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District Court 11 May 2020

R v Swain

[2020] NSWDC 198

Sexual offences
EVIDENCE APPLICATION TO LEAD TENDENCY EVIDENCE OBJECTION TO CROSS APPLICATION FOR TRIAL BY JUDGE ALONE RELIANCE UPON COVID 19 PANDEMIC

Citation: R v Swain [2020] NSWDC 198
Court: District Court of New South Wales
Date: 11 May 2020
Judge(s): Abadee DCJ

Background

The accused faced four counts of child sexual assault on an indictment, involving two complainants. Counts 1 and 2 alleged digital penetration of a seven-year-old girl (TP) in February 2004, during a car trip and at a private residence. Counts 3 and 4 (the latter in the alternative) alleged sexual touching of a twelve-year-old girl (JS) between March and June 2017, in circumstances where the accused was living with her family.

Several pre-trial applications came before Abadee DCJ. The accused applied for trial by judge alone, which the Crown opposed. The Crown also sought to lead tendency evidence in three ways: within each complainant's case, cross-admissible between both complainants, and derived from uncharged conduct involving a third person (HK) and from the accused's New Zealand criminal history for sexual offences.

The accused did not object to tendency evidence used within each individual complainant's case. He did object to cross-admissibility of that evidence between complainants and to the use of the uncharged conduct and foreign criminal history as tendency evidence. A bail application was also before the court, but the accused did not press it after the judge indicated he would grant the judge-alone application.

  • Whether it was in the interests of justice to order trial by judge alone, given the COVID-19 pandemic's effect on jury trials in Gosford
  • Whether tendency evidence was cross-admissible as between the two complainants, given the approximately 13-year gap between the alleged offending in 2004 and 2017
  • Whether uncharged conduct involving a third person (HK) and the accused's New Zealand criminal convictions were admissible as tendency evidence

Decision

Trial by judge alone: Abadee DCJ granted the application under s 365 of the Criminal Procedure Act 1986 (NSW), as amended by the COVID-19 Legislation (Emergency Measures) Act 2020 (NSW). The court noted that, under the amended legislative framework, there was no evidentiary onus on the accused to establish that a judge-alone trial was in the interests of justice. Relevant factors included that jury trials in Gosford were not expected to resume before the scheduled trial date of 22 June 2020, the accused had been in custody since late 2018 through no fault of his own, and his trial had already been vacated. The court drew on reasoning in comparable District Court decisions, including Regina v BD (No.1) and R v MPW, and found the interests of justice favoured a judge-alone trial.

Cross-admissibility of tendency evidence: The court considered whether the 13-year gap between the two sets of alleged conduct substantially diluted probative value, as contemplated in McPhillamy v The Queen. It distinguished that case on the basis that here there were common features traceable back to conduct from 1995 (reflected in admissions made in 1998), a consistent pattern of digital penetration or genital touching of young female victims, and evidence of a sexual interest in female children that appeared to persist from adolescence into adulthood. Applying Hughes v The Queen, the court reasoned that viewing the accused's conduct as a whole, rather than in isolated pairs, the time gap did not strip the 2004 conduct of significant probative value in relation to the 2017 allegations. The tendency evidence was ruled cross-admissible between the two complainants.

Uncharged conduct and foreign criminal history: The court did not reproduce its full reasoning on these aspects in the provided text, but it is clear from the judgment structure and the accused's concessions (following The Queen v Bauer) that the tendency evidence framework under the Evidence Act 1995 (NSW) governed admissibility. The s 101 objection was ultimately not pressed after the judge-alone application was granted.

Orders Made

• The tendency evidence is admissible as between the complainants.

Key Takeaways

  • Under the Criminal Procedure Act 1986 (NSW) as amended by COVID-19 emergency legislation, an accused bears no evidentiary onus to demonstrate the interests of justice favour a judge-alone trial; the court weighs those interests in light of the specific circumstances, including pandemic-related disruptions to jury sittings.
  • A significant time gap between alleged offences does not automatically defeat a tendency evidence application. Where common features are traceable across a longer timeframe and the accused's conduct can be viewed as a continuing pattern, courts may find the gap does not substantially dilute probative value.
  • The District Court distinguished McPhillamy v The Queen on the basis that cross-admissibility depended on common features spanning multiple episodes, not simply on the interval between two discrete sets of alleged conduct.
  • Applying Hughes v The Queen, tendency evidence is assessed by examining the totality of alleged conduct rather than treating each episode in isolation when evaluating time-gap arguments.
  • The accused's concession that tendency evidence was admissible within each complainant's individual case reflected the effect of The Queen v Bauer, which confirmed that courts may use such evidence to support findings on individual counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A, 66C
- Criminal Procedure Act 1986 (NSW), ss 131, 132, 365
- Evidence Act 1995 (NSW), ss 55, 91, 97, 101
- COVID-19 Legislation (Emergency Measures) Act 2020 (NSW)
- Foreign Evidence Act 1994 (Cth), s 24
- Interpretation Act 1987 (NSW), s 33

Cases:
- Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20
- McPhillamy v The Queen (2018) 361 ALR 13; [2018] HCA 52
- The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Regina v BD (No.1) (Judge Alone Application) [2020] NSWDC 150
- R v MPW [2020] NSWDC 170
- R v Johnson [2020] NSWDC 153
- BC v R [2019] NSWCCA 111
- TB v R [2019] NSWCCA 224
- Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
- R v Moussa [2017] NSWCCA 267
- RH v The Queen (2014) 241 A Crim R 1; [2014] NSWCCA 71
- R v SK [2011] NSWCCA 292