R v Hill [2019] NSWDC 513

Citation: R v Hill [2019] NSWDC 513
Court: District Court of New South Wales
Date: 19 September 2019
Judge: Bourke SC DCJ

Background

The accused faced a ten-count indictment arising from events on 12 June 2018, in which he was alleged to have abducted an 11-year-old girl from a Newcastle park and committed multiple sexual offences against her over a period of four to five hours across three locations. He had already pleaded guilty in both the Local Court and the District Court to a number of charges, including aggravated kidnapping, aggravated sexual assault by forced fellatio, and digital penetration of the complainant's vagina and anus. A further guilty plea to possession of child abuse material (relating to 16 June 2018) had also been entered.

The remaining counts in the indictment, all alleged to have occurred on the same day and against the same complainant, were to proceed to trial. Two pre-trial applications required determination before the trial could commence.

Legal Issues

Whether the Crown's proposed "tendency" evidence was admissible under the Evidence Act 1995, and whether it was properly characterised as tendency evidence at all
Whether any such evidence should be excluded under ss 135 or 137 of the Evidence Act 1995 on the basis of unfair prejudice
Whether the accused's trial should be conducted by judge alone, in circumstances where the Crown opposed that application

Decision

On the tendency evidence application, the court ruled the Crown's proposed evidence admissible, but on different grounds than those the Crown advanced. The Crown framed the evidence as tendency evidence under s 97 of the Evidence Act 1995, relying on The Queen v Bauer [2018] HCA 40 to argue the admitted offences demonstrated a tendency toward sexual interest in the complainant and a tendency to act on it. The court rejected that characterisation. Because all the acts, both admitted and disputed, occurred on the same day against the same complainant, the evidence demonstrated an actual state of mind rather than a mere tendency toward one.

The court held the evidence was admissible on two distinct bases. First, it was directly probative of the accused's actual sexual interest in the complainant at the time of the admitted offences. Second, it formed part of a connected and continuous series of events beginning with the abduction and ending with the complainant's release hours later. The court applied the principle drawn from O'Leary v The King (1946) 73 CLR 566 and a line of New South Wales appellate authority to the effect that evidence of acts forming part of a single continuous transaction is admissible as part of the narrative of events. The court was satisfied the probative value of the evidence far outweighed any danger of unfair prejudice, and declined to exclude it under ss 135 or 137.

On the judge-alone application, the court acknowledged that pre-trial publicity, particularly in the Newcastle area, was significant and would likely intensify during the trial. While directing a jury to disregard media coverage is standard practice and generally effective, the court accepted that no direction could entirely eliminate the risk of unfairness in this case. The court also considered the practical difficulty of crafting accurate and effective directions to guide a jury on the proper use of the evidence concerning the connected acts on the day in question, noting this complexity as an additional factor.

The court further reasoned that the charged conduct, if it occurred as alleged, unquestionably constituted serious criminality requiring no application of contested community standards. A jury would therefore hold no particular advantage over a judge alone in resolving the factual questions at issue. Taking all circumstances together, the court was satisfied it was in the interests of justice to order a judge-alone trial.

Orders Made

The Crown's tendency evidence, as identified in its notice dated 16 August 2019, was ruled admissible in the accused's trial
An order was made that the accused's trial proceed by judge alone

Key Takeaways

Where all admitted and alleged acts occur on the same day against the same complainant as part of a continuous transaction, the District Court held that the evidence is better characterised as proof of an actual state of mind and as connected-transaction evidence, rather than as tendency evidence within the meaning of s 97 of the Evidence Act 1995.
The connected-transaction principle, drawn from O'Leary v The King and affirmed in subsequent New South Wales Court of Criminal Appeal decisions, provides an independent basis for admitting evidence of multiple acts occurring within a single episode, without engaging the tendency rule's exclusionary framework.
Evidence is not rendered unfairly prejudicial merely because it tends to prove the commission of the offences charged; the court must weigh probative value against the risk of genuine unfair prejudice under ss 135 and 137 of the Evidence Act 1995.
Pre-trial publicity alone does not automatically justify a judge-alone trial; the court assessed publicity alongside the complexity of required jury directions and the absence of any community-standards question before concluding that the interests of justice favoured a judge-alone order.
Under the Crimes Act 1900, a judge-alone order may be made without the Crown's consent where the court is satisfied it is in the interests of justice to do so, and that assessment is highly fact-specific.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61J(1) and 86(2)
- Evidence Act 1995 (NSW), ss 97, 135, 137

Cases
- The Queen v Bauer [2018] HCA 40
- O'Leary v The King (1946) 73 CLR 566
- R v Adam [1999] 47 NSWLR 267
- R v Player [2000] NSWCCA 123
- Jiang v R [2010] NSWCCA 277
- Elomar & Ors v R [2014] NSWCCA 303