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District Court 1 July 2019

R v DLW

[2019] NSWDC 305

Sexual offences
ADMISSIBILITY OF TENDENCY EVIDENCE TEMPORAL GAP SIGNIFICANT PROBATIVE VALUE

Citation: R v DLW [2019] NSWDC 305
Court: District Court of NSW
Date: 1 July 2019
Judge(s): Bright DCJ

Background

The accused faced a joint indictment containing six counts of serious sexual offending against two complainants. Counts 1, 2 and 3 related to alleged penile/anal intercourse against a complainant (LM) committed between 2002 and 2003, when the accused was 15 to 16 years old. Counts 4, 5 and 6 related to alleged penile/anal intercourse and other sexual acts against a second complainant (BW) committed between 2009 and 2010, when the accused was 21 to 22 years old.

The Crown served a tendency notice indicating its intention to rely on each complainant's evidence as tendency evidence in relation to the other complainant's counts, and also as tendency evidence across counts within each individual complainant's case. The asserted tendency was the accused's sexual interest in young males under 12 years of age, his access to those males through family connections, and his use of violence and death threats to facilitate and conceal sexual activity.

At a pre-trial hearing, the defence sought separate trials on the basis that the cross-complainant tendency evidence was inadmissible, arguing primarily that the temporal gap between the two sets of alleged offending deprived that evidence of the significant probative value required under the Evidence Act 1995 (NSW).

Legal Issues

  • Whether evidence of LM was admissible as tendency evidence in relation to the counts concerning BW, and vice versa, under ss 97 and 101 of the Evidence Act 1995 (NSW)
  • Whether the temporal gap of approximately six to eight years between the two alleged periods of offending undermined significant probative value
  • Whether the accused's transition from adolescence to adulthood between the two alleged periods of offending was relevant to probative value
  • Whether the similarities in the alleged offending conduct overcame any reduction in probative value caused by the temporal gap
  • Whether each complainant's evidence was admissible as tendency evidence in relation to that same complainant's other counts

Decision

Issue 1: Intra-complainant tendency evidence

The defence conceded, and the court accepted, that each complainant's evidence was admissible as tendency evidence in relation to other counts concerning that same complainant. Bright DCJ was satisfied that such evidence carried significant probative value, and that any prejudicial effect was not sufficient to substantially outweigh that probative value (at [36]-[37]).

Issue 2: Cross-complainant tendency evidence and the temporal gap

The court declined to admit the evidence of each complainant as tendency evidence in relation to the counts concerning the other complainant. Applying the High Court's analysis in McPhillamy v R [2018] HCA 52, Bright DCJ found that a gap of between six years one month and eight years five months, during which the asserted tendency had not manifested, produced a weak inference that the accused still possessed that tendency at the time of the later alleged offending (at [50]).

Issue 3: Childhood to adulthood transition

Bright DCJ found that the probative value of the cross-complainant tendency evidence was further weakened because the earlier alleged offending occurred when the accused was a child aged 15 to 16 years. A tendency manifested during childhood, a period of sexual and emotional immaturity, is an even weaker foundation for inferring the same tendency in adulthood (at [51]). By the same reasoning, a tendency manifested in adulthood provided a weak basis for inferring that the same tendency existed years earlier when the accused was a child (at [52]).

Issue 4: Whether the similarities overcome the temporal gap

The Crown argued that the high degree of similarity between the two sets of alleged conduct, particularly the use of penile/anal intercourse and violent threats, compensated for the temporal gap. The court rejected that submission, finding that the similarities were of a sufficiently general nature that they did not materially increase the probative value of the cross-complainant evidence (at [53]). The court also distinguished BC v R [2019] NSWCCA 111 on the basis that no relevant temporal gap existed in that case (at [54]-[55]).

Orders Made

  • The evidence of LM is admitted as tendency evidence in relation to counts 1, 2 and 3 (LM's own counts)
  • The evidence of BW is admitted as tendency evidence in relation to counts 4, 5 and 6 (BW's own counts)
  • The evidence of LM is not admitted as tendency evidence in relation to counts 4, 5 and 6 (BW's counts)
  • The evidence of BW is not admitted as tendency evidence in relation to counts 1, 2 and 3 (LM's counts)
  • Separate trials ordered in relation to counts 1, 2 and 3 (LM) and counts 4, 5 and 6 (BW)

Key Takeaways

  • A temporal gap in the manifestation of an asserted tendency can deprive cross-complainant tendency evidence of significant probative value even where the gap is shorter than the decade considered in McPhillamy v R [2018] HCA 52; the District Court treated a gap of approximately six to eight years as having the same weakening effect (at [50]).

  • The age of the accused at the time of each alleged incident is a relevant consideration when assessing probative value: conduct alleged to have occurred during adolescence, a period of sexual and emotional immaturity, provides a weaker foundation from which to infer a stable adult tendency, and vice versa (at [51]-[52]).

  • Similarities in the manner of alleged offending, such as the type of sexual acts and the use of threats, do not automatically overcome the probative value deficit created by a substantial temporal gap where those similarities are sufficiently general in character (at [53]).

  • Under s 97(1) of the Evidence Act 1995 (NSW), significant probative value is assessed by examining whether the evidence could rationally and materially affect the probability of the existence of a fact in issue; evidence that rises no higher than weak inference will fail that threshold (at [29], [50]).

  • Where the Crown's cross-complainant tendency application fails for want of significant probative value, separate trials follow as a matter of course, since the evidence tying the two complainants' cases together cannot be placed before the jury in a joint hearing (at [57]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 66A Evidence Act 1995 (NSW), ss 55, 97, 101

Cases
- BC v R [2019] NSWCCA 111 McPhillamy v R [2018] HCA 52 R v Bauer (a Pseudonym) [2018] HCA 40 R v LN; R v AW (No. 1) [2017] NSWSC 119