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District Court 12 June 2020

R v CP

[2020] NSWDC 294

Sexual offencesDomestic & family violence
EVIDENCE ADMISSIBILITY TENDENCY EVIDENCE UNCHARGED ACTS

Citation: R v CP [2020] NSWDC 294
Court: District Court of NSW
Date: 12 June 2020
Judge: Weinstein SC DCJ

Background

The accused faced a charge of sexual assault involving his younger sister, the complainant. The Crown sought to adduce tendency evidence under s 97 of the Evidence Act 1995, relying on an earlier uncharged act alleged to have occurred in the family home in Queensland. That earlier incident involved the accused allegedly rubbing the complainant's genital area over her clothing while the two were alone in his bedroom.

A central complication arose around the accused's age at the time of the uncharged act. The accused was born in February 1998, and the alleged uncharged act was said to have occurred sometime between late 2011 and late 2012. Whether he had yet turned 14 at the time was disputed, raising the question of whether the doli incapax presumption applied. That presumption (from the Latin meaning "incapable of wrongdoing") holds that children aged 10 to 13 are presumed not to know their conduct was seriously wrong, and it can only be rebutted by the Crown proving otherwise beyond reasonable doubt.

The Crown conceded it could not rebut the doli incapax presumption to the criminal standard. It nonetheless applied for the tendency evidence to be admitted, arguing that the uncharged act could still demonstrate the accused's sexual attraction to the complainant and his tendency to act on that attraction.

Legal Issues

  • Whether the Crown had established on the balance of probabilities that the accused was 14 or older at the time of the uncharged act, such that doli incapax did not apply.
  • Whether tendency evidence of an uncharged act is admissible when the accused was doli incapax at the time that act occurred.
  • Whether the proposed tendency evidence had sufficient relevance and significant probative value under ss 55, 56 and 97 of the Evidence Act 1995.
  • Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused under ss 101 and 137 of the Evidence Act 1995.

Decision

Issue 1: Whether doli incapax applied to the uncharged act

The court found the Crown had not proven on the balance of probabilities that the accused was at least 14 years old at the time of the uncharged act (at [12]). The available evidence placed the alleged incident across a period during which the accused was both under and over 14. Because the precise timing could not be established with sufficient certainty, the court found the accused was doli incapax in relation to that act (at [12]).

Issue 2: Admissibility of tendency evidence where doli incapax applies

The court accepted that tendency evidence of an uncharged act can still be admissible even where the accused was doli incapax at the time, subject to important limitations on how the tendency is framed (at [16]-[20]). Relying on DS v R [2018] NSWCCA 195 and BC v R [2019] NSWCCA 111, the court confirmed that such evidence may be used to demonstrate a sexual attraction to the complainant and a tendency to act on that attraction, but it cannot be characterised as a tendency to commit a sexual assault (at [16], [18]). A person may have a sexual interest in another without knowing that acting on it is seriously wrong, and the tendency evidence goes to that state of mind rather than to criminality (at [13]).

Issue 3: Relevance and significant probative value

The court found the proposed tendency evidence was clearly relevant to the central fact in issue, namely whether the accused sexually assaulted the complainant as charged (at [32]). Applying the test from Hughes v The Queen (2017) 263 CLR 338 and IMM v The Queen (2016) 257 CLR 300, the court held the evidence had significant probative value because it had the capacity to materially affect the assessment of the major fact in issue (at [48]). No striking similarity between the uncharged and charged acts was required; the logic was that a person sexually attracted to the complainant who had previously acted on that attraction is more likely to do so again (at [30]).

Issue 4: Probative value versus prejudicial effect

The court weighed the probative value of the evidence against the risks of prejudice under ss 101 and 137 of the Evidence Act 1995 (at [49], [64]-[66]). It acknowledged two risks: an emotional jury response to the uncharged act, and the risk of jurors conflating the uncharged act with the charged act (at [64]). The court found these risks were not beyond those ordinarily attending the admission of tendency evidence, and that careful jury directions would adequately ameliorate any potential prejudice (at [64]). Accordingly, the court was satisfied that probative value substantially outweighed prejudicial effect, and admitted the evidence (at [64], [67]).

Orders Made

  • The Crown's application to rely on the complainant's evidence concerning the earlier uncharged incident the subject of the Tendency Notice was allowed.
  • The application was granted subject to the court's finding that the accused was doli incapax at the time of the uncharged act.

Key Takeaways

  • Tendency evidence of an uncharged act committed while the accused was doli incapax may still be admissible, provided the tendency is framed as a sexual attraction and inclination to act on it, rather than as a tendency to commit a criminal act (at [16]-[20]).
  • The District Court confirmed that the language used to describe the tendency is critical: characterising it as a tendency to "sexually assault" a complainant is impermissible, whereas a tendency to have a sexual interest in the complainant and to act on that interest is a permissible framing (at [16], [18]).
  • Under s 142 of the Evidence Act 1995, the Crown must prove on the balance of probabilities that an accused was at least 14 at the time of an uncharged act before the doli incapax presumption falls away; an inability to pinpoint timing across a disputed period will be fatal to that argument (at [12]).
  • No striking similarity between uncharged and charged acts is required for tendency evidence to have significant probative value; the relevant logic is that prior conduct reflecting sexual attraction to a specific person makes further acts of that kind more probable (at [30], [37]).
  • Potential jury prejudice arising from doli incapax tendency evidence is not, without more, a reason to exclude it; the ameliorating effect of careful judicial directions is a relevant consideration in the s 101(2) balancing exercise (at [53], [64]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- Aravena v The Queen (2015) 91 NSWLR 258; [2015] NSWCCA 288
- BC v R [2019] NSWCCA 111
- BJS v R (2013) 231 A Crim R; [2013] NSWCCA 123
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- DS v R (2018) 274 A Crim R; [2018] NSWCCA 195
- Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v R (2018) 461 ALR 13; [2018] HCA 52
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Ford (2009) 273 ALR 286; [2009] NSWCCA 306
- RP v The Queen (2016) 259 CLR 461; [2016] HCA 53