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District Court 18 December 2019

R v DLW

[2019] NSWDC 940

Sexual offences

Citation: R v DLW [2019] NSWDC 940
Court: District Court of New South Wales
Date: 18 December 2019
Judge: Bright DCJ

Background

The accused, born in February 1998, faced a seven-count indictment in the Gosford District Court involving three complainants: LM, AP, and BW. Counts 1 to 3 related to alleged aggravated sexual assault against LM (aged 10 to 11) occurring between 2002 and 2003, when the accused was 14 to 16 years old. Count 4 concerned an alleged aggravated sexual assault against AP (aged 12) in late 2004, when the accused was 16. Counts 5 to 7 related to alleged sexual offences against BW (aged 7) between 2009 and 2010, when the accused was 21 to 22 years old.

The Crown sought leave to present an amended indictment adding the AP count and also applied to admit the evidence of each complainant as tendency evidence cross-admissible against the other counts. The Crown further sought to adduce evidence from two additional witnesses, KT and LW, as tendency evidence relating to uncharged acts.

This judgment followed an earlier pre-trial ruling in July 2019 (R v DLW [2019] NSWDC 305), in which the Court had already declined an application for cross-admissibility between LM and BW. The November 2019 hearing revisited the question in an expanded form, with the Crown now seeking broader cross-admissibility across all three charged complainants and the two uncharged witnesses.

  • Whether the Court should grant leave to present an amended indictment adding a count relating to complainant AP.
  • Whether the evidence of LM, AP, and BW should be admitted as tendency evidence cross-admissible between the respective counts, under s 97(1) of the Evidence Act 1995 (NSW).
  • Whether the evidence of uncharged act witnesses KT and LW should be admitted as tendency evidence.
  • Whether the probative value of the proposed tendency evidence was sufficient to satisfy the statutory threshold, having regard to the temporal gap between offences and the fact that some alleged offending occurred when the accused was a child.

Decision

Bright DCJ declined to admit the evidence of LM and AP as tendency evidence in relation to the BW counts. The central difficulty was that the alleged offending concerning LM and AP occurred when the accused was 14 to 16 years old, while the alleged offending concerning BW occurred some four to five years later when he was 21 to 22. The Court found that a tendency manifested during childhood is a particularly weak foundation for inferring the same tendency as an adult, given the ordinary context of sexual and emotional immaturity in adolescence.

The Court applied the same logic in reverse: evidence of the adult conduct alleged in the BW counts did not have significant probative value in inferring a tendency at the time of the earlier, childhood offending. The temporal gap of nearly five years compounded the weakness in both directions. The Court rejected the Crown's submission that similarities across the offending overcame these concerns, finding the similarities relied upon were too general to materially increase probative value.

The application to admit the uncharged act evidence of KT and LW as tendency evidence was also declined, for reasons consistent with the broader findings on probative value. As a result, leave to present the amended indictment was refused. The Court noted, having enquired of the Crown during the hearing, that no further pre-trial ruling was sought regarding whether to proceed on two separate indictments covering the LM and AP counts separately from the BW counts.

Orders Made

  • Leave to present the amended indictment was declined.

Key Takeaways

  • The District Court confirmed that a tendency allegedly manifested during a defendant's childhood carries diminished probative value when used to infer the same tendency existed years later in adulthood, particularly given adolescent immaturity.
  • A temporal gap of approximately five years between alleged offending as a teenager and alleged offending as an adult was a significant factor reducing the probative value of proposed tendency evidence under s 97(1) of the Evidence Act 1995 (NSW).
  • General similarities in the nature of offending, without more, did not satisfy the Court that the tendency evidence crossed the threshold of "significant probative value" required by s 97(1).
  • Cross-admissibility of evidence between complainants in multi-count proceedings is not established merely by similarity in the type of offending; the court must assess probative value in light of the specific circumstances, including the accused's age at the time of each alleged act.
  • Refusing leave to amend an indictment to add a further count was the appropriate consequence where the proposed tendency evidence underpinning the broader Crown case could not meet the statutory admissibility threshold.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61(1), 66A(1)
- Evidence Act 1995 (NSW), s 97(1)

Cases
- BC v R [2019] NSWCCA 111
- Hughes v R [2017] HCA 20
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- R v Bauer (a pseudonym) [2018] HCA 40
- R v DLW [2019] NSWDC 305
- R v Ford (2009) 273 ALR 286
- R v LN; R v AW (No. 1) [2017] NSWSC 119