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District Court 26 June 2019

R v RJW

[2019] NSWDC 303

Sexual offences

Citation: R v RJW [2019] NSWDC 303
Court: District Court of New South Wales
Date: 26 June 2019
Judge(s): Grant DCJ

Background

The accused faced a 16-count indictment alleging sexual offences against two teenage complainants, KL and LB. Count 1 alleged sexual intercourse without consent with KL. The remaining 15 counts relating to LB included sexual intercourse, attempted sexual intercourse, indecent assault, and acts of indecency.

Both complainants were under 16 years of age and had moved into the accused's family home through a connection with his wife. The accused occupied a position of authority and quasi-parental responsibility over both girls, who had come from difficult or dysfunctional home environments.

The Crown filed a tendency notice seeking to use the evidence relating to each complainant as cross-admissible tendency evidence against the charges involving the other. The central question was whether that evidence met the statutory threshold for admissibility.

  • Whether the Crown's tendency evidence had "significant probative value" within the meaning of s 97(1)(b) of the Evidence Act
  • Whether the probative value of the tendency evidence "substantially outweighs" its prejudicial effect on the accused, as required by s 101(2) of the Evidence Act
  • Whether the features common to the two complainants' accounts were sufficiently distinctive to support the asserted tendency

Decision

Grant DCJ set out the two-step evaluative framework established by the High Court majority in Hughes v The Queen: first, whether the evidence supports the asserted tendency; and second, whether that tendency makes more likely the facts making up the charged offence. His Honour noted that reasonable minds may differ on whether probative value reaches the "significant" threshold, which connotes something more than mere relevance but less than a substantial degree of relevance.

The Crown identified multiple features of commonality across the two complainants' accounts. These included the complainants' ages (13 and 16 years), the accused's mature age, his position of authority and quasi-parental responsibility over both girls, their shared vulnerability, the domestic setting, and the element of risk of detection present during the offending. The Crown also submitted that, considered in isolation, each complainant's account might appear inherently unlikely, making the cross-admissibility of the evidence particularly significant.

Grant DCJ was satisfied that the proposed evidence revealed a pattern of conduct demonstrating that the accused had a sexual interest in girls aged 16 or younger who were under his authority, and a willingness to act on that interest in circumstances involving a real risk of detection. His Honour drew on the High Court's reasoning in R v Bauer, where the court found that similar common features across multiple complainants could render each account significantly probative of the others. On that basis, the tendency evidence met the threshold under s 97.

On the s 101 question, Grant DCJ acknowledged that all tendency evidence is prejudicial to an accused, but distinguished between ordinary prejudice and the type of improper use that warrants exclusion. His Honour held that the probative value of the evidence substantially outweighed any prejudicial effect, and that appropriate jury directions would guard against misuse. The tendency evidence was ruled admissible.

Orders Made

• The evidence sought to be led by the Crown pursuant to the tendency notice is admissible.

Key Takeaways

  • The District Court applied the Hughes v The Queen two-stage framework: tendency evidence must both support the asserted tendency and make the charged offence more likely to a significant extent.
  • Under s 97(1)(b) of the Evidence Act, "significant probative value" sits above mere relevance but below substantial relevance, and the assessment is an evaluative judgment on which reasonable minds may differ.
  • A mature adult's inclination to engage in sexual conduct with girls aged 16 or under in a position of trust, combined with a willingness to act on that inclination, was characterised as unusual as a matter of ordinary human experience, contributing to the significant probative value of the evidence.
  • Shared features across multiple complainants, including the victims' ages, the accused's position of authority, the domestic setting, and the risk of detection, were sufficient to establish the pattern of conduct necessary for cross-admissibility.
  • Under s 101(2), prejudicial effect means the risk that a jury will use evidence improperly, not merely that the evidence is damaging to the accused; appropriate jury directions were held to be capable of addressing that risk.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 98, 101, 135, 137

Cases:
- Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187
- R v Bauer [2018] HCA 40
- R v Ford [2009] NSWCCA 306