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District Court 23 April 2020

R v AA

[2020] NSWDC 362

Sexual offences
INTERLOCUTORY ORDERS ADMISSIBILITY OF TENDENCY EVIDENCE

Citation: R v AA [2020] NSWDC 362
Court: District Court of New South Wales
Date: 23 April 2020
Judge(s): Norrish QC DCJ

Background

The accused, a Roman Catholic priest ordained in 1980 and appointed to a regional parish in 1984, faced five counts of sexual intercourse without consent against a male complainant who was 16 or 17 years old at the time of the alleged offences. The complainant and his family were parishioners of the accused's parish, and the accused provided religious services to the local Catholic high school where the complainant was a student. The accused offered the complainant driving lessons, which the complainant's parents gratefully accepted, and the alleged offending occurred during and after those lessons in late 1986 and again in April 1987.

The Crown alleged that on two separate occasions, the accused engaged the complainant in sexual activity at the presbytery without consent, including oral and anal intercourse. A pre-trial hearing was convened to determine, among other things, whether the Crown could rely on tendency evidence to prove guilt. The tendency evidence proposed by the Crown fell into three categories: the evidence of each charged count as cross-admissible tendency evidence in respect of the other counts; evidence of uncharged acts involving the complainant; and "other evidence" from two consensual adult partners (KK and LL) and from correspondence, a police interview, and a psychological report.

Legal Issues

  • Whether evidence of each charged count is cross-admissible as tendency evidence in respect of the other counts, under section 97 of the Evidence Act 1995.
  • Whether evidence of uncharged acts involving the complainant is admissible as tendency evidence.
  • Whether "other evidence" (including accounts from KK and LL, correspondence from 1992, a 1996 police interview, and a 2015 psychological report) satisfies the threshold of significant probative value under section 97(1)(b) and, if so, whether it should be excluded under section 101(2).

Decision

Issue 1: Cross-admissibility of the charged counts

The court admitted the evidence of each charged count as tendency evidence in respect of the other counts on the indictment (at [145]). Applying R v Bauer [2018] HCA 40, the court found that the charged acts involved one complainant, were not far separated in time, and were not far different in nature or gravity from one another. The evidence carried significant probative value because ordinary human experience supports the inference that a person sexually attracted to another and who has acted on that attraction will seek to do so again when opportunity arises (at [120], [135]). The court also concluded that any risk of unfair prejudice did not outweigh the probative value and could be addressed by appropriate jury directions (at [135]).

Issue 2: Uncharged acts involving the complainant

The court found that the uncharged acts concerning the complainant, primarily the sexual activity that occurred when the complainant visited the accused in December 1988 after the complainant turned 18, are not admissible as tendency evidence (at [146]). That conduct did not disclose lack of consent, and no criminal charges had been preferred in respect of it. The court characterised this material as context and relationship evidence, admissible under section 293 of the Criminal Procedure Act 1986, to explain how the relationship developed and the circumstances in which the specific charged offences occurred (at [136], [146]).

Issue 3: Other evidence from KK, LL, correspondence, interviews, and the psychological report

The court excluded all of this material as tendency evidence. In relation to KK and LL, the court found their accounts lacked significant probative value because there was no suggestion of any sexual activity without consent (at [137]). The accused's homosexual interest in younger men was not illegal, and the detail of sexual conduct described by both witnesses was consistent with consensual seduction rather than with the pattern of conduct alleged by the complainant (at [138]). Critically, neither witness was connected to the accused through the same pastoral and parental trust relationship that was central to the Crown's case against him, and their personal circumstances differed materially from those of the complainant (at [139]-[140]).

Regarding the 1992 correspondence, the 1996 police interview admissions, and the 2015 psychological report, the court found that while this material could establish a particular type of sexual interest, it did not demonstrate a tendency to act upon that interest in a non-consensual way (at [142]). The temporal gap between the alleged offending (1986 to 1987) and those later events further weakened probative value (at [142]-[143]). Even if the evidence were found to have significant probative value, the court held it should be excluded under section 101 of the Evidence Act 1995 because the risk of unfair prejudice substantially outweighed probative value. The court noted the particular difficulty of directing a jury not to treat legally permissible conduct as reprehensible given the accused's clerical status and the current climate surrounding allegations against clergy (at [144]).

Orders Made

  • Evidence identified by the Crown as cross-admissible tendency evidence is admitted, limited to the two particular tendencies found to have significant probative value.
  • Evidence of uncharged acts is not admissible as tendency evidence but is available as context and relationship evidence.
  • The "other evidence" described in the Crown's tendency notice does not have significant probative value and is not admitted; alternatively, it is excluded under section 101 of the Evidence Act 1995.

Key Takeaways

  • Under R v Bauer [2018] HCA 40, evidence of charged acts in a single-complainant sexual offence case can carry significant probative value as cross-admissible tendency evidence where the acts are not remote in time and are not materially different in nature, even where the same complainant is the source of all accounts (at [120], [135]).

  • A tendency to commit sexual assault without consent requires more than proof of a sexual interest in a particular category of person. The Crown must also show a tendency to act upon that interest in the manner alleged, meaning non-consensually. Evidence of long-term consensual relationships with other partners does not, without more, satisfy that requirement (at [139]).

  • Where "other evidence" relied upon for tendency purposes is temporally removed from the charged offending and establishes only a legal sexual interest rather than a propensity for non-consensual conduct, it is unlikely to reach the threshold of significant probative value under section 97(1)(b) of the Evidence Act 1995 (at [142]-[143]).

  • Section 101 of the Evidence Act 1995 may exclude tendency evidence even where significant probative value is established. Jury directions can ordinarily address prejudice arising from an accused's religious vocation, but the court found that directing a jury to disregard the accused's sexual orientation when assessing legal but potentially disapproved conduct created an unacceptable risk of unfair prejudice that directions could not adequately cure (at [144]).

  • Evidence of uncharged acts that lack the hallmarks of the charged offending, particularly an absence of force or non-consent, may be characterised as context or relationship evidence under section 293 of the Criminal Procedure Act 1986 rather than as admissible tendency evidence (at [136], [146]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995

Cases
- BP v R [2010] NSWCCA 303
- Ceissmann v R [2015] NSWCCA 74
- DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Demirok [1976] V.R. 244
- DPP v RDT [2018] NSW CCA 293
- DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
- Hughes v R (2017) 263 CLR 338; [2017] HCA 20
- IMM v R (2016) 257 CLR 300; [2016] HCA 14
- JG v R [2014] NSWCCA 138
- Jones v R [2014] NSWCCA 280; (2014) 246 A Crim R 425
- McPhillamy v R [2018] HCA 52; (2018) 92 ALJR 1045
- Mol v R [2017] NSWCCA 76
- Pfenning v R [1995] HCA 7; 182 CLR 461
- R v Bauer [2018] HCA 40; (2018) 92 ALJR 1045
- R v Carroll (2002) 213 CLR 635; [2002] HCA 55
- R v Dent [2016] NSWSC 99
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434
- Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
- Sokolowskyi [2014] NSW CCA 55, 239; (2014) 239 A Crim R 528