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District Court 20 March 2019

R v AR

[2019] NSWDC 71

Sexual offences

Citation: R v AR [2019] NSWDC 71
Court: District Court of NSW
Date: 20 March 2019
Judge(s): Bright DCJ

Background

The accused faced four counts of sexual offences against two child complainants: his stepdaughter EB (born 2003) and his biological daughter KR (born 2009). The allegations against EB concerned conduct alleged to have occurred nearly every night over approximately two years while the accused was in a de facto relationship with EB's mother, and included digital penetration and attempted penile penetration. The allegations against KR arose from a single access visit in July 2013 when KR was four years old, during which the accused allegedly engaged in penile contact with her vagina.

The Crown presented a joint indictment and served a tendency notice, intending to use each complainant's evidence in relation to the counts concerning the other. Before the jury was empanelled, defence counsel sought separate trials, arguing the tendency evidence was inadmissible. The court heard full argument on the admissibility of that evidence and of a number of specific uncharged acts.

Legal Issues

  • Whether the evidence of each complainant was cross-admissible as tendency evidence against the counts relating to the other complainant, under sections 97 and 101(2) of the Evidence Act 1995
  • Whether various specific uncharged acts had "significant probative value" for tendency purposes under section 97(1)
  • Whether, where evidence did satisfy the significant probative value threshold, its probative value substantially outweighed any prejudicial effect under section 101(2)
  • Whether any of the contested evidence should be excluded because the jury might misuse it as general propensity evidence

Decision

Issue 1: Cross-admissibility of each complainant's evidence

Bright DCJ found that the evidence of both complainants shared features sufficient to establish the relevant tendency. The accused occupied a parental role towards each child, asked each to undress, and engaged in penile-vaginal contact when each was prepubescent (at [37]). The judge rejected the defence submission that the common features were too general, finding the linking characteristics were specific enough to constitute significant probative value (at [37]). On the section 101(2) balancing exercise, the court was satisfied that the probative value of each complainant's evidence substantially outweighed any prejudicial effect, having regard to the court's capacity to direct the jury appropriately on permissible use (at [42]-[43]).

Issue 2: Uncharged acts relating to KR

The court admitted the complaint KR made to her mother on 3 July 2013 as tendency evidence, considered in combination with KR's later disclosure on 5 August 2015 that her father had shown her his private parts and she had sucked it (at [64]-[65]). The court similarly admitted the complaints made by KR to both her mother and her mother's partner in August 2015, finding each highly probative of sexual interest in KR (at [67]). The court excluded KR's statements involving dolls and other children recorded in January 2014, finding they did not link to any preceding conduct by the accused and therefore lacked significant probative value (at [66]).

Issue 3: Uncharged acts relating to EB

The court admitted EB's account that the accused engaged in regular sexual acts with her over approximately two years, finding it highly probative of sexual interest in EB (at [77]-[79]). Evidence from a third-party witness, ZB, that he saw the accused touching EB on his lap while she told him to stop was admitted, with the court noting its particular probative force given the independent source (at [93]). Separately, ZB's account of seeing the accused use tongs to jab at EB's bottom and vagina was also admitted on the same reasoning (at [100]). An incident involving EB and her friend TS, where the accused allegedly checked on the children when they were six or seven years old, was excluded because there was no alleged sexual misconduct and no significant probative value was established (at [108]). Two categories of evidence from MB were also excluded: one because the court was doubtful it established the asserted tendency and found it lacked significant probative value (at [112]), and the other because it went only to opportunity rather than sexual interest (at [118]).

Orders Made

  • The evidence of both EB and KR concerning the counts on the indictment is cross-admissible as tendency evidence.
  • The following specific evidence is admissible as tendency evidence:
  • Statement of CR at paragraphs 28-31 and 52 (KR's complaint on 3 July 2013 and August 2015 disclosure)
  • Statement of BK at paragraphs 6 and 9 (August 2015 disclosures by KR)
  • Record of interview with EB dated 10 January 2017, relating to regular sexual acts over approximately two years
  • EB's representations in her walk-through video with police regarding regular sexual acts
  • EB's complaint to LM (ROI QA 35, 36, 62-81)
  • Record of interview with EB dated 30 November 2017 (QA 58-103)
  • Evidence of TS at paragraphs 5-6
  • Record of interview with ZB dated 12 January 2017 (QA 112-189, 190-253)

Key Takeaways

  • Under the Queen v Bauer (2018) HCA 40 framework applied here, tendency evidence from one complainant can be cross-admissible in relation to charges involving a different complainant where specific linking features, rather than generalised commonality, connect the alleged conduct. A parental role, direction to undress, and penile-vaginal contact with prepubescent children sufficed in this case (at [36]-[37]).
  • Where the accused's conduct involves a single complainant, uncharged acts need not be of the same kind as the charged acts in order to have significant probative value for tendency purposes, provided the conduct is capable of demonstrating a sexual interest in that complainant (at [84]-[85]).
  • The District Court confirmed that the section 101(2) balancing exercise, whether probative value substantially outweighs prejudicial effect, can take into account the court's capacity to direct the jury on permissible and impermissible uses of tendency evidence (at [42]-[43], [70]).
  • Uncharged act evidence that does not connect to any conduct by the accused, or that carries only a rational innocent explanation without any alleged sexual misconduct, will not meet the significant probative value threshold required by section 97(1) of the Evidence Act 1995 (at [66], [108]).
  • Third-party evidence of uncharged conduct, as distinct from the complainant's own account, can carry particular probative weight in the tendency analysis, given its independent source (at [93], [100]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- BC v R [2015] NSWCCA 327
- Ceissman v R [2015] NSWCCA 74
- DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
- Hughes v R [2015] NSWCCA 330
- IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315
- R v LN; R v AW (No. 1) [2017] NSWSC 119
- R v Lockyer (1996) 89 A Crim R 457
- R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- The Queen v Bauer 2018 HCA 40