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Court of Criminal Appeal 17 December 2020

Hammoud v R

[2020] NSWCCA 339

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL PURSUANT TO S 5F INTERLOCUTORY DECISIONS

Citation: Hammoud v R [2020] NSWCCA 339
Court: Court of Criminal Appeal, NSW
Date: 17 December 2020
Judges: Bathurst CJ; Hoeben CJ at CL (principal judgment); Bellew J

Background

The applicant faced six counts across two separate incidents. Counts 1 to 4 alleged that he broke into the home of a 75-year-old woman in Liverpool in the early hours of 16 October 2017 and committed a series of sexual offences against her. Counts 5 and 6 alleged that he broke into the home of a different woman in Liverpool in the early hours of 22 April 1995 and sexually assaulted her. The two complainants were unrelated, and their residences were approximately one kilometre apart.

The Crown joined the six counts and served a tendency notice. The tendency alleged was the applicant's inclination to break into the homes of single women in the early hours of the morning and sexually assault them. Physical evidence, including fingerprints and DNA, connected the applicant to both incidents.

The applicant applied for a separate trial of Counts 5 and 6 in the District Court, arguing that the tendency evidence was inadmissible and that the joint trial was unfair. Judge Hanley SC refused the application. The applicant then sought leave to appeal to the Court of Criminal Appeal under section 5F(3) of the Criminal Appeal Act 1912 (NSW).

  • Whether the primary judge erred in refusing the application for separate trials
  • Whether the tendency evidence relating to each complainant met the "significant probative value" threshold under section 97(1)(b) of the Evidence Act 1995 (NSW)
  • Whether the probative value of the tendency evidence was substantially outweighed by the risk of unfair prejudice to the applicant under section 101 of the Evidence Act 1995 (NSW), such that it should have been excluded

Decision

The Court of Criminal Appeal, by unanimous decision, refused leave to appeal. Hoeben CJ at CL delivered the principal judgment, with Bathurst CJ and Bellew J agreeing.

On the question of significant probative value, the Court rejected the applicant's argument that the 21 to 22-year gap between the two incidents diluted the probative force of the tendency evidence below the statutory threshold. The Court found that the similarities between the two incidents were substantial: in both cases, the applicant broke into the home of a lone woman in the early hours of the morning, entered via a window with no signs of forced entry, and committed a sexual offence. The differences in the physical circumstances of the assaults could be explained by the applicant's age at each time.

The Court distinguished the observations in R v Dent [2016] NSWSC 99 on which the applicant relied. That decision involved a different factual matrix. The primary judge had been entitled to find that the temporal gap did not undermine the significant probative value of the tendency evidence, particularly noting that tendency evidence does not need to be proved beyond reasonable doubt (following The Queen v Bauer [2018] HCA 40) and that admissibility is assessed on the evidence taken at its highest (following IMM v The Queen [2016] HCA 14).

On the section 101 balancing exercise, the Court found no error in the primary judge's conclusion that the probative value of the tendency evidence substantially outweighed any unfair prejudice. The Court noted that the fact the offences were committed against women in their own homes was itself part of the alleged tendency, not a source of impermissible prejudice. The use of the 2017 incident to counter the applicant's explanation that his DNA at the 1995 scene came from consensual intercourse was itself a legitimate reason for admitting the evidence, and any resulting prejudice to that explanation was not of the unfair kind the section was designed to prevent.

Orders Made

  • Leave to appeal pursuant to section 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) refused
  • The application for separate trials and the challenge to the admissibility of the tendency evidence were both dismissed

Key Takeaways

  • A significant temporal gap between two incidents does not automatically reduce tendency evidence below the "significant probative value" threshold under section 97(1)(b) of the Evidence Act 1995 (NSW). The overall pattern of conduct and the nature of the similarities remain central to the assessment.
  • Under section 97(1)(b), significant probative value does not require that the tendency evidence be capable of proving guilt beyond reasonable doubt. The Court of Criminal Appeal confirmed this position by reference to The Queen v Bauer (2018) 266 CLR 56.
  • When determining admissibility of tendency evidence, the evidence must be taken at its highest, consistent with the High Court's approach in IMM v The Queen (2016) 257 CLR 300.
  • Prejudice that flows directly from the legitimate probative work of tendency evidence, such as undermining a defendant's alternative explanation for physical evidence, is not the kind of "unfair prejudice" that triggers exclusion under section 101.
  • Differences between two alleged tendency incidents do not necessarily negate admissibility. The Court found that factual distinctions between the two assaults here could be explained contextually, and the core pattern of conduct was sufficiently similar to sustain the tendency.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), ss 61I, 61L, 61N(2), 112(2)
- Criminal Procedure Act 1986 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Dent [2016] NSWSC 99
- BM v R [2017] NSWCCA 253
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- DSJ v R; NS v R [2014] NSWCCA 77