Citation: R v JM [2020] NSWDC 179
Court: District Court of New South Wales
Date: 6 May 2020
Judge(s): Abadee DCJ
Background
The accused faced trial on 10 counts of alleged sexual offences involving four complainants, all young children of the same family. The complainants ranged in age from approximately 3 to 9 years old. The Crown alleged the offending occurred over roughly two and a half years, between March 2015 and August 2017, during a period of frequent social contact between the accused's family and the complainants' family.
The Crown applied to lead tendency evidence, seeking to use evidence relating to each complainant as cross-admissible tendency evidence in relation to the counts concerning the other complainants. The accused did not object to tendency evidence being used within counts relating to any individual complainant, but contested its cross-admissibility across complainants.
The central dispute was whether the tendency identified in the Crown's tendency notice possessed "significant probative value" as required by section 97(1)(b) of the Evidence Act 1995 (NSW), or whether it was framed at too high a level of generality to satisfy that threshold.
Legal Issues
- Whether the tendency evidence, as described in the Crown's tendency notice, met the "significant probative value" threshold under section 97(1)(b) of the Evidence Act 1995 (NSW)
- Whether the tendency was expressed at too high a level of generality to establish a sufficient link between the alleged offending against each complainant
- Whether any distinction should be drawn regarding the single male complainant (the subject of count 10) when applying the tendency evidence
Decision
Issue 1: Significant probative value and level of generality
The accused argued the tendency, as particularised, amounted in substance to nothing more than a general sexual interest in children and a disposition to act on it. He relied on the principle, confirmed in R v Bauer, that the mere fact an accused offended against one complainant is not ordinarily significantly probative of offending against another (at [12]-[13]).
The court rejected that submission. It found that a number of common features, taken together, elevated the tendency evidence beyond a bare assertion of general sexual interest in children (at [15]-[16]). Those features included: the very young age band of all complainants (3 to 9 years); the fact all complainants were members of the same family; the specific familial connection between the two families that provided the context for the alleged offending; that the conduct in each case involved touching of the genital region; and that the alleged offending occurred on multiple occasions within a confined period of two and a half years (at [16]).
The court distinguished the facts from those in McPhillamy, where the tendency was said to have been manifested more than a decade before the alleged offending, noting the temporal proximity here was markedly different (at [16]).
Issue 2: The male complainant (count 10)
The accused submitted that a tendency to touch a girl's genitals could not be probative of the count involving the sole male complainant. The court considered whether to treat the male complainant's position separately, but declined to do so (at [18]). All of the common features identified applied equally to his circumstances, even if there was a difference in his case compared to the female complainants (at [18]).
Issue 3: The accused's own age at the time
The accused also raised the fact that he himself was a young person during the relevant period. The court did not accept that this submission had any bearing on the tendency application, noting it was not suggested his age made it impossible to establish the requisite tendency, and that if anything it represented another feature of the interactions falling outside ordinary human experience (at [17]).
Orders Made
- The Crown is permitted to use the tendency evidence not only in relation to counts pertaining to each individual complainant, but also as cross-admissible tendency evidence in relation to the other complainants.
Key Takeaways
- The District Court confirmed that tendency evidence framed around sexual interest in children will not satisfy the "significant probative value" threshold under section 97(1)(b) of the Evidence Act 1995 (NSW) at a high level of generality, but a combination of specific common features can be sufficient to establish the requisite link between complainants (at [15]-[16]).
- Common features capable of elevating tendency evidence above mere generalisation include: the age band of complainants, a shared family membership, a particular social context providing access, consistency in the nature of the alleged conduct, and a confined timeframe of offending (at [16]).
- Under R v Bauer, the mere fact of offending against one complainant is ordinarily not significantly probative of offending against another; something more must link the alleged conduct across complainants (at [12]).
- Temporal proximity between instances of the alleged tendency matters: the court drew an explicit contrast with McPhillamy, where a gap of over a decade between the tendency evidence and the alleged offending was a significant factor weighing against significant probative value (at [16]).
- Where no objection is raised under section 101(2) of the Evidence Act 1995 (NSW), and the section 97 threshold is satisfied, tendency evidence becomes cross-admissible across all relevant counts (at [19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 101
Cases
- Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300
- McPhillamy v The Queen [2018] HCA 52
- R v Bauer (a pseudonym) (2018) 92 ALJR 846