R v LM

Citation: R v LM [2019] NSWDC 70
Court: District Court of New South Wales
Date: 5 March 2019
Judge(s): Colefax SC DCJ

Background

The accused was arraigned on a seven-count indictment arising from alleged conduct against his former partner. Counts 1 to 3 alleged non-consensual sexual intercourse; count 4 alleged intentional choking; and count 7 alleged intimidation of the complainant in her capacity as a witness. The accused pleaded guilty to counts 5 and 6 at arraignment, with convictions entered on those counts.

The matter came before the court not for trial but for pre-trial rulings under s 130A of the Criminal Procedure Act 1986 (NSW). The substantive trial of the remaining counts was listed to commence on 29 April 2019.

Three discrete issues were argued on the voir dire: the admissibility of tendency evidence on count 4, the severance of counts, and the admissibility and sequencing of proposed expert evidence.

Legal Issues

• Whether the Crown could adduce tendency evidence in relation to count 4 (intentional choking)
• Whether all remaining counts should be tried together before one jury, or severed
• Whether expert evidence was admissible in the Crown case and, if so, whether it could be called before the complainant gave her evidence

Decision

Issue 1: Tendency Evidence (Count 4)

The Crown sought to adduce evidence of two incidents alleged to have occurred between the accused and the complainant in mid-2007 and on Christmas Day 2009, as tendency evidence relevant to the choking charge in count 4. Colefax SC DCJ accepted that tendency evidence is prima facie inadmissible under the Evidence Act 1995 (NSW), and the party seeking to rely on it bears the onus of satisfying the relevant statutory exceptions (at [13]).

The court accepted the proposed evidence met the relatively undemanding threshold of relevance, but found it did not have "strong probative value" as required by the second limb of the test. The incidents were alleged to have occurred approximately eight to ten years before the charged conduct, and the corroborating material was described as imprecise (at [16]-[18]). Even on the assumption that strong probative value was established, the court found that ss 101, 135, and 137 of the Evidence Act were each engaged, given the time elapsed and the vagueness or loss of contemporaneous records, giving rise to a risk that the jury would use the evidence improperly (at [19]-[20]). The tendency evidence was excluded (at [21]).

Issue 2: Severance

The Crown sought to run all remaining counts before a single jury. The accused sought three separate trials. The court rejected both positions (at [25]).

Counts 1 to 4 were ordered to proceed together. The complainant was the same person across all four counts, it was undesirable to require her to give evidence more than once, and the counts shared a broad common theme of domestic violence. The court found no real risk that a jury would misapply the evidence across those counts (at [26]). Count 7, however, was severed because it concerned different subject matter and, critically, its facts would necessarily reveal to the jury that the accused was in custody at the relevant time, a disclosure the court found could not be adequately managed by any direction (at [27]). The court also found that the Crown's reliance on count 7 as consciousness of guilt evidence relevant to counts 1 to 4 faced significant difficulties and that any forensic utility was outweighed by the substantial prejudice to the accused (at [28]-[29]). Count 7 was ordered to proceed immediately after the trial of counts 1 to 4 (at [30]).

Issue 3: Expert Evidence Sequencing

The Crown proposed calling Professor Susan Hayes as an expert witness before the complainant gave evidence, relying on ss 79(1) and 108C of the Evidence Act. The court described this as a "remarkable proposition," noting it was contrary to established practice in criminal trials (at [32]).

The court held that the relevance of the expert's evidence could only be assessed after the complainant had given her own evidence, since the cross-examination of the complainant might render the expert evidence unnecessary. No ruling on the admissibility of the expert's evidence was made at the pre-trial stage; that question was reserved for the trial judge (at [33]-[34]). The Crown was ordered not to call the expert before the complainant completed her evidence (at [8]).

Orders Made

• Tendency evidence excluded: the Crown was not permitted to adduce the two tendency matters sought in relation to count 4
• Count 7 severed from counts 1 to 4, with the trial on count 7 to follow immediately after the trial of counts 1 to 4
• Expert evidence not to be adduced by the Crown before the completion of the complainant's evidence; admissibility of the expert's evidence to be determined by the trial judge after the complainant's evidence is heard

Key Takeaways

• Tendency evidence must satisfy a two-limb test under the Evidence Act 1995 (NSW): relevance and strong probative value. Where the proposed tendency incidents occurred eight to ten years before the charged conduct and are supported only by imprecise records, the strong probative value requirement will not readily be satisfied (at [14]-[18]).

• Even where tendency evidence clears the strong probative value threshold, ss 101, 135, and 137 of the Evidence Act remain available to exclude it where elapsed time and evidentiary vagueness create a risk of improper use by the jury. The District Court noted that these three provisions, as explained by the High Court in The Queen v Bauer [2018] HCA 40, convey essentially the same idea of unfair prejudice to the accused (at [19]-[20]).

• On a severance application, the fact that a co-charged count would inevitably disclose to the jury that the accused was in custody at the relevant time can constitute a form of prejudice that no jury direction can adequately remedy, justifying severance of that count (at [27]).

• Consciousness of guilt is not straightforwardly available to the Crown as a basis for joining a witness-intimidation count with the substantive counts, and any such forensic utility must be weighed against substantial prejudice to the accused (at [28]-[29]).

• Where the relevance of proposed expert evidence depends on the content and manner of the complainant's evidence at trial, it is procedurally inappropriate for the Crown to call that expert before the complainant. The question of admissibility in such circumstances is properly reserved for the trial judge after the complainant has given evidence (at [32]-[34]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss101, 135, and 137 Criminal Procedure Act 1986 (NSW), s130A

Cases
- Not stated