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District Court 2 September 2019

R v Asiminaris

[2019] NSWDC 94

Sexual offences
EVIDENCE TENDENCY EVIDENCE

Citation: R v Asiminaris [2019] NSWDC 94
Court: District Court of New South Wales
Date: 2 September 2019
Judge(s): Hatzistergos DCJ

Background

The accused faced charges arising from alleged sexual conduct with a complainant, referred to as B, while she was employed as a Youth Worker supervising detainees at Reiby Juvenile Justice Centre. B had been admitted to Reiby in October 1996 at age 15. The alleged offending included sexual intercourse at a car park during B's work release, inside the Whitten cell block, and at the accused's brother's house after B's release. The accused later became pregnant, and a child was born in October 1998.

The Crown sought to admit tendency evidence concerning the accused's later conduct with a second detainee, S, during her subsequent employment as a psychologist at Cobham Juvenile Justice Centre. The alleged conduct with S occurred from around May to September 2006, some nine years after the charged offences. The accused had been dismissed from Cobham in January 2007 following an internal investigation into that relationship.

The Crown applied under section 192A of the Evidence Act 1995 (NSW) for a preliminary ruling on the admissibility of the tendency evidence before the jury was empanelled. The court ruled the evidence inadmissible, discharged the initial jury, and delivered reasons on 2 September 2019.

Legal Issues

  • Whether the tendency evidence relating to detainee S had significant probative value under section 97(1)(b) of the Evidence Act 1995 (NSW)
  • Whether the probative value of the tendency evidence substantially outweighed the unfair prejudice to the accused under section 101(2) of the Evidence Act 1995 (NSW)
  • What weight, if any, should be attributed to the nine-year gap between the alleged charged offences and the later conduct said to establish the tendency
  • Whether the volume and detail of the tendency evidence created a risk that the jury would be diverted from its proper task

Decision

Issue 1: Whether a tendency was established

The court accepted that the evidence of S demonstrated a tendency on the accused's part to engage in inappropriate relationships with detainees under her care, including by sending romantic or sexual letters and providing prohibited items such as cigarettes. The evidence also established a tendency to engage in sexual activity with detainees in juvenile justice facilities (at [54]). The accused's concession that she had "gone too far" in her dealings with B did not resolve the extent of the admitted overreach, and the court found it difficult to ascertain what the concession actually encompassed (at [53]).

Issue 2: Significant probative value and the nine-year time gap

The court acknowledged that tendency evidence going beyond a single incident or encounter with S could otherwise elevate probative value, particularly given common features shared between B's and S's accounts (at [55]). However, the nine-year gap between the charged offences and the conduct with S, combined with the fact that the tendency evidence related to post-offence conduct, significantly limited its probative weight (at [57], [65]). The court also noted that the tendency evidence addressed conduct inside a detention centre only in relation to Counts 3 and 4, and did not speak to whether the accused would engage in sexual intercourse with a detainee under the age of 16 (at [65]). The Crown's reasoning that a successful first relationship made a second more likely was described as circular, given that the tendency evidence remained in dispute (at [62]).

Issue 3: Whether probative value substantially outweighed prejudicial effect

The court identified a significant risk that the jury would be overwhelmed by the volume and detail of evidence concerning the relationship with S. Unlike the evidence concerning B, the evidence relating to S included actual correspondence, a handwriting expert, evidence from a witness about the use of aliases, and recordings of phone calls (at [70]). The court found that this body of material would risk dominating the trial and diverting the jury from properly considering the charges relating to B (at [71]-[72]). Jury directions alone were considered insufficient to obviate this risk, and the Crown had not demonstrated how sections 135 and 137 of the Act would address the identified prejudice (at [72]). The court was not satisfied that the probative value substantially outweighed the prejudicial effect, and ruled the evidence inadmissible under section 101(2) of the Act (at [73]).

Orders Made

  • The proposed tendency evidence was ruled inadmissible pursuant to section 101(2) of the Evidence Act 1995 (NSW), the court not being satisfied that its probative value substantially outweighed the prejudicial effect to the accused.

Key Takeaways

  • A nine-year gap between charged offences and later conduct said to establish a tendency will significantly constrain the probative value of that tendency evidence, particularly where the later conduct post-dates the alleged offending (at [57], [65]).

  • Under section 101(2) of the Evidence Act 1995 (NSW), even evidence that does establish a relevant tendency may be excluded if the risk of jury distraction or misuse is sufficiently serious that it cannot be remedied by directions alone (at [71]-[73]).

  • Where tendency evidence is especially detailed and cogent compared to the evidence on the charges, the volume of the tendency evidence can itself become a source of prejudice, raising the prospect that the tendency issues will come to dominate the trial (at [70]-[72]).

  • The District Court confirmed that the Crown must do more than assert that jury directions or the application of sections 135 and 137 will address prejudice; it must demonstrate how those provisions would in fact operate to cure the identified risk (at [72]).

  • Circular reasoning does not strengthen a tendency application: the argument that a second alleged relationship was made more probable by the first cannot be relied upon where the tendency evidence is itself in dispute and not admitted by the accused (at [62]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 97, 101, 192A

Cases
- Adams v R [2017] NSWCCA 215
- Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52
- R v Bauer (a pseudonym) (2018) 359 ALR 359; [2018] HCA 40
- R v Beserick (1993) 30 NSWLR 510
- R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
- RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71