Citation: R v S.I.M [2020] NSWDC 503
Court: District Court of New South Wales
Date: 2 September 2020
Judge: Priestley SC DCJ
Background
The accused faced four counts of sexual intercourse without consent on a single indictment. Count 1 involved one complainant (X) and counts 2, 3 and 4 involved a second complainant (Y). All four alleged offences are said to have occurred during the same night, at the same premises, following a wedding attended by the accused, both complainants, and others.
The Crown case was that after the group returned to X's home in the early hours of the morning, the accused entered X's bedroom and digitally penetrated her while she slept, then went to the lounge room and committed three further acts of sexual assault against Y, who was asleep on the couch. The accused was arrested and denied any sexual assault. He acknowledged contacting Y the following day but said it was to obtain drugs.
The accused applied for the count involving X to be heard in a separate trial from the three counts involving Y. His application was supported by two main arguments: that the evidence across the counts did not meet the threshold for cross-admissibility as similar fact evidence, and that there was a reasonable possibility the two complainants had concocted or coloured their accounts after disclosing to each other on 19 February 2019, two days after the alleged events.
Legal Issues
- Whether count 1 (involving X) should be tried separately from counts 2, 3 and 4 (involving Y) under the Criminal Procedure Act 1986 (NSW), s 29
- Whether the evidence relating to each complainant was cross-admissible, and if so, on what basis: tendency evidence, coincidence evidence, or transaction evidence
- Whether the risk of concoction between the complainants was sufficient to warrant separate trials
- Whether evidence of sexual activity between X and a third party (LM) on the same night was admissible, including under s 293 of the Criminal Procedure Act
Decision
Priestley SC DCJ dismissed the application for separate trials. His Honour found that the offences arose from the same set of circumstances and formed part of a series of offences of the same or similar character within the meaning of s 29(1)(b) and (c) of the Criminal Procedure Act, and that no sufficient reason existed in the interests of justice to require separate hearings.
On the cross-admissibility question, the court declined to admit the evidence as tendency evidence but held it admissible as coincidence evidence. The alleged offending against both complainants occurred at the same premises, during the same night, in materially similar circumstances: the accused allegedly approached each complainant while she was asleep or semi-conscious and digitally penetrated her. The court found the probative value of this coincidence was not substantially outweighed by unfair prejudice to the accused, and that the risk of concoction, while a relevant consideration, did not displace that conclusion.
The concoction argument was examined carefully. The court acknowledged that X and Y had communicated about their experiences before giving police statements, and that this required scrutiny. However, the existence of independent corroborating circumstances, including the accused's text message to Y asking whether she "didn't feel violated," reduced the force of the concoction concern sufficiently for a joint trial to proceed. The assessment of concoction risk was ultimately characterised as a matter for the jury.
On the s 293 issue, the court held that evidence of sexual activity between X and LM on the same night was admissible. Although s 293(3) of the Criminal Procedure Act ordinarily restricts the adducing of such evidence, his Honour found the s 293(4) exception applied. The evidence was relevant both to the accused's alternative theory that LM had been the person in X's bedroom, and to the issue of concoction raised by the defence.
Orders Made
- The accused's application for count 1 to be heard separately from counts 2, 3 and 4 was dismissed.
- The evidence of count 1 is admissible in the trial of counts 2, 3 and 4 as coincidence evidence (not tendency evidence).
- The evidence of counts 2, 3 and 4 is admissible in the trial of count 1 as coincidence evidence (not tendency evidence).
- Pursuant to s 293(4), s 293(3) does not apply, and evidence of the sexual activity between X and LM on the evening of 16/17 February 2019 may be adduced by either party, subject to any further application, in both trials.
Key Takeaways
- Coincidence evidence, rather than tendency evidence, provided the operative basis for cross-admissibility here: the striking similarity in the circumstances of the alleged offending against each complainant during the same night at the same premises was sufficient to satisfy the test.
- A concoction argument does not automatically warrant separate trials. Where independent circumstances support the reliability of the accounts, the risk of collusion between complainants is a matter the jury can assess, rather than a reason to sever the indictment.
- Under s 29 of the Criminal Procedure Act, offences arising from the same set of circumstances or forming part of a series of similar offences may be joined and tried together absent a sufficient reason in the interests of justice to the contrary.
- The s 293(4) exception to the restriction on sexual history evidence was engaged where such evidence was directly relevant to the defence's identification theory and to the concoction issue raised by the accused.
- In determining separate trial applications involving multiple complainants, courts weigh the probative value of the cross-admissible evidence against the prejudice to the accused and the overall interests of justice, rather than treating any one factor as determinative.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 29, 293
Cases:
- Sutton v The Queen (1984) 152 CLR 528
- De Jesus v R [1986] HCA 65
- R v Mostyn [2004] NSWCCA 97
- O'Leary v R (1946) 73 CLR 566
- R v Player [2000] NSWCCA 123
- Adam v R [1999] NSWCCA 189
- Harriman v R (1989) 167 CLR 590
- TWL v R [2012] NSWCCA 57
- LJW v R [2010] NSWCCA 114
- DJS v R [2012] NSWCCA 9
- KRM v The Queen [2001] HCA 11
- R v Anna Zhang [2005] NSWCCA 437