW), notwithstanding a six-year temporal gap between the charged acts and the uncharged act
- Whether the uncharged act occurring after the charged acts diminished its value as tendency evidence
- Whether the probative value of the tendency evidence substantially outweighed any unfair prejudice to the accused under ss 135 and 137 of the Evidence Act 1995 (NSW)
- Whether any risk of contamination, concoction, or collusion affected admissibility of the tendency evidence
Decision
Wilson SC DCJ ruled that the Queensland incident was admissible as tendency evidence. The Crown sought to establish two tendencies: the accused's sexual interest in the complainant, and his tendency to act on that interest by touching her vagina when her mother was not present. The court found that the similarities between the charged and uncharged acts, particularly the common features of vaginal touching, the same victim, and the absence of the complainant's mother, were sufficiently striking to satisfy the significant probative value threshold in s 97(1)(b).
The court acknowledged that a temporal gap between charged and uncharged acts is a relevant consideration when assessing probative value, but found that the six-year gap in this case did not diminish that value to the point of inadmissibility. The court distinguished McPhillamy v The Queen [2018] HCA 52, observing that in McPhillamy the uncharged acts involved different circumstances and a different context, whereas here there was a single complainant and the conduct was sufficiently similar across both incidents.
On the question of prejudice, the court noted that the tendency evidence's probative value substantially outweighed any prejudicial effect. It also observed that the prejudicial impact was further reduced because the Queensland incident was in any event to be placed before the jury for a separate, legitimate purpose, namely as context for the timing of the complainant's disclosure. The court also found that neither s 135 nor s 137 of the Evidence Act would operate to exclude the evidence, though no formal submission had been made by the defence on those provisions.
Regarding the possibility of contamination or concoction, the court applied the High Court's reasoning in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, confirming that under the Evidence Act such considerations do not operate as a threshold admissibility rule. Provided the evidence is rationally capable of acceptance, contamination and concoction concerns are matters for the jury to weigh as part of its ordinary assessment of evidence. The court noted there was no evidence of concoction or similar conduct in the present case beyond the accused's denial.
Orders Made
No orders were made in this decision.
Key Takeaways
- A six-year temporal gap between charged and uncharged acts does not automatically preclude tendency evidence from satisfying the significant probative value test under s 97(1)(b) of the Evidence Act 1995, particularly where the acts involve the same victim and sufficiently similar conduct.
- Where tendency evidence is independently admissible for another purpose (such as context for a delayed complaint), the prejudicial effect on the accused is correspondingly reduced when weighing probative value against prejudice.
- Under the Evidence Act 1995, the possibility of contamination, concoction, or collusion is not a threshold admissibility question; it is a matter for the jury's ordinary assessment of credibility and reliability, consistent with The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40.
- McPhillamy v The Queen [2018] HCA 52 was distinguished on its facts: the District Court treated it as a case involving materially different circumstances, and did not read it as authority for a general proposition that temporal distance defeats tendency admissibility.
- The fact that an uncharged act occurred after the charged acts does not, of itself, render tendency evidence inadmissible, provided the relevant similarities are sufficient to establish significant probative value.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 135, 137
Cases
- BC v R [2015] NSWCCA 327
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen [2016] HCA 14
- McPhillamy v The Queen [2018] HCA 52
- R v AC [2018] NSWCCA 130
- R v SK [2011] NSWCCA 292
- RH v R [2014] HCATrans 282
- RH v R [2014] NSWCCA 71
- The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40